The DOJ is arguing there is no executive privilege over the material, the confidential documents cannot be Trumps property and you cannot separate the investigation from ODNI - egregious harm to the public. They’re right too. They are not arguing against attorney client review by a special master. They are seeking a stay on the injunction specific to the 100 classified documents only because of the harm it would cause. Quite frankly, they’re actually giving this judge an off ramp on very poorly thought out order. She should take it.
I still see no context trying to differentiate what a special master can do or can not do. The DOJ filing appears to be asking for a complete stay of Cannon's ruling appointing the special master. However I am not a lawyer -- I will let others with legal expertise interpret the DOJ filing and provide full context.
Yes, I get that and that is a tougher row to hoe for Garland. Not in the DC court of Appeals because that is Garlands old seat and the dems own any decisions there. But this goes to the appeals court in Florida doesn't it? If it goes to the appeals court in DC, then, I don't need to even talk about what the legal issues are. Just tell me what the DOJ wants. Trump may appeal it up to the Supreme Court too. And Garland might win that too but as I said, "he will be working for it, and another fifty motions to come."
I don’t know what you guys are reading or agreeing to here. Paragraph after paragraph reads the government is asking for the injunction to be lifted from the 100 confidential documents. They are saying we will deal with the special master stuff later but the investigation cannot be allowed to stop on the confidential documents. https://storage.courtlistener.com/recap/gov.uscourts.flsd.618763/gov.uscourts.flsd.618763.69.0_2.pdf Update to this: Also, I did not know ODNI stopped it’s review of all documents because it was so intertwined with investigative bodies at FBI/DOJ. Judge Judy really didn’t think her initial order through.
You are jumping in late and I covered your points earlier, so you are not the bearer of news. I am not going backwards in the discussion.
I was arriving at my earlier conclusions from language included about the stay. I see now the stay is limited to certain aspects of Cannon's court order--- as evidenced in the conclusion of the DOJ filing (below). The summary yesterday from Above the Law regarding the DOJ filing is interesting and provides some insights. It also notes the case will be appealed to the United States Court of Appeals for the Eleventh Circuit covering Alabama, Florida, and Georgia. BREAKING: DOJ Appeals Mar-A-Lago Special Master Order On Grounds Of 'Umm, You Know We're Part Of The Executive Branch, Right?' Luckily the 11th Circuit is full of reasonable jurists, fiercely protective of precedent and norms ... LOL. https://abovethelaw.com/2022/09/bre...know-were-part-of-the-executive-branch-right/ This afternoon, the Justice Department noticed an appeal of US District Judge Cannon’s appointment of a special master to sort through records seized in the August 8 search of the former president’s country club for improperly retained government property. It simultaneously requested a stay of the parts of her order which bar it from using those documents in its criminal investigation, but only insofar as it pertains to documents bearing classified markings. Judge Cannon’s ruling on Monday not only acceded to Donald Trump’s request for special master to filter out attorney-client documents, it empowered the master to pull out personal property as well as anything which might be subject to a claim of executive privilege. And, critically, it barred prosecutors from using any of the seized items in the ongoing criminal investigation. In a minor concession, the court did allow the Intelligence Community to continue its assessment of the fallout from highly sensitive classified material being expropriated by the former occupant of the Oval Office and taken God only knows where. As a threshold matter, prosecutors remind the court that there is no circumstance under which Donald Trump could ever claim a possessory interest in classified documents, which are definitionally government property. “Plaintiff does not and could not assert that he owns or has any possessory interest in classified records; that he has any right to have those government records returned to him; or that he can advance any plausible claims of attorney-client privilege as to such records that would bar the government from reviewing or using them,” they argue. This moots the analysis Judge Cannon was kind enough to do on Trump’s behalf to justify her equitable jurisdiction under Richey v. Smith, 515 F.2d 1239 — Trump can’t be injured by being deprived of classified documents which never belonged to him in the first place. And furthermore, whatever residual post-presidency executive privilege Judge Cannon is conjuring out of dicta from the National Archives dispute over the January 6 Congressional inquiry (which Trump lost!) and US v. Nixon (which Nixon lost!), there has never been a suggestion that a sitting president, much less a former one, can hoard classified documents as a means of thwarting criminal prosecution by the executive branch. Finally, the Justice Department points out that the FBI is itself a part of the Intelligence Community. The court has already acknowledged that the IC’s interest in the leakage of classified documents is more important than whatever interest Trump’s lawyers are claiming here. (Or not claiming, since they handed in a bunch of irrelevant nonsense, relying on Judge Cannon to fill in the blanks for them.) It’s simply not workable to exclude the FBI from that intelligence review and from assessing any criminal conduct which might have arisen from the wrongful possession of highly sensitive — not to say valuable — government secrets. The Intelligence Community’s review and assessment cannot be readily segregated from the Department of Justice’s (“DOJ”) and Federal Bureau of Investigation’s (“FBI”) activities in connection with the ongoing criminal investigation, and uncertainty regarding the bounds of the Court’s order and its implications for the activities of the FBI has caused the Intelligence Community, in consultation with DOJ, to pause temporarily this critically important work. And not for nothing, but there were upwards of 100 documents with classified markings in the boxes removed from Mar-a-Lago, plus a whole bunch of empty classified folders. And the FBI has a pretty strong interest in figuring out what was in those folders and where it went. The FBI would be chiefly responsible for investigating what materials may have once been stored in these folders and whether they may have been lost or compromised—steps that, again, may require the use of grand jury subpoenas, search warrants, and other criminal investigative tools and could lead to evidence that would also be highly relevant to advancing the criminal investigation. Prosecutors have asked Judge Cannon to issue an immediate stay on the parts of her order which bar them from using the seized classified documents in their investigation and force them to disclose them to a special master. If the court does not issue the stay, the DOJ will seek immediate relief from the 11th Circuit. Tomorrow, we’ll get more information about the negotiations between Trump and prosecutors over the identity and remit of the special master. Today’s filings only touch lightly on that, but prosecutors seem willing to tip their hands a bit more since Judge Cannon issued her bizarre ruling. The Department now says that it will “make available to Plaintiff copies of all unclassified documents recovered during the search,” as well as returning any personal items which “were not commingled with classified records and thus are of likely diminished evidentiary value.” Similarly, prosecutors filed a motion to unseal a status report on the DOJ’s filter team process. Whether the government’s relative chattiness is because every revelation makes the former president look guiltier is unclear. But if Trump is going to rattle the cage and make the DOJ put his bullshit on the public docket, we’re not mad about it.
The judge seeking consent from the Trump team puts them in a legal bind. They and Trump have been arguing in the media that these documents were declassified and covered under executive privilege, and that privilege extends beyond presidency. If they concede these documents do not fall under executive privilege and they are in fact classified documents, the case they have been making in the media is out of the window. Now if they oppose the stay on these documents based on executive privilege and declassification then Judge Judy will have to decide whether these top secret documents are in fact covered by executive privilege and have been declassified. Which they are not. This judge is stupid. Anyone could have seen this coming but Trump appointed any dimwit with a federalist society membership to the bench and now she is in the thick of it. She should have just ordered a stay on the documents based on their classification alone. Taken the off ramp and be done with it but stupid people do stupid things.
Imagine if Hillary Clinton was caught loading a plane with exactly the same boxes as the ones seized by the FBI containing classified information. More… every single person who has worked with Trump and not needed a pardon says the same thing.
As a follow up to this, I have not seen any information the Trump team put in a position statement on the motion to stay the classified documents in question. That would probably be their best move if so.