(Photo by Spencer Platt/Getty Images)
Prosecutors in the Mar-a-Lago warrant dispute didn’t come out and call Judge Aileen Cannon an idiot hack last night. But they didn’t call her an idiot either.
The unsubtle dissolution of the court’s absurd legal reasoning appeared aa response in support of the government’s motion for partial suspension of the special master order. Having assumed equitable/anomalous jurisdiction to adjudicate a criminal Rule 41 motion never brought in a civil case, Judge Cannon proceeded to order a special master to adjudicate claims not only of attorney privilege -client, but also of the executive privilege, although there has been no executive privilege claimed, even to the extent that a former president can ever make such a claim and prevail over a waiver by the holder and , thereby thwarting a criminal investigation by an executive agency. He also ordered the government to stop using the seized evidence, according to an order! that no one has ever challenged! — in his criminal investigation, even as he allowed the national security investigation led by the Office of the Director of National Intelligence to continue.
On Friday, prosecutors took notice of his appeal and filed a motion to stay the special master warrant as it relates to documents bearing classified markings, arguing that the criminal and national security investigation are intimately linked, reminding the court that the FBI is part of the intelligence community. Trump’s lawyers responded by calling prosecutors liars and implying, without coming out and saying it, that Trump had possibly declassified the documents in secret, or even declared them personal property, again in secret, and was therefore free to stuff them in a suitcase and keep them. at your pool locker.
But it seems the government has had enough of this bullshit.
“Plaintiff has characterized the government’s criminal investigation as a ‘document storage dispute’ or an ‘overdue library book scenario,'” they feel. “In doing so, plaintiff has failed to address the potential harms that could result from mishandling classified information or the strict requirements imposed by law for the handling of such materials.”
“In reality, the plaintiff does not claim, much less provide any evidence, that any of the seized records bearing the classification marks have been declassified,” they add indignantly, reminding the court that “the plaintiff has now submitted multiple al… lengthy submissions to the Court that it must cease to be satisfied that it did in fact take any of these actions with respect to any of the seized records, including those at issue in the motion to stay.”
“In light of the classification marks, official cover sheets and other indicia of classification accompanying these materials … these possibilities should not be given importance without competent evidence being presented by the claimant,” they continue, noting the ‘absence of evidence or affidavits. and noting that “any record bearing classification marks was necessarily created by the government and is therefore not the personal property of the plaintiff.”
And not only does Trump have no proprietary interest in the government documents to justify so-called equitable jurisdiction here, but if the former president has been treating these records as unclassified, that fact is entirely relevant to the national security investigation of the government
“For obvious reasons, the Intelligence Community (“IC”) would have a pressing need to understand which previously classified records have now been declassified, why and how they were declassified, and the impact of that declassification, including the IC’s protection of its sources and methods and on the classification status of related records or information,” they argue.
But if Donald Trump insists on playing this silly game, and if the court insists on letting him, the government wants to remind all parties that there can be no executive privilege on documents that have been declassified and turned into personal property by enchantment magical behind closed doors in direct contravention of the procedures established in the Presidential Archives Act.
If Plaintiff really wants to suggest that, while he is President, he chose to classify records marked “SECRET” and “TOP SECRET” as his personal records for purposes of the PRA, then he cannot claim that the records themselves are protected by executive privilege, meaning that they are “presidential communications” made to further the “performance of his official duties.”
As for Cannon J., the government makes some similar observations, such as reminding him of “this Court’s recognition of its `limited power in this domain’ involving the exercise of equitable jurisdiction over an ongoing criminal investigation.”
The Court did not—and could not—appoint a special master to exercise roving “supervisory authority” over the government’s ongoing criminal investigation, against DE 84 at 4, or to adjudicate matters ultimately irrelevant to the Plaintiff’s potential claims of privilege, such as whether Plaintiff could have declassified seized documents bearing classification marks or whether Plaintiff could have designated those documents as his “personal” records for purposes of the PRA.
And, lest your honor forget that they have already taken notice of your appeal, prosecutors remind you that an airy gesture toward national security evidence coupled with an order to investigate its disclosure only to the half could meet a rather shameful fate at the hands of the jurists. who are not total pirates.
And to the extent that the Court’s requirement was to turn on the subjective “purpose” motivating the individual government personnel, that requirement could be subject to serious challenge for failure to “specifically state its terms” and “describe with a reasonable detail”. . . the restricted act or acts”. Fed. R. Civ. Page 65(d)(1). In attempting to draw what are ultimately unworkable distinctions, Plaintiff merely emphasizes that the government’s criminal investigative and national security missions overlap and reinforce each other.
The government has indicated it will file an appeal with the Eleventh Circuit if Judge Cannon does not issue a stay tomorrow. And if they do appeal, it’s unlikely they’ll limit their filing to simply challenging the provisions of the special master order that deal with classified documents.
The gloves are truly off now.
Trump vs. United States [Docket via Court Listener]
United States v. Sealed Search Warrant [Docket via Court Listener]
Liz Dye lives in Baltimore where he writes about law and politics.
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