RSN: FOCUS: Norman L. Eisen and Fred Wertheimer | The DOJ Snookered Trump Judge Aileen Cannon With Its Savvy Mar-a-Lago Appeal
10 September 22
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First, as we noted in our Slate op-ed initially reacting to the judge’s decision, the single most disturbing part of Judge Cannon’s order was always its application to classified documents. Don’t get us wrong, none of the thousands of government documents at issue belong to a former president under the terms of the Presidential Records Act or the well-established rules of executive privilege, as the government points out in its brief.
But classified materials are in a category by themself. Federal law expressly says as much. As DOJ points out in its filing, classified information must be “owned by, produced by or for, or [be] under the control of the United States [g]overnment.” One of the authors, Eisen, helped write Executive Order 13526, the order issued by President Barack Obama which articulates that principle and which the government cites in its motion to Judge Cannon for a partial stay. The special status of classified documents is also rooted in the case law, including the seminal precedent in this area, Nixon v. GSA. It held that only the current president can assert executive privilege relating to “state secrets and sensitive information concerning military or diplomatic matters.” Many additional laws and rules apply to the handling of such materials, including that they be stored in or utilized in special, secure government locations. A former president’s heavily trafficked resort is certainly not one of them.
Nor is there any reason to believe that these materials were declassified, as Trump and his allies have claimed in public media without foundation. Notably, his lawyers made no such claims in their court papers, which they signed pursuant to legal penalties if they make false statements of facts or law. In its motion on Thursday, the DOJ notes this fact and practically dares Trump’s attorneys to attempt to assert before the court the former president’s public claims that those documents were declassified.
The notion that the court would interfere with the government’s reclamation of its classified documents from Trump ultimately never made any sense. The handling of classified information is a matter that has always been recognized to be within the core competency of the executive branch and where judicial deference to the executive is at its greatest. Judge Cannon seemed to acknowledge as much when she allowed the government to retain and continue to use those documents for its ongoing national security damage assessment by the Office of the Director of National Intelligence, even as she attempted to bar the Department of Justice from continuing its closely intertwined criminal inquiry. The government is on sound footing in its appeal.
Note that if not appealed, the court’s order would’ve resulted in the possibility of Trump and his lawyers getting back classified documents. That is because the court treated Trump’s request as a motion for the return of property under Federal Rule of Criminal Procedure 41(g)—a completely unacceptable result here. These are documents whose exposure is so potentially dangerous that the government has had to undertake that aformentioned full-scale intelligence community damage assessment. It is impossible to imagine turning classified documents back to Trump or his lawyers and risk the recurrence of the extraordinary danger that Trump’s initial mishandling of classified documents created. This is the principal reason why a stay of the judge’s order and appeal is needed and should succeed.
Second, as the government emphasizes in its stay papers, the special master order interferes with the intelligence community’s review of the damage. That’s because you can’t bifurcate the government’s work in a case like this. DOJ and the FBI have to be involved in the national security assessment. They are a part of the intelligence community and always help with the review. If the situation is important enough, and this one certain is, that intelligence community damage assessment must include those who also must oversee criminal cases such as the Attorney General and Deputy Attorney General.
DOJ persuasively explains this in its motion and an accompanying affidavit from a high-ranking investigator—Assistant Director of the FBI Counter Intelligence Division, Alan E. Kohler. He explains how these investigations work in the real world. DOJ and the FBI are part of the intelligence community, which the judge did not seem to comprehend. You have to have communication between the individuals looking at the damage the improper handling of the documents caused, and those looking at potential criminal penalties. Sometimes they are one in the same, such as AG Garland and DAG Lisa Monaco. Are we to ask them to build a wall in the middle of their heads? On a more basic level, as Kohler noted in his affidavit, in order for the intelligence community to determine what happened to items like the documents missing from dozens of empty folders with classified markings on them found at Mar-a-Lago, “the use of grand jury subpoenas, search warrants, and other criminal investigative tools” could be necessary and “could lead to evidence that would also be highly relevant to advancing the FBI’s criminal investigation,” the sort of steps barred by Cannon’s order. As Kohler also noted, “the FBI is the only IC [(Intelligence Community)] element with a full suite of authorities and tools to investigate and recover any improperly retained and stored classified information in the United States.” If documents that threaten national security are still out there, the FBI and its ongoing criminal investigation will be essential to recovering them. In the end, Trump’s mishandling of these classified documents was dangerous to American national security, and potentially continues to be. Failing to appeal the courts misguided order would compound the peril.
Third, this appeal and request for an injunction is not only legally and practically correct, it is also shrewd. That is because it puts the onus on the judge to justify her decision not as to an amorphous and unseen group of 11,000 documents—some of which DOJ has acknowledged Trump may have some proprietary interest in—but as to over 100 highly dangerous classified ones. Even if she fails to do the right thing, the U.S. Court of Appeals for the 11th Circuit hopefully will. (The government has filed a notice of interlocutory appeal with the 11th Circuit and while we do not know exactly what it will do there, presumably it will seek the same limited stay.)
Another advantage of this strategy is that it allows the inevitable delay to be minimized. On this approach, the appointment of the special master and review of the vast majority of the documents can begin. At the same time, the most legally odious and dangerous aspects of the court’s order can be immediately challenged and hopefully quickly overturned
The wisdom of this approach is that it also gives the court a way out. It can enter the stay, avoiding the embarrassment of the appellate court possibly doing so. It also simplifies the appointment and selection of a special master. If the classified documents are not included, and the special master does not need to have any security clearances to be selected, the person can begin work now.
The judge seems to be considering this lifeline. After the government filed its motion, the court ordered the parties to take account of the governments motion for relief on the classified documents in filing their recommendations for special masters and the associated order of operations. In requiring that before she has even ruled on the motion, she may be signaling that she knows she has gone too far.
We believed (albeit with recognition that DOJ had to make the ultimate call) that the government should appeal. They’re doing it in a skillful way and should ultimately succeed.
The beauty of DOJ’s narrowly targeted request for a stay to allow them to continue using the classified documents in their criminal investigation along with an appeal to the 11th Circuit is that it takes advantage of the calendar. Even if it takes some time to get that appellate resolution, the Justice Department and the special master review will be advanced in parallel. The sooner that happens, the sooner the government can effectively carry out its damage assessment of the classified documents and decide whether criminal charges should be brought.
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