Late Friday, the Justice Department filed its long-awaited appellate filing related to the special master order of United States District Judge Aileen Cannon. While the Administration previously argued that the appointment itself is a threat to national security and unsupportable, it notably dropped its opposition to the appointment on appeal and only appealed one aspect of the order. In its motion for a stay pending appeal, it is only asking the 11th Circuit to allow it to continue using classified documents seized from former President Donald Trump’s Mar-a-Lago property in a criminal investigation. The filing may reflect that time is running out for the Administration since a special master is now in place and is likely to prioritize (and release) these very documents. The motion pending appeal does not prevent the DOJ from later challenging the whole appointment but it will come after the special master has begun his work.
While legal experts pushed the department to challenge the entire order, the Department is seeking a smaller target. In litigation the rule is the same as in hunting: “aim small, miss small.” The DOJ could have just asked for a stay based on the arguments that a special master is facially improper. Instead, it focused on access to these documents in the first filing.
Despite a chorus of legal experts claiming that the entire order is legally unfounded and unsupportable, the DOJ is not making those arguments in court. Indeed, it is not making the sweeping demands that it presented before Judge Cannon. It is only seeking access to roughly a hundred out of the thousands of documents seized in the Mar-a-Lago raid.
The filing states
“Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief, the government seeks to stay only the portions of the order causing the most serious and immediate harm to the government and the public by (1) restricting the government’s review and use of records bearing classification markings and (2) requiring the government to disclose those records for a special-master review process.”
However, retired judge Raymond Dearie is now in place and was reportedly asked to prioritize those documents. It is likely that he would finish his review of the small number of documents relatively quickly. That would leave the Justice Department potentially with access as Dearie worked through the rest of the thousands of documents seized.
The filing seems intended to not just secure a victory before that release but also to abandon its prior sweeping legal claims. It is a smart move. The first such move in this litigation by the Justice Department. 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.
That is a change from the prior litigation. Media pundits mouthed the same exaggerated claims and challenged those of us who argued that it was clearly possible to release a redacted affidavit; liberals suddenly shuddered at the thought of doubting the Justice Department. Then the government produced a redacted version that caused no such harms while confirming important facts in the case. The DOJ then made the same claims in opposition to a special master; claiming that the appointment would threaten national security.
The same breathless coverage followed the order that we have seen in prior Trump-related matters. AEI’s Neil Ornstein suggested that Judge Cannon is now engaged in obstruction by simply ordering a third-party review. The over-wrought response to this order is par for the course over the last six years.
Harvard Professor Laurence Tribe (who recently said that Trump could clearly be charged with the attempted murder of former Vice President Michael Pence) declared that an order to appoint a special master to review the documents is analogous to the Dred Scott decision as an abuse of judicial power.
Others have impugned Judge Cannon’s integrity and dismissed her as a “Trump judge.” Ironically, many of these same experts denounced Trump for such attacks on “Obama judges” when they ruled against him.
Most are dismissing the order as utterly without legal merit. Stephen I. Vladeck, a law professor at University of Texas and CNN contributor, expressed outrage at “an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation.” (Vladeck was one of the experts who previously supported an array of criminal allegations against Trump and pushed a false claim related to the clearing of Lafayette Park). While it is admittedly less common to use a special master in a criminal case, it is not “unprecedented” for a court to conduct in camera reviews of seized material. In this case, the court wants to use a special master to perform that function. Moreover, special masters are commonly appointed in the federal courts in an array of cases where judges need assistance in creating a record for a ruling on motions.
Now, after all of those over-wrought claims, the DOJ is only asking for access to the 100 documents — which is precisely where Dearie is expected to begin.
The DOJ would clearly like to eke out a victory before the Special Master rules. He is likely to give access to the documents as legitimately in the possession of the government. That would not only allow the use of the documents in the criminal investigation but it would blunt any negative ruling over other material that may have been improperly seized or retained. The DOJ itself acknowledged not just errors in its filtering process but also the seizure of potentially attorney-client protected material.
The question now will be whether the Eleventh Circuit wants to expedite the matter to order the access or give Dearie a chance to release the documents after a review. If Dearie were to act quickly, it could moot the appeal.
The only delay might be a challenge over the executive privilege claims that President Trump has raised with the Court. Judge Cannon has noted that the Court has never conclusively held that a former president cannot raise such privilege arguments. However, access could be restored before that question is resolved by the trial court though the Trump team could still object. Conversely, it is not clear if the 11th Circuit will view that question as a threshold matter to be resolved before any access is given. If so, there would be a need for a full briefing and argument on the constitutional and statutory issues.
Here is the filing: DOJ Motion Pending Appeal