On Wednesday, the United States Court of Appeals for the Eleventh Circuit narrowed the order of U.S. District Judge Aileen M. Cannon by allowing the Justice Department to regain access to the roughly 100 classified documents seized among roughly 11,000 documents at Mar-a-Lago. It was not unexpected. As previously discussed, this was the “smart move” by the Justice Department to first seek access to this small group of documents with classified markings, the strongest of its arguments against the order. In the meantime, former President Donald Trump gave a full hour-long interview with Fox’s Sean Hannity, a risky decision in a case with potential criminal charges. In the interview, Trump suggested that he could declassify any or all documents “with a thought.” It is a position likely to further alienate both the Special Master and the appellate court, which have already expressed frustration with the lack of support offered for declassification claims.
Since the night of the Mar-a-Lago raid, many of us have asked for the evidence of such an order. While the government must show a knowing violation (as opposed to classified status), the Trump team has repeatedly declined to produce evidence of such a written or oral order, including any declaration from Trump or staff on such a decision.
The Hannity interview may explain why. In the interview, Trump did not claim any written order and brushed aside any need for any process or even expression of an intent to declassify:
Hannity: “A president has the power to declassify.”
Trump: “Correct.”
Hannity: “You have said on Truth Social, a number of times, you did declassify.”
Trump: “I did declassify yes.”
Hannity: “What was your process to declassify?”
Trump: “There doesn’t have to be a process, as I understand it. You know, there’s different people say different things. As I understand, there doesn’t have to be. If you’re the president of the United States, you can declassify just by saying, ‘It’s declassified.’ Even by thinking about it. Because you are sending it to Mar-a-Lago or where ever you are sending it. There doesn’t have to be a process. There can be a process, but there doesn’t have to be. You’re the president. You make that decision. So when you send it, it is declassified. I declassified everything.”
If a president could declassify with a thought, he could literally declassify every document in the possession of the U.S. government with a constitutional Jedi-like power. No one would know that there was declassification other than the fact the he removed the documents or treated them as declassified.
Trump also appears to be relying on a legal advice defense (as he has with the challenge to the 2020 election and Jan. 6th questions). He makes direct reference to being given different accounts of the controlling law. There are some lawyers who believe that a president has immediate and unlimited authority over classified information. However, Trump is stating that he may not even have to utter a word of declassification to effectively negate the process of declassification as well as the status of documents.
That is clearly not going to go over well with the courts. Special Master Dearie has already lost patience with the Trump team in failing to support declassification claims and, correctly, said that he will proceed under the view that these documents remain classified in the absence of such proof.
At the same time, the 11th Circuit handed down its decision to curtail the earlier Special Master order to allow prosecutors to resume their review of documents marked classified.
Judge Cannon’s order on the classified documents was the most controversial element of her appointment. The former president’s failure to support his declassification claims only magnified the problem with that part of the order. However, the court also noted that “even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.”
The three-judge panel (which included two Trump appointees) granted the motion for a partial stay and noted that the Trump team offered no countervailing evidence “to undermine the United States’s representation—supported by sworn testimony—that findings from the criminal investigation may be critical to its national-security review.”
The panel stated that “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 panel relied heavily on Department of the Navy v. Egan where the Supreme Court ruled in 1988 that “the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.”
The question now is whether the Justice Department will push forward to seek to challenge the rest of the order and the very basis for the appointment of the Special Master. There are roughly 11,000 documents and 1,800 other items being held from the search on Mar-a-Lago. As I wrote previously,
“The Eleventh Circuit could always go further on its own to strike down the order or indicate unease with the order as a whole but the Justice Department is only seeking a narrow remedy on the strongest claim dealing with classified documents. The decision on the motion pending appeal could give the DOJ an insight on whether the court is willing to go further on a more general rejection of the order.”
This was a very strong opinion, though the panel emphasized that “We stress the limited nature of our review: this matter comes to us on a motion for a partial stay pending appeal. We cannot (and do not) decide the merits of this case.” The Justice Department could elect to take the win and let Dearie proceed with his review (while litigating control or possession before the lower court). Conversely, it could take this strong language as an indication that the panel could be skeptical of the very appointment itself.
What is clear is that the investigation can now proceed with the full use of these classified documents to try to establish knowing violation by either Trump or his aides, including lawyers who certified or stated that there were no further classified documents at Mar-a-Lago.
Here is the opinion: 11th Circuit opinion
U.S. District Judge Aileen M. Cannon overruled [1] an order by Special Master Raymond Dearie that said former President Donald Trump needed to provide any “final” objections or disputes regarding the items seized by the FBI during its unprecedented raid on Mar-a-Lago on 8/8/22. She said there “shall be no separate requirement” for Trump “at this stage, prior to the review of the Seized Materials, to lodge ex ante final objections to the accuracy of Defendant’s Inventory, its descriptions, or its contents.”
Dearie has scheduled next status conference for 10/6/22.
The special master’s deadline to review the documents twas extended from 11/30 12/16/22.
[1] https://justthenews.com/sites/default/files/2022-09/gov.uscourts.flsd_.618763.125.0.pdf
Deadlines extended:
https://www.documentcloud.org/documents/22924672-motion-for-extension-of-time
It is nonsense like that that is a direct consequence of the stupid interferance by the 11th circuit court of appeals.
DOJ has got what it wants. now it will stall everything else as long as possible.
I find it interesting that DOJ is NOT providing copies of anything marked classified now to either the court of defendants.
How many recall that Clinton did not have a special master, DOJ did not confiscate her server,
The FBI allowed Her lawyers to review the contents of her server and decide what government was allowed to have.
Dearle and Cannon near certain have TS/SCI clearance.
Trump’s lawyers have TS/SCI clearance.
Trump has clearance equal to the current president except in two ways.
He can no longer declassify or classify anything. and Biden can deny him specific access if he chooses.
Regardless, expresidents are the only people aside from the president who can access anything without a need to know.
There is no legal problem with Trump having access to copies of ALL seized material.
But following the law would openly admit that Trump was ALWAYS allowed to possess this material – Regardless of what it is.
Yesterday, FNN aired two episodes about this legal saga:
1.in a 5′ segment On “Sunday Night in America”, former AG Bill Barr weighed in with his opinion [1]:
(a) The classification thing is a “red hering” because nothing really depends on the classification on the documents.
(b) The case depends on two things: How sensitive are these documents? What is the governments evidence of shenanigans at the scene misleading the government?
(c) Does DOJ have enough evidence to justify an indictment on the principles of prosecution? Would it be proven as an exercise of disgression to bring charges against FPOTUS?
(d) The governments position is that FPOTUS was not lawfully in the possession of these documents.
[e] Charges of mishandeling sensitive information are based on national defense information.
2. One of Trumps lawyer, James Trustym sounds off on “Life, Liberty & Levin”. He basically said what was allerady published [2]
[1] https://video.foxnews.com/v/6312839713112
[2] https://www.msn.com/en-us/news/politics/trump-lawyers-pressed-on-seized-mar-a-lago-documents-by-special-master-in-nyc/ar-AA123pPF
Is this true?
https://twitter.com/mrddmia/status/1572975561701466113
1. Yes: https://www.washingtontimes.com/news/2022/aug/22/tapes-stored-bill-clintons-sock-drawer-could-affec/
2. Guess Where Obama, Clinton and Both Bush’s Had Their Presidential Documents Stored:
https://www.onenewspage.com/video/20220923/14956099/Guess-Where-Obama-Clinton-and-Both-Bush-apos.htm
The disputes, arguments, conflicting opinions and insults evinced right here in the comments section represent a microcosm of what could happen-and indeed may be happening– even among the more knowledgeable members of our national government, -IF, IF a sitting president did not have unfettered control and final authority over declassification of material, including that related to national security, and as acknowledged by DOJ itself.
To that end, it seems that whatever methodology employed by a sitting President to effect these determinations may be irrelevant, –as long as the material remains in his control. Once a sitting president has made such determination, the PROBLEM appears to be one of NOTICE to others, those with a “need to know,” -including the originating agency. I say “appears to be” because this is conjecture on my part, I had a security clearance years ago when I clerked for the DOD, but that was in the 90s.
11th Circuit:
“… Plaintiff’s effort to raise questions about classification status is a red herring. As the government has explained (Mot. 15-17), even if Plaintiff could show that he declassified the records at issue, there would still be no justification for restricting the government’s use of evidence at the center of an ongoing criminal investigation. Again, Plaintiff offers no response. Plaintiff likewise fails to rebut the motion’s showing that the injunction is irreparably harming the government and the public. …”
Your comment is wholly non-responsive to the gist of mine.
I did not say a word about the 11th Cir. opinion; neither does that opinion have anything to do with my comment.
Nor did I opine as to gov’t’s use of such documents for criminal investigation, -I was expressly talking about the constant back and forth ON THIS BLOG SITE about the classification or declassification of documents (and parallels to national arguments among “legal experts”). thanks anyway.
My point — which is the same as theirs — is that the back and forth about classification is a red herring.
You are, of course, free to indulge that red herring here.
Anonymous: I repeat: I am not talking about either Trump or the 11th Cir opinion. Apparently you are, which has nothing to do with my original comment. You’ve created your own red herring with your numerous comments about Trump being in possession of stolen classified documents.
OUTSIDE of my original comment and your irrelevant comment, we both agree that the 11th Cir. finds declassification irrelevant to access for criminal investigation. No more, no less. thanks anyway
–(and I will, as always, let you get the last word in, so you will not erroneously interpret my subsequent silence as acquiescence.) thanks
Last time I checked the government has to prove Trump guilty, this case is about Trump proving himself innocent. The entire process has been flipped on its head. Trump’s team’s response should be “Prove I didn’t”. That is how our system of justice is supposed to work. But all laws and norms have been flipped on their heads to get Trump. What are they so afraid of? My guess is that he has shown how corrupt every institution of government in the US is and he, in his second term was going to dismantle the corrupt agencies and either fire or prosecute the guilty traitors in the bureaucracies.
Trump has filed a claim in civil court. The burden of proof in motions and petitions is on the moving party.
In this case Trump, but the standard for civil cases is low, and for non-final motions even lower.
The 11th circuit court of appeals improperly elected to accept an appeal by DOJ.
In an appeal the burden of proof is on the moving party also – but it is a much higher burden.
Contra the 100th circuit court of appeals Trump is not even required to defend.
The starting point for an appeal is the assumption that Cannon’s preliminary orders are valid.
The Burden is solely and completely on the DOJ to disprove that.
Further, nearly all appeals and particularly this one on on the LAW, issues of fact must all be assumed in favor of the non-moving party.
In the end the result was highly unlikely to be different.
But the 11th circuit court of appeals should not have taken the appeal and should not have ruled on the facts.
They should have waited for the SM to resolve the issue, which he was doing.
Turley reveals some scepticism about the President’s executive authority over declassification, but avoids the alternative question: which bureaucrat has been bestowed with the executive authority to contradict the President on a matter or manner of declassification?
Recall JFK showing classified photos of Cuban missile sites on national television. Those photos were pulled from an envelope with Top Secret markings, and they were the Crown Jewels of our spy satellite programs. Had anyone else done that, they would have been committing multiple felonies. But for the president, those photos became ‘magically’ declassified at that instant, by the mere fact that the President himself turned the pictures towards the TV cameras.
“If a president could declassify with a thought, he could literally declassify every document in the possession of the U.S. government with a constitutional Jedi-like power. No one would know that there was declassification other than the fact the he removed the documents or treated them as declassified.”
And yet, if you read the SCOTUS decision on Navy vs Egan, that is precisely what they are saying. They are saying that neither Congress nor SCOTUS itself has any Constitutional power to limit, control, direct, nor criminalize any decisions POTUS makes regarding the handling or classification of national secrets. Without such limiting powers, it is obvious that POTUS literally could declassify everything “with a thought.”
Now on a more practical note, it does stand to reason that if POTUS literally wants mountains of classified material in the possession of government declassified then he must communicate that decision so those in possession of those documents are aware and may re-file them appropriately. However, that is not this situation.
President Trump took documents for his personal use. The notion that that can somehow be “a crime” requires the extremely delusional assumption that, in the exercise of their recognized Constitutional powers, POTUS (or any other elected official) could “make a mistake” placing them in legal jeopardy from another branch of government. The notion is prima facia absurd, and violates the separation of powers. It would be like saying SCOTUS judges must go to prison for ruling one of Congress’ laws unconstitutional – Congress literally has no power to pass such a law, so in the case of a POTUS “giving” themselves documents to take into retirement it MUST be presumed they performed all the actions (declassification, authorization to possess the documents) to do so.
The alleged crimes are refusing to return documents with classified markings that were subpoenaed by a grand jury and obstruction.
There is no such crime.
18 USC 793, 1519 and 2071 are part of the criminal code, whether you can admit it or not.
It is not about admitting it.
We have been through this before.
You are wrong.
You are reading things into the law that are not there
and missing things that are there.
A crime is still AN ACT.
There are few rare exceptions and the Espionage act contains none of those.
Can you point out a single instance anytime anywhere where any person has been prosecuted for mere posession.
Even the portion of the law you hang you hat on – unauthorized possession is ONE element,
One which in Trump’s case – you STILL have not met.
This nonsense with left wing nuts like you constantly making up the law makes rational discussion impossible.
God forbid anyone should give you any power in a criminal context.
Your arguments are also complete idiocy. Clinton had actual unauthorized posession of thousands of classified documents and was not prosecuted. She was not prosecuted for possession – because that is NOT enough.
Mere posession – particularly authorized possesion which you clearly have in Trumps case absent proving actual theft AFTER Biden’s inauguration, She should have been prosecuted for butting those documents onto the internet, for providing the to unauthorized people, for acquiring them illegally, for allowing them to be copied to Huma Adedin’s laptop. These are all ACTS.
Do you have a single illegal ACT ?
As I said: there are ALLEGED crimes that were the basis for the warrant. I did not say that Trump would be indicted. You cannot admit that the warrant ALLEGES crimes.
Also, 793e is not based on “mere possession.” It literally says “Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it …” We know that the documents were subpoenaed AND Trump willfully retained them.
“Do you have a single illegal ACT ?”
Yet again: refusing to turn over subpoenaed documents is an act under our laws.
Obstructing an investigation is another act under our laws.
A judge read the entire affidavit and determined that there was probable cause that these crimes had been committed. Will Trump be indicted for these crimes? We will have to wait and see. Thanks to the 11th Circuit stay, the FBI can now continue its investigation.
Your dancing arround with word games.
The warrant lists sections of the Federal criminal code it claims were violated.
The claims in th warrant have no evidence at all. That is normal for warrants.
The Affadavit is supposed to contain the allegations supporting the crimes claimed in the warant.
In the unredacted protion of the affadavit no crimes are alleged.
Worse the immplication LITTERALLY is that DOJ is seeking to recover declassified crossfire huricane material.
Maybe there is something substantive in the redacted portion of the affidavit,
But todate we have nothing beyond a list of statues that might have been violated.
None of the know facts supports a warrant.
I do not know whether Trump will be indicted.
DOJ has themselves between a rock and a hard place.
If they do not indict Trump – the presumption will be this was political.
If they do, they are going to have to prove a case.
And thus far they have not shown anything.
And this of course ignores the ranting demented person in the whitehouse who wants DOJ/FBI to go after 2/3 of the country – starting with Trump.
With respect to your other claims.
Trump’s possession was OBVIOUSLY authorized.
The president is authorized to possess NDI anywhere.
And read the rest of the law. Unauthorized posession ALONE in not enough.
The entirety of the espionage act was beaten to death repeatedly in 2016 with regard to Clinton.
It has not changed.
Trump is not President. The FORMER President is not authorized to possess NDI.
Not authorized by who or what? The authorization existed. Where is a law that says: “The FORMER President is not authorized to possess NDI.”? Don’t quote statute numbers quote the law that mentions the former President and its link.
Those inanimate documents were in the same place as they were one second later when the Presidency changed hands.
“Trump is not President. The FORMER President is not authorized to possess NDI.”
False, he is only not authorized to Declassify or classify.
I would further note you are making a ridiculously stupid legal argument.
You are claiming that Trump legally possessed these documents up until the moment that Biden took the oath of office and that
magically Biden’s act caused Trump to have committed a crime without acting.
Trump’s possession does not become unauthorized because Biden takes the oath of office.
The only means by which an ex-president could commit the crime you are alleging would be if NARA went to court, won, and Trump refused a court order to turn over the materials. That has not occured.
Please read Obama’s EO. Trump TODAY can request any classified documents within the US government. Only Biden has the power to say no.
Whether you like it or not Trump REMAINS authorized.
I would further note that the PRA bars the Current president from access to the records of the prior president – even if they are classified without going to court.
You keep missing the fact that neither NARA, nor DOJ nor FBI, nor the WH have actually gotten a court order.
DOJ/FBI/WH/NARA have studiously avoided “going to court” – because the standards there favor Trump, and because they are trying to manufacture a crime from whole cloth and Trump complying with a court order would obliterate that.
When government behaves unusually – and the behavior here is unusual in many many many ways – it is govenrment we should be suspicious of.
“Yet again: refusing to turn over subpoenaed documents is an act under our laws.”
Yet, again it is NOT an illegal act.
“Obstructing an investigation is another act under our laws.”
False there is a specific crime of obstruction of justice, Please read the statute.
Again this was beaten to death when Mueller idiotically tried to speculate that Trump engaged in obstruction of justice.
It does not include exerising every legal option available to you to protect your rights.
On of your first clues is that the crime is “obstruction of justice”. Not obstruction of government.
Another clue is that Obstruction is nearly impossible without an underlying crime.
“A judge read the entire affidavit and determined that there was probable cause that these crimes had been committed. ”
Magistrates do that all the time. And they do so badly – all the time.
We have been through the FISA warrants – which were drafted by nearly the same people – and managed to persuade a judge far more capable than Reinhart, despite the fact that DOJ ajnd FBI knew at the time they were selling A Hoax as evidence to the FISA court.
You really think ordinary people Trust the FBI/DOJ or the courts on this ?
“Thanks to the 11th Circuit stay, the FBI can now continue its investigation.”
Nothing ever stopped the FBI from investigating.
The 11th circuit appeal court erred, but ultimately the FBI was getting the material marked classified.
But that has never been necessary to an investigation.
Your still looking for an illegal ACT, and despite your efforts to read the law overly broad, you still do not have one.
You can not even get a Single Element of 18 US 793(e).
And you keep using obstruction such that the innocent would never be allowed to claim their own innocence.
“refusing to return documents with classified markings that were subpoenaed by a grand jury”
Before you drain your brain thinking of the crime you need to get your dates straight. The FBI picked up records after the Grand Jury Subpoena. You have problems with dates. You have been trying to pass off an August 2022 press release as if it came a couple of years earlier.
One can’t trust you .
POTUS can not declassify with a thought, because even the constitution requires the president to ACT to excercise power. The presidents constitutional powers with respect to national security are unlimited, but they are not metaphysical.
For there to be a crime
Trump must have moved the documents AFTER he was no longer president,
as the president has the power to move classified documents anywhere.
Or he must have done something with them at MAL – such as sold them to the Saudi’s
In BOTH cases the documents must NOT have been declassified
Given the evidence we currently have there is no probable cause of a crime, and therefore the warrant was unconstitutional.
The burden of establishing the legitimacy of the warrant rests on DOJ. That is more than a legal burden that can be met in secret with a magistrate. The damning evidence of prior politicization of the FBI/DOJ requires that DOJ/FBI prove their actions are not political to the PUBLIC, NOW.
That proof is far more important that catching Trump, in the unlikely event he actually committed a crime.
It is more important that the people KNOW that our law enforcement is not tainted by political corruption that that a dozen criminals go free.
It is likely more important that the people KNOW that our law enforcement is not corrupt, than protecting whatever secrets these documents contain.
If these documents are the collusion delusion documents that Trump declassified THIS GOVERNMENT MUST FALL.
That is a REQUIREMENT of the declaration of independence.
What is occuring with Trump right now is much like DeSantis’s exposure of the hypocracy of the elites at Martha’s vineyard.
Democrats impeached Trump for acts that are far less egregious and far more justified.
Yet we were told that it did not matter if there was evidence of misconduct by Biden – Trump could not go after him.
Now Biden is using the actual power and tools of the executive – DOJ/FBI to go after a political enemy WITHOUT evidence. and democrats no merely think that is OK they are cheering it on.
There is a real legal standard to be met that establishes whether an act that has political benefits is otherwise legitimate. And that is whether there is probable cause that a crime has been committed.
There is obvious probable cause regarding Biden family corruption.
There is so far not an actual crime alleged regarding Trump.
There is no credible allegation that he stole anything, there is no credible allegation that he provided anything to anyone not entitled to have it.
Of course he could declassified all docs with a thought, but he would only remove those classified docs that were important to him — not just boxes and boxes of paper.