Thread by @Teri_Kanefield

Trump's lawyers filed their response to the DOJ's 11th circuit appeal in the Judge Cannon special master case.

Here's Trump's response: …dn-prod.news-engineering.aws.wapo.pub/publish_docume…

Shall we read it together?🤓

We left off with the DOJ giving Kash Patel use immunity to secure his testimony. . .
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Wait, what's use immunity? Here's a quick explainer⤵️ (This is from my blog)

Trump has an uphill battle here because the 11th circuit has already sided with the DOJ once, and allowed the DOJ to continue its criminal investigation as this appeal is pending.

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So here we go. It's 67 pages, so if you like reading legal briefs, this is your moment.

They're trying to argue that the 11th Circuit doesn't have jurisdiction to hear this appeal at all because the appointment of a special master wasn't a final, appealable order.

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The problem is they already lost once on this argument with the preliminary injunction issue, so they'll lose again.

Then they argue that Judge Cannon didn't "abuse her discretion" with the special master order.

"Abuse of discretion" is just the legal standard. . .

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Judges have a lot of discretion. To overturn certain kinds of order on appeal, you have to show that they abused that discretion.

No surprise, Trump's main argument is that he had full authority to keep or declassify these documents.

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Here is the theory of his case (#1) Trump had the authority to designate any of his records as 'personal.'

Therefore, according to Trump, the dispute is over whether or not these records are personal or presidential. (#2)

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See what his lawyers are trying to do?

How cases are framed matters. The DOJ says this is a stolen documents case. Trump stole documents. End of story.

Trump says, "Not so fast. I can't steal personal documents so the issue is whether they were presidential or personal."

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He will lose. It's absurd to think that nuclear secrets are personal.

Yesterday a Florida court sanctioned his lawyers for that frivolous RICA case against Hillary Clinton and the DOJ.

This is a losing argument and fails the laugh test, but it isn't frivolous.

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(The laugh test is known to criminal defense lawyers everywhere.)

He acknowledges is a procedure for declassifying documents, but says as president, he had final authority over everyone involved in the process, so had authority to circumvent the process any way he chose.

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He returns to his greatest hits: This is a PRA (presidential records act) matter, so the remedy was a civil suit, not a criminal suit.

Again, this is an attempt to frame the issue as a dispute under the PRA instead of a former guy walking off with government documents.

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Notice how smoothly his lawyers (Trusty & Kise) transition from "the president can do whatever he wants" to "Trump is a private citizen entitled to protection from government abuse." (1)

Apparently a former president now a private citizen creates "special circumstances."(2)
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He argues that all records are presumptively personal and because he didn't return them, they are presumptively his and therefore he has a possessory interest in them and it's the government's burden to prove they were NOT personal.

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He claims that because he remains politically active, a criminal inquiry or indictment harms him by harming his reputation.

You have to give his lawyers credit for their nerve in advancing that argument with a straight face.

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Basically, this brief was cut-and-pasted from Trump's earlier briefs, with the claim that the 11th circuit doesn't have the authority to review the special master case until the entire case is completed more fully fleshed out.

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The 11th Circuit already found (in deciding the stay issue) that Trump is likely to lose this appeal on the merits.

I do not expect the DOJ's appeal to break Trump's losing streak.

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https://twitter.com/davidsanger/status/1591135481349439488

The DOJ filed and won a motion to expedite the appeal.

DOJ's reply is due Nov. 17.
Oral arguments will be soon after.
I'd say a decision this month.

If the DOJ wins this appeal, the entire case is thrown out. It's as if it never happened . . .

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. . .with one exception: Team Trump, knowing Trump was under criminal investigation, made the unbelievably stupid decision to file this action and tick off the prosecutors.

Pro tip: If you're under criminal investigation, don't go out of your way to tick off the prosecutors.
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