by Harry Litman
The U.S. 11th Circuit Court of Appeals on Wednesday evening reversed U.S. District Court Judge Aileen Cannon’s refusal to grant the Justice Department a stay in the case of the Mar-a-Lago documents (Cannon’s second outrageous piece of work related to the purloined White House records). The appeals court decision had the feeling of awakening from a bad dream.
Many commentators, including me, had emphasized that the legal and logical failings in Cannon’s rulings were not subtle or even matters of judicial philosophy. Rather they were blunders driven by ludicrously poor and possibly partisan judicial reasoning.
They incorporated such basic missteps as ignoring the need for proof and evidence, and they repeatedly intruded on executive branch territory over issues such as whether assessing damage caused by Donald Trump’s treatment of classified documents required the participation of the FBI.
The 11th Circuit’s rebuke was definitive. In a unanimous, “per curiam” opinion by two Trump-appointed judges and one Obama-appointed judge, the decision departed from Cannon’s bottom line and nearly all of her slipshod reasoning. “Per curiam” emphasizes the ruling; it means the court spoke in one voice, rather than two judges joining the authored opinion of the third.
And given how quickly the 11th Circuit judges acted, it is a safe bet that the opinion was being written even as the parties’ filings were coming in. That suggests that the appeals judges saw the case as not close, and that they recognized an urgent need to halt the damage to national security and the Justice Department’s criminal investigation that Cannon had inflicted.
On the core question of whether Trump has some possessory interest in the classified documents that were at issue, the court could not have been more definite: “We cannot discern why (Trump) would have an individual interest in or need for any of the 100 documents with classification markings.”
That sounds restrained, but — ouch — in appellate judge speak it’s basically a way of saying Cannon was nuts to reject the department’s request to stay her ruling that documents marked classified should be out of bounds for investigation.
In a similarly no-nonsense tone, the court mowed down supposition after supposition that had formed the ramshackle scaffolding of Cannon’s thinking. Of course there is injury to the United States if it cannot pursue a criminal investigation and national intelligence review related to classified documents. Obviously Trump has not even attempted to show a need for the information in the documents. Plainly there is no special injury to Trump if he’s the subject of a criminal investigation.
This last point was particularly significant because it took Cannon to task — politely, again — for her obnoxious ruling that Trump perhaps shouldn’t be prosecuted because he is a former president
As for Trump’s coy efforts to have it both ways on the declassification issue — suggesting he declassified documents but providing no evidence — the 11th Circuit went even further in torpedoing it than Judge Raymond Dearie, the special master who has been appointed in the case at Cannon’s behest, had done.
Dearie told Trump’s lawyers they would have to put up or shut up on declassification evidence. But the 11th Circuit panel took the issue entirely off the table. It reasoned that whether Trump had declassified documents was a “red herring” because declassification would not change the documents’ contents or render them personal. The content, in other words, is what determines whether a document belongs to Trump or the government.
Presumably, the appeals court’s ruling greatly simplifies Dearie’s special master task. He will be able to make quick work of filtering out what is covered by attorney-client privilege among the documents. As for the balance, including what documents might be covered by executive privilege, the 11th Circuit seems to require specific evidence of Trump’s personal interest in the content to even put documents into dispute. In any event, the sideshow of Cannon’s special master set-up should not impair the vigorous pursuit of the criminal investigation into the Mar-a-Lago documents.
In all, the 11th Circuit signaled a huge reduction if not the elimination of Cannon’s mischief-making.
Trump tried again to push his declassification defense in an interview Wednesday night with Fox News’ Sean Hannity. “There doesn’t have to be a process,” he said.” If you’re the president … you can declassify … even by thinking about it.” The circuit court ruling blows that fantasy out of the water.
Cannon has suffered a humiliating admonishment in her first case of any prominence. The obvious lesson for her is that she needs solid law backed by actual evidence in order to hold for the former president going forward. In light of the 11th Circuit’s instructions, by far the worst of what she did will be remedied, and the system has dodged a Cannonball.