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There is crazy shit going down in Florida with Trump’s warrant case, where US District Judge Aileen Cannon just denied the government’s motion to stay her order not to use classified documents to investigate Donald Trump for the crime of stealing classified documents — at least not yet. And if you are thinking, “Holy shit, that’s crazy! That’s like a judge ordering the cops not to look at the sack of marked bills it found in the robber’s freezer!” you are exactly right. We have left the realm of actual law, and entered Crazytown in the state of Banana Republic, USA.
As we all know by now, after months of negotiations and a subpoena for documents which went largely ignored, the FBI was granted a warrant based on a showing of probable cause that they would find classified documents at Donald Trump’s Mar-a-Lago club, which they did. After failing to challenge the warrant for two weeks, during which time the Justice Department conducted a filter for anything which might be subject to attorney-client privilege, Trump and his lawyers filed a batshit pile of nonsense masquerading as a lawsuit. By sheer luck, they happened to wind up in the courtroom of Judge Aileen Cannon, one of the Trumpiest of Trump appointees, who spent the past month giving them everything their hearts desired.
Not only is she appointing senior Judge Raymond Dearie as special master to filter out documents covered by attorney-client privilege, replicating a task already undertaken by the government in the two weeks while Trump’s lawyers sat there with their thumbs up their asses, but she’s tasked him with “making recommendations to the Court as to any privilege disputes between the parties (including any formal assertions of executive privilege).” Not to put too fine a point on it, but that is fucking nuts.
There is no argument that the executive branch owns all these documents, and the Presidential Records Act vests jurisdiction over executive privilege disputes with the US District Court in DC. Trump’s lawyers have suggested that it’s possible he could have declared them personal records, although there’s a procedure for that, and it doesn’t involve telling Melania to stuff papers in her brassiere and making a run for it. They’ve also suggested, without coming out and actually saying it, that Trump might have declassified the secret ones before he left the White House. Which is ridiculous, but wouldn’t make them any less government property were it actually true.
That is crazy enough, but what Judge Cannon did last night is so off-the-wall that it’s entirely possibly that even the Eleventh Circuit, which is dominated by Trump appointees, is going to toss it out. Because last week the Justice Department offered Judge Cannon an off-ramp in the form of a motion for partial stay to allow them to continue using documents with classified markings in their investigation, and to exempt those documents from the special master review. The government gets really, really touchy about letting people who are not the government look at top secret defense secrets. We are, after all, talking about stuff that can only be examined in a SCIF.
But instead of taking the off-ramp, Judge Cannon put the pedal to the metal. In a fuckbonkers denial of the motion, she brushed aside the sworn declaration by the deputy chief of the FBI’s counterintelligence division that the investigations of the intelligence fallout and the criminal activity involved in the unlawful retention of classified data are two sides of the same coin. Instead she adopted Trump’s position that the government is inherently untrustworthy, and so the DOJ needs her eyes on its internal investigation at all times.
“[T]here has been no actual suggestion by the Government of any identifiable emergency or imminent disclosure of classified information arising from Plaintiff’s allegedly unlawful retention of the seized property,” she scoffs, adding that “the Government’s submissions on the subject do not establish that pausing the criminal investigative review pending completion of the Special Master’s work actually will impede the intelligence community’s ability to assess ‘the potential risk to national security that would result from disclosure of the seized materials.’”
But that’s not even the craziest part! Because classification authority flows from the sitting president, and if President Joe Biden or his designee says that something is classified, then it is by definition classified. And that applies to any document that Donald Trump might claim to have declassified on his way out of the White House. Just to make that really clear, Trump can claim as a defense that the documents weren’t classified when he took them, but if Joe Biden says the document is classified as of today, THEN IT IS CLASSIFIED.
And yet Judge Cannon treats the classification status of these documents as an issue on which there could be an actual disagreement.
“The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion,” she suggests.
She even seems to entertain the idea that Trump could have declassified government documents and then converted them to personal use.
The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them. The second is that Plaintiff has no plausible claim of privilege as to any of these documents [ECF No. 69 p. 7 (categorically asserting that the “classified records at issue in this Motion . . . do not include personal records or potentially privileged communications”)].
That is pure Calvinball. Classified documents are definitionally government property, and even before he left office, Donald Trump had no personal “possessory interest” in them. And he can’t assert executive privilege (much less attorney-client privilege) against the sitting president with regard to documents which are the exclusive domain of the sitting president. This is so ridiculous that any argument about it inevitably descends into gobsmacked tautology. But here we are, with Judge Cannon making no bones about inventing a new set of rules for the former president who installed her on the bench after he’d lost the election. Wheeee!
“[E]venhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice,” writes the former Assistant US Attorney in the very office which is prosecuting this case with the DOJ’s counterintelligence division. “Based on the nature of this action, the principles of equity require the Court to consider the specific context at issue, and that consideration is inherently impacted by the position formerly held by Plaintiff.”
And, to top it all off, she’s ordering the government to “Make available for inspection by Plaintiff’s counsel, with controlled access conditions (including necessary clearance requirements) and under the supervision of the Special Master, the documents marked as classified and the papers attached to such documents.”
There is no fucking way the DOJ is going to hand Top Secret documents over to the special master to be stored in his office, much less let Trump’s freak show lawyers see them. So look for and appeal to land at the Eleventh Circuit tonight. Hold onto your butts, kids!
[Trump v. United States, Docket via Court Listener]
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