Judge Aileen Cannon’s latest Mar-A-Lago ruling was benchslapped by the 11th Circuit Court

Written by

In its warrant yesterday overturned Judge Aileen Cannonorder – regarding the approximately 100 documents with classified markings seized by the former president Donald Trump’s Mar-A-Lago residence– the 11th Circuit not only overruled Judge Cannon, it went out of its way to detail the many ways in which Judge Cannon had fundamentally misunderstood the law.

In my more than 25 years of practice as a criminal and civil litigator (including three years as an Assistant US Attorney), I do not think I have read an appellate decision that was more dismissive of the lower court. The 11th Circuit sent a clear message to Judge Cannon and Trump: stop doing this.

Let’s take them one by one.

1. The 11th Circuit (in footnote 4 of its decision) explicitly poured cold water on the idea that the FBI raid was designed solely to harass Trump:

The Supreme Court has recognized an exception to this general rule—where “the threats to enforce statutes against the appellants are not made with any expectation of valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass the appellants.” Plaintiff has not made such an allegation here, nor do we see any evidence in the record to support one.

2. The 11th Circuit overruled Judge Cannon’s finding that the prospect of being sued was an injury from which Trump deserved protection:

Second, we find unpersuasive plaintiff’s insistence that he would be prejudiced by a criminal investigation. “To bear the inconvenience and expense of a prosecution for a crime, even of an innocent person, is one of the painful obligations of citizenship.” Cobbledick v. United States, 309 US 323, 325 (1940).

In my more than 25 years of practice…I don’t think I’ve read an appellate decision that was more dismissive of the lower court.

3. The 11th Circuit literally held that none of the relevant factors favored giving Trump his injunction:

In short, none of the Richey factors favors the exercise of equitable jurisdiction over this case. It is therefore highly likely that the United States will succeed in demonstrating that the district court abused its discretion in exercising jurisdiction over plaintiff’s motion as it relates to the classified documents.

4. The 11th Circuit also ignited Judge Cannon’s attempt to split the baby by holding that the intelligence community could continue the national security review of the 100 documents with classified markings, but the FBI could do no criminal work with those documents:

This distinction is untenable. through [Assistant Director of the Counterintelligence Division of the FBI] Kohler’s affidavit has adequately explained to the United States how and why its national security controls are inextricably linked to its criminal investigation. When matters of national security are involved, we must “give substantial weight to an agency’s declaration.”

5. The 11th Circuit also upheld the Justice Department’s argument that allowing the Special Master—or Trump’s defense team—to review the 100 documents with classified markings would cause “irreparable harm” to the United States.

The United States also argues that allowing the special master and plaintiff’s counsel to examine the classified records separately would cause irreparable harm. We agree. The Supreme Court has recognized that the protection of classified information, for reasons that are “too obvious to require extended discussion, must be committed to the broad discretion of the responsible authority, and this must include a broad discretion to determine who may have access to them.” As a result, courts should order review of such materials only in the most extraordinary circumstances. The record does not allow us to conclude that this is such a circumstance.

6. Finally, the 11th Circuit fundamentally held that the DOJ had already met the essential element of a possible prosecution under the Espionage Act (18 USC Section 793(d).

Here’s what Section 793(d) says:

“Whoever lawfully possesses [a document] in connection with the national defense, which information the possessor had reason to believe might be used to the detriment of the United States or to the advantage of any foreign nation… willfully retains the same and fails to deliver the same upon demand to the officer or employee thereof national defense. The United States has the right to receive it” violates the Espionage Act and “must … not more than ten years in prison” for each document intentionally retained.

Yesterday the 11th Circuit held:

The documents in question contain information “the unauthorized disclosure of which could reasonably be expected to cause unusually serious harm to national security.”

The 11th Circuit almost certainly chose the parallel language to send Judge Cannon and Trump a message: the former president has no legal defense to an indictment for violating the Espionage Act. If he is indicted, the indictment will not be dropped. If he is convicted, the conviction will not be overturned.

In short, as long as the documents were properly marked as classified in the first place, Trump is screwed.

In summary, my take on the 11th Circuit’s response to Judge Cannon’s order is best captured by Vincent LaGuardia Gambini in his opening statement in the 1992 film My cousin Vinny:

“Everything that guy just said is bullshit.”

About the author

Leave a Comment