When last we left donald trump's legal woes revolving around his theft of Presidential papers and lax handling of classified documents, the 11th Circuit appellate was reviewing whether Judge Cannon's efforts to shield trump with a Special Master delaying tactic was even legal.
Well, the 11th Circuit came down hard on their decision against trump. Let Emptywheel guide us to our table so we can feast on the Schadenfreude:
The 11th Circuit has, as expected, vacated Aileen Cannon’s order enjoining the government from investigating Donald Trump, remanding it with an order to dismiss the suit...
The opinion’s key point is that, were they to rule for Trump, it would create an impossible precedent, either halting much pre-indictment access to seized material, or creating an exception only for former Presidents.
(quoting from the court ruling) In considering these arguments, we are faced with a choice: apply our usual test; drastically expand the availability of equitable jurisdiction for every subject of a search warrant; or carve out an unprecedented exception in our law for former presidents. We choose the first option. So the case must be dismissed.
[snip]
The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.
Much of the opinion is an Richey analysis–the analysis Cannon worked so hard to manufacture. It’s not all that interesting. The key point is that, as Jay Bratt told Judge Cannon on August 30, the precedent in the circuit is clear.
But in conducting a Richey analysis, which it ultimately called a “sideshow,” the opinion took repeated swipes at the efforts Cannon went to make shit up to benefit Trump...
The only thing specific to Trump’s status as an ex-President, besides the opinion’s repeated reminder that he is not special, is the way with which the opinion twice dismissed Trump’s claim that if he had designated these documents his personal property under the Presidential Records Act, it would allow him to keep it. That’s nonsense, of course, because warrants authorize the seizure of personal property as a general rule...
A very conservative panel, including two Trump appointees, just confirmed that he’s not special anymore.
Emptywheel does note the court gives trump seven days to file an appeal, which trump's lawyers will likely do because it will both delay the FBI a little further as well as give trump the hope that taking it to the Supreme Court where three of his own appointees and two more Far Right Justices can arguably rewrite the entire legal system to protect trump's ass.
It's a part of trump's defense that he's claiming "personal property" regarding everything seized by the FBI at Mar-A-Lago back in August. Problem is, we're talking about a lot of classified materials that nobody else besides trump can argue were declassified to allow trump to claim them as personal. And there's still a high likelihood trump took the type of classified documents - especially regarding nuclear secrets! - that he couldn't have declassified by himself at all.
For any of this legal fight to fall trump's way, the Supreme Court itself when it gets his appeal is going to have to either declare the Presidential Records Act fully Unconstitutional (as well as accept that Cannon was within her powers to set up a Special Master that nearly every legal expert - and now the 11th Circuit judges - claims she never had power to do), or that trump as ex-President Loser of the Popular Vote (Twice) retains Executive Privileges in ways that would break the checks and balances of the Constitution itself.
Right now, it's looking like the Justice Department will be able to continue their investigation into what documents trump actually took, and assess which documents are still unrecovered, and figure out just how badly trump violated our nation's security.
I hope trump doesn't sleep well for the rest of the month. I hope he starts plotting which nation he can fly to avoid extradition first chance he gets.
I hope the Special Counsel that AG Garland set up last month is ready to arrest trump for every federal law he broke.
It's December, kids. Time to be festive. IO SATURNALIA.
1 comment:
The Presidential Records Act (PRA) of 1978, 44 U.S.C. ß2201-2209, among other things, places the responsibility for the custody and management of incumbent Presidential records with the President. This is important as it locates the initial misconduct in question here in DC instead of Florida, giving jurisdiction to judge Howell (I think) not judge Cannon.
I would imagine judge Cannon's behavior to improve, actually, as she has her entire judicial career in front of her and this isn't doing it any favors. By design, she'll be around long after Fergus isn't and any loyalty she feels toward him will then be moot.
Waiting until reality kicks in for her is not the best case scenario, however, and getting the matter away from her courtroom would be best.
SCOTUS seems to be slowly coming to terms with the holes in its own feet it has recently shot, and perhaps will be motivated to abandon the sinking USS Fergus while some few Americans still listen to its rulings.
I'm reminded of something a girlfriend of a recently convicted Oaf Creeper said: "He has never faced any consequences for anything he has done." Will that continue for Fergus? The 11th circuit said "The answer is no."
-Doug in Sugar Pine
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