DOJ Appeals Trump's Flunky Judge’s Appalling Order

When Donald Trump sought to have a special master appointed to delay the Justice Department's invesigation of his theft of highly sensitive government documents - including a foreign nation's nuclear capabilities - he did not make the request to the court where the matter had already begun.  No, he went forum shopping and petitioned a judge (pictured above) he had appointed in the waning days of his regime after he had lost the 2020 election who, guess what, did Trump's bidding to the horror of legal experts.  The consensus in the legal community is that the ruling is appalling and perhaps the nicest thing that can be said is that Judge Cannon is beyond her depth and ignorant of national security aspects of the case.  (Many of Trump's judicial appointments were based on the appointee's right wing ideology as opposed to competence).  A column in the Washington Post sums of the reaction of the legal community:  

The sheer volume of criticism on the opinion is remarkable, as is the ideological range of voices expressing it, from Harvard constitutional scholar Laurence Tribe to former attorney general William P. Barr.

And that was before the most recent revelations about how explosive the contents of the snatched documents may be. The Post reports: “A document describing a foreign government’s military defenses, including its nuclear capabilities, was found by FBI agents who searched former president Donald Trump’s Mar-a-Lago residence and private club last month.” These are so sensitive that “many senior national security officials are kept in the dark about them.”

Yet Cannon proposes that a special master should paw through these documents to determine if a former president who improperly retained them can keep the executive branch from seeing its own documents.

Moreover, Cannon’s attempt to divide the executive branch in two — allowing the intelligence community to proceed with the urgent national security review but preventing the Justice Department from investigating an explosive national security breach — is as untenable as it is unprecedented. And perhaps most egregiously, she takes the step of enjoining the executive branch from conducting its investigation, a shocking overreach that violates the separation of powers.

As the New York Times is reporting, the Department of Justice has filed a brief with Judge Cannon and politely asked her to amend her frightful order or else an appeal will be filed with the 11th Circuit Court of Appeals which legal experts predict will reverse Cannon and perhaps verbally bitch slap her in the process.   Here are highlights from the Times:

The Justice Department asked a federal judge on Thursday to revisit her decision to temporarily stop prosecutors from gaining access to classified documents seized from former President Donald J. Trump’s Florida home, arguing that her ruling was hindering the government’s effort to determine whether national security had been compromised.

In a pair of filings in federal court, lawyers for the department announced their intention to appeal key parts of Judge Aileen M. Cannon’s ruling. They said they would ask an appeals court to block those sections of her order if she does not agree to do so herself by next Thursday.

Judge Cannon’s order, issued on Monday, has prevented the department from using the documents, some marked as highly classified, in its investigation into Mr. Trump’s handling of sensitive government documents.

In the ruling, she said she planned to appoint an independent arbiter, known as a special master, to sift through the more than 11,000 documents and 1,800 other items the F.B.I. seized during a court-authorized search last month . . . .

The department, in forceful and foreboding language, argued that determining the national security implications of Mr. Trump’s retention of the documents was so intertwined with its criminal investigation that carrying out a separate risk assessment was impossible under the conditions imposed by the court.

Justice Department lawyers complained that the judge’s order was impeding efforts to determine whether there may yet be “additional classified records that are not being properly stored” and noted that the search had recovered empty folders marked as classified whose contents “may have been lost or compromised.”

The government and the public, the department added, “are irreparably injured when a criminal investigation of matters involving risks to national security” is frozen or delayed. . . . . prosecutors asked Judge Cannon to grant them immediate access only to the classified material, arguing that her ruling had been based on concerns about Mr. Trump’s personal materials — including medical and financial records — that were swept up in the search.

“The classification markings establish on the face of the documents that they are government records, not plaintiff’s personal records,” they said. . . . .Prosecutors added that Mr. Trump has no right to have classified government documents returned to him and there is no plausible claim that any are subject to attorney-client privilege.

Trump has claimed that he had declassified everything he removed from the Oval Office to his residence. But his lawyers have not made that same assertion in the courtroom, where there are professional consequences for lying.

Thursday’s filing was an attempt to place the onus back on Judge Cannon.

The submission of the filing, including the declaration that Judge Cannon’s order was creating national security problems, also added to the factual record the government could put before the appeals court.