DOJ Asks 11th Circuit To Overturn Entire Cannon Order

PALM BEACH, FLORIDA - FEBRUARY 11: A car passes in front of former President Donald Trump's Mar-a-Lago resort on February 11, 2022 in Palm Beach, Florida. Published reports indicate that possible classified material ... PALM BEACH, FLORIDA - FEBRUARY 11: A car passes in front of former President Donald Trump's Mar-a-Lago resort on February 11, 2022 in Palm Beach, Florida. Published reports indicate that possible classified material was among documents recovered by the National Archives in January from the Mar-a-Lago home. (Photo by Joe Raedle/Getty Images) MORE LESS

The Florida judge who blocked the DOJ’s investigation into classified records held at Mar-a-Lago undermined her own ruling, prosecutors said in a filing before the 11th Circuit Court of Appeals.

The DOJ asked the appeals court to overrule the entire order issued by U.S. District Judge Aileen Cannon for the Southern District of Florida, which blocked prosecutors from using records they seized from Mar-a-Lago in August for their investigation.

The order also installed a special master, U.S. District Judge Raymond Dearie for the Eastern District of New York, to review the records.

When Cannon issued the ruling, she conceded that the DOJ had not shown “callous disregard” for Trump’s rights in its investigation.

The DOJ emphasized in its Friday filing that it had bent over backwards for Trump not only in the course of its criminal investigation, but in the year and a half effort to return the records after Biden took office.

“To the contrary, the government first sought these records through voluntary requests,” the filing reads. “DOJ then obtained a subpoena and gave Plaintiff a chance to return all responsive records.”

“Only when investigators learned that Plaintiff’s response was likely incomplete did they seek a search warrant,” prosecutors wrote.

The idea of “callous disregard” is crucial to whether Cannon has the ability to weigh in on the case, the DOJ said. It forms the first — and arguably the most important — of four factors that judges must weigh when considering challenges to government searches before charges are filed.

In this case, the DOJ noted, Cannon agreed that the government did not act with “callous disregard.”

“Nothing like this was shown in this case, as the district court acknowledged,” prosecutors wrote in the filing.

The DOJ already won a preliminary battle in its fight to overturn Cannon’s order, which legal experts described as ranging from bizarre to corrupt. The 11th Circuit approved an earlier request from the DOJ to suspend Cannon’s order as it applied to classified records seized during the searches.

In that earlier order, the 11th Circuit also seized on the question of “callous disregard,” finding that Cannon’s admission that the government had not exhibited that quality suggested that she overstepped in her ruling.

“The same analysis applies to all of the seized materials — and, thus, the entire proceeding,” the DOJ said on Friday.

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