Judge Grants Trump’s Special Master Motion

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Re: Judge Grants Trump’s Special Master Motion

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Is Judge Canon going to reconvene her courtroom attempt to aid Trump?
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Re: Judge Grants Trump’s Special Master Motion

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Moksha wrote:
Sat Sep 24, 2022 9:11 am
Is Judge Canon going to reconvene her courtroom attempt to aid Trump?
The 11th Cir. stay applies only to the documents marked as classified. So, the Special Master process that Judge Cannon ordered continues for all the other things seized by the FBI. Trump and his lawyers will get to review the documents on a rolling basis. In a short period of time, they are required to designate any items or documents that Trump claims are personal and, therefore, potentially able to be returned under Rule 41(g). They also must designate any documents that Trump claims are protected by the attorney-client or executive privilege. The DOJ then has a short period of time to designate which claims of Trump they disagree with.

The items over which there is disagreement will be reviewed by the special master, who will write a report to Judge Cannon stating his opinion on the disputed items. Judge Cannon is the final decision maker and can accept or reject the report or any part of the report as she sees fit. The parties can then appeal her decision.

There are a couple of decisions that have to be made in addition to those outlined above. For example, if personal items are potentially evidence, the government has the right to retain them until completion of its investigation. Also, at some point Trump has to file either a motion for return of property or to suppress and has to persuade Judge Carrroll that he is entitled to relief. So far, what she has ordered is a process to give Trump access to the seized items so that he has the level of detail for each item that is needed to assert privileges or claim personal property on a document by document basis.

Also, keep in mind that all the 11th Cir. has done is issue a start over the documents marked as classified. That includes a necessary finding that the government is likely to win its appeal. And, usually, that’s how it works out. But the Court of Appeal doesn’t have a full record to review and it does not have the benefit of the extensive briefing that parties submit on appeal. So, sometimes courts that issued a stay end up changing their minds and ruling the other way on the merits of an appeal. I don’t think it’s likely at all in this case, as the case the panel relied on looks pretty solid to me.

There is also what I would describe as the elephant in the room: If you employ the panel’s reasoning in the opinion granting the state, it’s hard to explain why Judge Cannon has any subject matter jurisdiction at all. Unlike other potential affirmative defenses, lack of SMJ can never be waived and can be raised by any party at any time, and that includes the judge. In fact, arguably the 11th Circuit could have simply dismissed the entire case on its own motion for lack of SMJ.

So, Judge Cannon could simply decide she has no SMJ and dismiss the case. in my opinion, she should request briefing from both sides on the issue of SMJ in light of the 11th Cir’s citation of the Chapman case, which had never been cited to her until the 11th Cir. raised it.

As a war story, my first 9th Cir. appeal was a complete Dog of a case that was assigned to me because stuff rolls downhill. The lawyer on the other side has become an excellent appeal specialist (he would be on my short list). When the panel entered the courtroom, followed by their clerks, the judges had odd smiles on their faces and the clerks were openly smirking. The head of the panel announced that it didn’t appear that the Court had subject matter jurisdiction over the appeal, and gave us 15 minutes to review and address the issue. Now, they could have asked us to brief the issue before the hearing. But it’s possible that a clerk spotted the problem only as the panel was preparing for the argument. So, what the panel did was entirely correct: If there is no SMJ, doing anything other than dismissing the case is a waste of time and judicial resources.

So, it will be interesting to see what, if anything, Judge Cannon will do about the jurisdictional issue. She can take the position that the 11th Cir didn’t rule on the merits, so she’s not required to dismiss. Or, she can recognize that Chapman, which neither she or either party ever discussed, appears to be binding authority holding that she has no SMJ.

This all goes back to my puzzlement over why the government gave such short shrift to jurisdiction. A rule to live by that was pounded into me was “if there is a bona-fide SMJ Issue, lead with that. If you’re right, nothing else matters.” Instead, the government led with a sort of standing issue, and buried its single paragraph about jurisdiction late in the brief.

Which reminds me of another rule to live by: stuff happens.
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Re: Judge Grants Trump’s Special Master Motion

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Res Ipsa wrote:
Sat Sep 24, 2022 6:55 pm
This all goes back to my puzzlement over why the government gave such short shrift to jurisdiction.
Would that have mattered to Judge Canon who seemed eager to help Trump?
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Re: Judge Grants Trump’s Special Master Motion

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Moksha wrote:
Sat Sep 24, 2022 7:53 pm
Res Ipsa wrote:
Sat Sep 24, 2022 6:55 pm
This all goes back to my puzzlement over why the government gave such short shrift to jurisdiction.
Would that have mattered to Judge Canon who seemed eager to help Trump?
I suppose that depends on how good you are at reading minds. I don’t think anyone is particularly good at it. Had the government cited Chapman and Cannon refused to follow it, all other things being equal, that would have been sufficient evidence for me to conclude that something was going on besides a sincere attempt to apply the law. When the hyperbole is stripped out of the issue and I look at what Cannon did and the context in which she did it, I don’t see evidence that would allow me to conclude incompetence or corruption.

I disagree with her decision to exercise jurisdiction, but there’s lots of room between wrong decision and incomprehensible decision.
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Re: Judge Grants Trump’s Special Master Motion

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Res Ipsa wrote:
Sat Sep 24, 2022 8:47 pm
I don’t see evidence that would allow me to conclude incompetence or corruption.
What about competent partisanship in a setting that aims for non-partisanship?
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Re: Judge Grants Trump’s Special Master Motion

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I was trying to write a post with just my mind since Trump claims to have used that method to declassify top secret documents. As you can see above, it does not work. Trump was lying as usual.
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Re: Judge Grants Trump’s Special Master Motion

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Well, it truly is looking like Trump's legal team is the dog that caught the car and doesn't know what to do with it. They filed objections to the Special Master's plan with the court, but under seal so they weren't publicly accessible. The DOJ wasn't having any of that, and filed its response publicly. Trumps lawyers filed a snippy response and unsealed their original objections.

Having got the special master they wanted, Trump's team now seems to be having buyer's remorse. They're complaining about everything that Dearie is doing to move things along expeditiously, including requiring Trump to verify that he isn't claiming that anything on the inventory was actually not taken from Mar-al-Lago. They are nitpicking things like the Special Master requiring that Trump designate which privilege he is claiming (executive or attorney-client) for each document, and, with respect to executive privilege, whether Trump is claiming the document is privileged from review by the public or the executive branch. The one complaint that seems reasonable to me is the request for briefing about which court should have jurisdiction over Trump's Rule 41(g) motion should he ever get around to filing one. That sounds to me like something that goes beyond the instructions from Judge Cannon. But the rest is stuff that needs to be done to get through the process efficiently.

The claims by Trump's lawyers that there are 200,000 pages sounds wrong to me. That could be true if every box were filled with new sheets of paper. But it's clear from the inventory that they aren't. This simply sounds like an excuse for more delay.

The three documents, in the order filed, are:
https://storage.courtlistener.com/recap ... 23.1_1.pdf
https://storage.courtlistener.com/recap ... .121.0.pdf
https://storage.courtlistener.com/recap ... .123.0.pdf
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Re: Judge Grants Trump’s Special Master Motion

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When they say “vendors” are they just talking about contracted personnel who can review the stolen items for classified information?

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Re: Judge Grants Trump’s Special Master Motion

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Res Ipsa wrote:
Thu Sep 29, 2022 5:41 pm
The claims by Trump's lawyers that there are 200,000 pages sounds wrong to me. That could be true if every box were filled with new sheets of paper. But it's clear from the inventory that they aren't. This simply sounds like an excuse for more delay.
For a comparative example, that happens to be the exact number of pages of paper on a standard pallet of copy paper (40 cases).

Even if each box was fully and perfectly packed, without any binders, folders, magazines, books, pictures, etc., it'd take some wild effort (and creative physics) to get 200,000 pages into 33 file/evidence boxes.
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Re: Judge Grants Trump’s Special Master Motion

Post by Marcus »

Doctor Steuss wrote:
Thu Sep 29, 2022 6:03 pm
Res Ipsa wrote:
Thu Sep 29, 2022 5:41 pm
The claims by Trump's lawyers that there are 200,000 pages sounds wrong to me. That could be true if every box were filled with new sheets of paper. But it's clear from the inventory that they aren't. This simply sounds like an excuse for more delay.
For a comparative example, that happens to be the exact number of pages of paper on a standard pallet of copy paper (40 cases).

Even if each box was fully and perfectly packed, without any binders, folders, magazines, books, pictures, etc., it'd take some wild effort (and creative physics) to get 200,000 pages into 33 file/evidence boxes.
maybe they are counting as a "page" each bit fished out of Trump's toilets.
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