A three judge panel of the 11th circuit has granted the Justice Department motion to stay a key part of Judge Cannon’s recent special master ruling. Cannon ruled that they could not continue using the classified documents in their criminal investigation while the special master, Judge Dearie, is doing his work. This three judge panel has overruled Cannon on that point. It’s an important win for the DOJ, though it is perhaps slightly less consequential since Judge Dearie has signaled he plans to move rapidly to do his review. Two of the three judges are Trump appointees.
There is some sense, for some, that these decisions backed by Trump appointees provide some vindication for the apolitical or at least non-partisan nature of the federal judiciary. By some extremely low standard that may be the case. But it is important to remember that the arguments Trump’s attorneys are making are so baseless and free of any basis in law or constitution that it strains even the most hackish judge’s ability to lend a hand. As the judges say at one point: “For our part, we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings.”
The documents are in most cases agency documents. They’re not even presidential records, properly speaking, which themselves must be turned over to the National Archives. They are highly classified. And by most standards, the default assumption has to be that documents marked classified and which the government says are classified are in fact classified. As they say, it is entirely unclear what interest or right private citizen Donald Trump would have in any of these documents. Not only are they not his. He has no right or need to see them.
The whole thing is absurd.
The documents are the property of the US government. The current President speaks for the US government. A former President doesn’t own them or have any need to see them, let alone keep them at his villa in a closet or in a desk drawer. Trump stole federal property. He misused these documents and endangered US national security by stealing and refusing to return them. Sometimes the danger to national security tied to classified documents is more notional than real. When they describe the work of US agents spying for the US abroad or even within foreign governments the danger is real, especially to the spies!
Given the constitutional ambiguities of the presidency, one could if very generous argue that the initial theft was inadvertent or a misunderstanding. The repeated warnings and refusal to return them over show that’s not the case. He broke a lot of laws and the laws will become more and more meaningless if he isn’t held to account.