The government should prevail on its limited appeal, but probably at the cost of some delay in a matter prosecutors say is urgent.
The government should prevail on its limited appeal, but probably at the cost of some delay in a matter prosecutors say is urgent.
L ate Friday, the Justice Department filed a limited appeal of Judge Aileen Cannon’s order granting former president Donald Trump’s request for a special master to conduct a privilege review of documents seized by the FBI last month from his Mar-a-Lago estate, pursuant to a search warrant.
Specifically, the government’s appeal to the Eleventh Circuit, styled as a “motion for partial stay pending appeal,” narrowly challenges those parts of Judge Cannon’s rulings that (a) preclude investigators from using approximately 100 seized documents with classified markings in connection with DOJ’s criminal investigation of Trump; and (b) compel the government to submit those documents to the special master’s privilege review.
While the Justice Department contends that Cannon was wrong in the entirety of her rulings – the original September 5 order granting the special master, and this week’s September 15 order denying the government’s request for limited reconsideration — prosecutors are not challenging her appointment of senior federal judge Raymond Dearie as special master, nor the privilege review of the other approximately 11,000 documents and other items seized from Mar-a-Lago on August 8.
Notwithstanding the strength of the government’s legal position and the narrowness of the appeal, prosecutors are nevertheless taking a risk here. Once an appeal is filed, jurisdiction over the subject matter of the appeal is transferred to the appellate court — otherwise, superior and inferior courts could be acting on it simultaneously, and at cross purposes. Consequently, jurisdiction over the 100 classified document will now by exercised by the Eleventh Circuit (assuming it grants the motion to stay relevant proceedings while it considers the government’s appeal).
The government may prevail in the appellate court. Indeed, I believe this is highly likely. Nevertheless, prosecutors are now beholden to the Eleventh Circuit’s broad discretion over when to consider and decide the appeal. There is no set timeframe for that. It is reasonable to anticipate that the court will be expeditious in light of the importance of the matter — an investigation of a former president, involving the mishandling of highly classified information, some of which may still be missing. But that’s no sure thing.
As I explained Friday, if the government had acquiesced in the order to include the 100 classified documents in the special-master review, that portion of the review could have been completed in a few days, especially given Judge Cannon’s directive that Judge Dearie prioritize those documents ahead of the rest. By appealing, the government may actually delay access to the classified documents that investigators could have gotten sooner under Cannon’s special-master process.
Yet the Justice Department concluded that it had no real choice on that score. The government is obliged to object to the disclosure of highly classified information absent the demonstration of a need to know. In this case, some of the documents were so top-secret that the FBI’s personnel involved in the seizure of the documents did not have high enough security clearances to see them — this despite their being counterintelligence officials in the bureau’s National Security Division.
In the order she issued Thursday, Judge Cannon took umbrage at the DOJ’s argument that the government would be harmed by disclosure of the classified documents to Judge Dearie, formerly a high-ranking Justice Department official and judge on the Foreign Intelligence Surveillance Court. The government made clear in Friday’s filing that it meant no disrespect to Dearie; the point is that even officials with high clearances, including judges, are not supposed to get access to top-secret intelligence unless there is a compelling need. Ergo, if Trump has no basis to seek a privilege review of the classified documents, there is no need at all for a special-master review, and thus no need to disclose top-secret intelligence.
More to the point, what the government strenuously objects to is disclosure of the documents to Trump’s counsel in connection with the privilege review, as Cannon has directed. It is not clear whether these lawyers have the requisite security clearances. But beside that, in what was the most interesting shot across the bow in DOJ’s appellate motion, prosecutors complained that Cannon had ordered disclosure to Trump’s lawyers, “potentially including witnesses to relevant events” (emphasis added) in the midst of a criminal investigation.
This appears to be a reference to M. Evan Corcoran, who is one of Trump’s attorneys in the litigation. Corcoran was deeply involved in Trump’s response to a May 11 grand-jury subpoena demanding production of all documents with classification markings. Trump’s team turned over 38 classified documents, made no claim that documents had been declassified, and represented that the package of 38 comprised the entirety of the documents with classified markings on the premises – a representation that was clearly false, though whether Corcoran and others knew it was false is not yet known. By intimating that Corcoran may be an important witness, prosecutors are not accusing him of wrongdoing at this point; their implication, however, is that Corcoran’s continued participation as counsel in the case is problematic. (It would violate professional ethics rules for a lawyer who was an actor in the facts of the case to participate as counsel in related litigation; Corcoran appeared as counsel when Trump petitioned for a special master, and in Trump’s most recent filing in opposition to the Justice Department.)
That intrigue aside, the Justice Department should prevail in its appeal.
Prosecutors reprise their contention that Trump has no standing to challenge the government’s use of the classified documents. As I’ve explained (see, e.g., here and here), the documents marked classified are clearly government records, which makes them government property in which the former president has no possessory interest. The Presidential Records Act makes clear that the government owns the documents. And although the PRA guarantees a former president access to records generated during his presidency, this is not the same as a right to possess or control them. Plus, having flouted the PRA, Trump would be ill-suited to claim its benefits even if they were availing. In any event, Cannon erroneously conflated Trump’s ownership interest in some of the items seized in the search with standing to assert challenges based on other items (e.g., the classified documents). As the Justice Department reiterates, a movant has to establish standing with respect to each relevant document and claim.
Furthermore, Trump’s claim of executive privilege in connection with the classified documents is frivolous. I believe the proposition that a former president retains executive privilege distorts the Constitution (though the Justice Department concedes, at least for argument’s sake, that Trump may have viable executive-privilege claims with respect to at least some of the approximately 11,000 non-classified seizures).
With regard to the classified government intelligence documents, however, prosecutors contend that whatever vestige of executive privilege Trump may arguably retain may not be invoked against the executive branch itself – and particularly in connection with (1) a criminal investigation (a context in which the Supreme Court famously rejected an executive-privilege assertion in United States v. Nixon [1974]) (2) involving classified information and possible national-security peril (which implicate plenary responsibilities of the incumbent president). On that score, the government notes that the classified documents at issue “are not merely relevant evidence; they are the very objects of the offense” under investigation – a reference to the Espionage Act felony of mishandling national defense secrets, to which prosecutors add that the documents are also pertinent to potential impeachment crimes.
Prosecutors berate Cannon for indulging Trump’s suggestion that he may have declassified the documents. As they recount, Trump never actually claimed that he had declassified the documents, though it was his burden to do so if that’s what he’s alleging; and Cannon never actually found that he had declassified them, she just surmised that the subject was in dispute, though it was not — there is no doubt that the documents in question are marked classified and Trump has brought forward no evidence that they have been declassified.
In addition, the grand-jury subpoena required Trump to surrender documents “bearing classification markings”; these documents bore such markings, so the law required their surrender regardless of whether Trump eventually claims to have declassified them. Trump never claimed privilege – neither in court under the PRA, nor in the grand jury proceedings when the documents were subpoenaed. Furthermore, the government notes Trump’s internally contradictory claims: At the same time he intimates that he may have declassified the documents and kept them as “personal” property under the PRA, he is also claiming the documents are covered by executive privilege because they constitute communications between the president and his advisers regarding executive duties — which would make them the opposite of personal and bolster the argument that they are classified.
Finally, prosecutors vigorously contend that Cannon’s suspension of their ability to use the documents in the criminal investigation is damaging and lawless. Here, they rely again on the testimonial statement provided by the FBI’s top counterintelligence agent. In describing the connection between the two relevant inquiries – (a) the intelligence community’s assessment of national-security damage from the mishandling of classified information, which Cannon permitted to proceed; and (b) the FBI’s criminal investigation, for which Cannon prohibited most uses of the documents – prosecutors steer clear of using the phrase “inextricably intertwined,” a term Cannon seized on in her ruling Thursday. That is, rather than claim the two tasks cannot be bifurcated, prosecutors more modestly argue that bifurcating them would be difficult and counterproductive. That is something the court has no right to require, the government posits, given that Trump has established no basis to claim that he has standing, that he may invoke executive privilege against the executive branch, or that he declassified the documents at issue.
Moreover, by suspending the government’s ability to use the documents as a basis for filing criminal charges, the judge intruded on the executive branch’s plenary constitutional power to make prosecutorial decisions. (Note, in that regard, the Justice Department’s implication that criminal charges for mishandling classified information are under serious consideration.)
The Justice Department’s arguments are convincing. They highlight the factual emptiness and legal flaws in former president Trump’s claims, and thus the unjustifiable leaps of logic Judge Cannon made in indulging those claims. The government should prevail. In launching this appeal, though, prosecutors are courting additional delay — the very thing they seek to avoid in a criminal investigation involving top-secret intelligence that has been non-securely stored, and some of which may be missing.