Litman: Whew — the 11th Circuit slapped back at Trump’s specious claim to the Mar-a-Lago documents

The 11th U.S. Circuit Court of Appeals Wednesday night ruled on U.S. District Court Judge Aileen Cannon’s refusal to grant the Justice Department a stay of reprieve in the Mar-a-Lago documents case (Cannon’s second outrageous work related to the white man’s stolen documents house) repealed ). The appeals court’s decision felt like waking from a bad dream.

Many commentators, including myself, had emphasized that the legal and logical flaws in Cannon’s judgments were not subtle or even legal-philosophical problems. Rather, they were errors driven by ridiculously bad, and possibly partisan, reasoning by the judiciary.

They have incorporated such fundamental missteps as ignoring the need for proof and evidence, and they have repeatedly intruded into executive branch territory to answer questions such as whether assessing the harm caused by Trump’s handling of classified documents was required to involve the FBI.

The 11th Circuit’s rebuke was final. In a unanimous “per curiam” opinion by two Trump-appointed judges and one Obama-appointed judge, the decision departs from Cannon’s bottom line and almost all of her shoddy reasoning. “Per curiam” emphasizes the verdict; it means that the court spoke with one voice, rather than two judges joining the authored opinion of the third.

And given how quickly the 11th Circuit judges acted, it’s safe to say that the Opinion was written when the parties’ filings came in. This indicates that the appellate judges did not see the case as closed and that they recognized an urgent need to stop the damage to national security and the Justice Department’s criminal investigation that Cannon has inflicted.

On the core question of whether Trump has title to the classified information in question, the court could not have been clearer: “We cannot see why [Trump] would have an individual interest or need in any of the 100 classified documents.”

That sounds conservative, but — ouch — in the appellate judges’ language, it’s basically a way of saying Cannon was insane to deny the department’s request to stay their decision that documents marked confidential should be blocked from investigation.

In a similarly matter-of-fact tone, the court mowed down one conjecture after another that had formed the ramshackle framework of Cannon’s thinking. Of course, not being able to conduct criminal investigations and national intelligence reviews of classified documents hurts the United States. Apparently, Trump didn’t even try to show any need for the information in the documents. Apparently, there is no particular harm to Trump from being the subject of a criminal investigation.

That last point was especially important because it took Cannon to task — again, politely — for her disgusting decision that perhaps Trump shouldn’t be prosecuted because he’s a former president

As for Trump’s timid efforts to have both sides on the declassification issue — suggesting he released documents but produced no evidence — the 11th Circuit Judicial Circuit went even further to torpedo them than Judge Raymond Dearie, who Special Master, who was appointed in the case at Cannon’s bidding, had done.

Dearie told Trump’s attorneys they must produce evidence of the declassification or shut up. But the 11th Circle panel took the issue completely off the table. It argued that asking whether Trump had declassified documents was a “red herring” because declassification would not change the content of the documents or make them personal. In other words, the content determines whether a document belongs to Trump or the government.

Presumably, the judgment of the Court of Appeal greatly simplifies Dearie’s special master’s task. He can quickly filter out what falls under the attorney-client privilege. As for the balance, including which documents might fall under executive privilege, the 11th Circuit appears to require specific evidence of Trump’s personal interest in the content in order to even challenge documents. In any case, the sideshow of Cannon’s special championship lineup shouldn’t detract from the vigorous pursuit of the criminal investigation into the Mar-a-Lago documents.

All in all, Circuit 11 signaled a huge reduction, if not elimination, of Cannon’s mischief.

Trump tried again to push his declassification defense in an interview with Fox News’ Sean Hannity on Wednesday night. “There doesn’t have to be a process,” he said. “If you’re the president … you can break the secrecy … even if you think about it.” The district court’s ruling blows that fantasy out of the water.

Cannon suffered a humiliating admonition in her first high-profile case. The obvious lesson for her is that to apply to the former president in the future, she needs a solid law backed by actual evidence. Given the 11th Circle’s instructions, by far the worst of what she did is fixed and the system dodged a cannonball.

@HarryLitman

https://www.latimes.com/opinion/story/2022-09-22/mar-a-lago-documents-11th-circuit-aileen-cannon Litman: Whew — the 11th Circuit slapped back at Trump’s specious claim to the Mar-a-Lago documents

Alley Einstein

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