Judge Grants Trump’s Special Master Motion

[Res Ipsa]

I’ve seen some confusion online about what the government filed yesterday. The government filed two things: A Notice of Appeal and a Motion for Partial Stay Pending Appeal.

A Notice of Appeal is a Simple, often one-page, Notice to the to the trial court than the party has filed an appeal. It doesn’t request the judge to do anything.

The motion was filed with Judge Canon. It asks her to stay enforcement of her order, but only for the documents marked classified, until the Court of Appeals rules on the appeal. If Judge Cannon grants the motion, the FBI will be able to have access to and use the documents marked classified. The stay preventing the FBI from having access will apply only to all the other things seized. She gave the weekend for Trump to respond - his response is due Monday.

This was a move that I didn’t see anyone predicting. It’s being hailed as magnificent law-fu by lots of folks, but I’m skeptical. Here’s why: The motion asks for something the government should have argued for in response to Trump’s original motion. The government’s brief argued that the motion should be denied completely. The brief has a section that addressed how the process should work if Judge Cannon appointed a special master, but it never asked her to make an exception for the classified documents.

The DOJ makes two basic arguments in support of its motion. First, executive privilege cannot possibly apply to classified documents because those documents aren’t what the privilege protects: communications with advisors, notes of meetings or other documents that would reflect Trump’s thought processes involved with his position as a president. And that appears to be correct. Unless Trump wrote notes on any of the documents. If he did, his notes could could fall within the privilege even though the the document does not. And, given the evidence of Trumps careless treatment of documents, it is very unlikely that a judge would simply assume that he didn’t. In fact, doing that would be an example of really bad judging. But, again, the government should have made this argument to the judge in its response to Trump’s motion.

The second is that the FBI is a necessary participant in the ONDI review. Judge Cannon held that the ONDI review was not subject to the stay in her order. So, while the FBI cannot use the seized items in its criminal investigation of Trump until the special master’s review process is completed, the intelligence review as to whether the documents marked as classified actually should be classified and investigation of any harm done to the United States as a result of the documents being at Mar-al-Lago and with NARA, which is what the law requires, can continue.

In this motion, the Government argues that the FBI is a participant in the FBI ONDI review, so it needs access to the documents marked as classified. Even if it is true, one of the specific questions Judge Cannon asked the government to address in its response to Trumps’ motion was the feasibility of staying the criminal investigation while letting the ONDI review proceed. The issue was also addressed in the oral argument. The government said that staying the FBI’s criminal investigation would not interfere with ONDI review.

Now, for the first time, the government is telling Judge Cannon that the FBI is a required participant in the ONDI review. Given that Judge Cannon specifically asked the government about this issue, failing to tell her that a state would interfere with the ONDI review is a major blunder by the government. It basically represented one thing in response to Trump’s motion and now wants to represent something different.

In general, once a judge has ruled on a motion an entered an order, it is extremely difficult to tell the judge they got it wrong based on an issue that wasn’t argued in the briefing or at oral argument. If the judge makes a mistake in a ruling, a party can file a motion for reconsideration, but It can’t introduce new issues or arguments in such a motion.

And it’s even tougher to persuade an appellate court to consider anything that wasn’t argued to the trial court. An appeal is not a new trial — the appellate courts are limited to reviewing the trial judge’s decision based on what was presented to the trial judge. I’ve seen appellate courts consider new arguments on appeal, but only very rarely.

So, it looks to me like this motion isn’t genius litigation tactics by the government at all. Rather, it’s an attempt to get some issues that the government neglected to raise in its brief and argument against Trump’s motion into the court recorder so it can make those arguments as part of its appeal. Based on my experience, a federal judge with 10 years on the bench would asked this question right out of the gate: Why didn’t you make these arguments before now and why should I do what amounts to amending my order based on arguments you should have raised at in your previous brief and at the hearing?

But she’s not, and she’s indicated that she doesn’t want to interfere with the ONDI review, and this is an equitable proceeding, which basically means doing what’s fair. So It would be reasonable to get there by granting the motion, conditioned on no agents involved with the criminal investigation can participate in the ONDI review.

One other thing: if the government were appealing from a final order that resolved the case, there would be an automatic right to an appeal. But Judge Cannon‘s order is not a final order, so this what we call an interlocutory appeal. That means the Court of Appeals gets to decide whether to hear the appeal or to tell the government to wait until the special master process is complete before bringing an appeal.
The injunction, I think, increases the chances that the Court of Appeals will accept the appeal and review the Order.

There may also be a procedural issue. Interlocutory appeals, in general, are hard to get unless the order falls within certain types of orders. And, the government may be required to ask judge Cannon to certify that her order meets the general criteria for an Interlocutory appeal. I haven’t seen that request yet. My state’s rules are a little different from the federal rules, and I haven’t filed for an interlocutory appeal in decades.

If Judge Cannon denies the motion from partial stay, the government can seek the same relief from the Court of Appeals.

[Vēritās]

Laurence Tribe, professor emeritus of constitutional law at Harvard University, tweeted that Cannon's decision was "utterly lawless" and that she has "disgraced her position as an Article III judge." https://Twitter.com/tribelaw/status/1566884573975379969

Legal scholars called Cannon's ruling unprecedented, in the sense that it goes against decades of court precedent — especially expanding the special master role to include executive privilege potentially claimed by a former president over the executive branch, for government-owned documents the Justice Department argues Trump had no right to take or keep.

This was "an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation," University of Texas law professor Steve Vladeck tells The New York Times. "Enjoining the ongoing criminal investigation is simply untenable," agreed Paul Rosenzweig, a George W. Bush administration official.

"To any lawyer with serious federal criminal court experience who is being honest, this ruling is laughably bad, and the written justification is even flimsier," Duke University law professor Samuel Buell tells the Times. "Donald Trump is getting something no one else ever gets in federal court, he's getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he is being persecuted, when he is being privileged."
Former Attorney General William Barr was more blunt. "I think it's a crock of sh-t," he told the Times on Friday. "I don't think a special master is called for." He made similar comments to Fox News, arguing that a special master is a "waste of time" and the FBI appears totally justified in seizing the documents.

https://theweek.com/donald-trump/101655 ... -lago-case

Attorney and former acting Solicitor General Neal Katyal said Monday that "any of my first year law students would have written a better opinion.

He particularly took umbrage with Cannon's reference to the potential "reputational" harm of Trump in relation to the investigation, arguing that every criminal defendant suffers reputational harm and yet not every case requires a special master.

"Judge [Cannon] enjoins the entire investigation because some of the material might be subject to Executive Privilege," Katyal said as part of a series of tweets. "But Executive Priv isn't some post-presidential privilege that allows Presidents to keep documents after they leave office. At most, it simply means these are Executive documents that must be returned to the archives. It doesn't in any way shape or form mean they can't be used in a criminal prosecution about stolen docs."

Cannon's order finding that "some tiny percentage of materials might be privileged," Katyal said, pauses the investigation entirely.
"That's a bazooka when one needs at most a scalpel," he added.

https://www.newsweek.com/special-master ... ns-1740020

[Res Ipsa]

Laurence Tribe, professor emeritus of constitutional law at Harvard University, tweeted that Cannon's decision was "utterly lawless" and that she has "disgraced her position as an Article III judge." https://Twitter.com/tribelaw/status/1566884573975379969

Legal scholars called Cannon's ruling unprecedented, in the sense that it goes against decades of court precedent — especially expanding the special master role to include executive privilege potentially claimed by a former president over the executive branch, for government-owned documents the Justice Department argues Trump had no right to take or keep.

This was "an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation," University of Texas law professor Steve Vladeck tells The New York Times. "Enjoining the ongoing criminal investigation is simply untenable," agreed Paul Rosenzweig, a George W. Bush administration official.

"To any lawyer with serious federal criminal court experience who is being honest, this ruling is laughably bad, and the written justification is even flimsier," Duke University law professor Samuel Buell tells the Times. "Donald Trump is getting something no one else ever gets in federal court, he's getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he is being persecuted, when he is being privileged."
Former Attorney General William Barr was more blunt. "I think it's a crock of sh-t," he told the Times on Friday. "I don't think a special master is called for." He made similar comments to Fox News, arguing that a special master is a "waste of time" and the FBI appears totally justified in seizing the documents.

https://theweek.com/donald-trump/101655 ... -lago-case

Attorney and former acting Solicitor General Neal Katyal said Monday that "any of my first year law students would have written a better opinion.

He particularly took umbrage with Cannon's reference to the potential "reputational" harm of Trump in relation to the investigation, arguing that every criminal defendant suffers reputational harm and yet not every case requires a special master.

"Judge [Cannon] enjoins the entire investigation because some of the material might be subject to Executive Privilege," Katyal said as part of a series of tweets. "But Executive Priv isn't some post-presidential privilege that allows Presidents to keep documents after they leave office. At most, it simply means these are Executive documents that must be returned to the archives. It doesn't in any way shape or form mean they can't be used in a criminal prosecution about stolen docs."

Cannon's order finding that "some tiny percentage of materials might be privileged," Katyal said, pauses the investigation entirely.
"That's a bazooka when one needs at most a scalpel," he added.

https://www.newsweek.com/special-master ... ns-1740020

I took con law from professor Tribe in law school. He’s brilliant man and a great teacher. And if there were no politics in selection of Supreme Court Justices, he’d have been a Supreme Court Justice 20 years ago.

But this kind of histrionic response is nothing like the man I took a course from years ago. Lawyers who are down in the trenches trying to persuade some judge on some issue every day have all seen decisions from time to time that are bizarre and inexplicable. This one isn’t close to the worst I’ve seen from trial judges, including federal trial judges.

It’s been sad for me to watch professors like Tribe and Dershowitz drift away from their insightful and sober legal analysis and toward over the top rhetoric fueled more by politics than law. Thankfully, Tribe hasn’t gone the full Dersh and I hope he never does. I follow him on Twitter and this isn’t the first time he’s written something that really makes me wince.

[Moksha]

Unless Trump wrote notes on any of the documents. If he did, his notes could could fall within the privilege even though the the document does not.

Are you talking about any bid prices Trump may have received and jotted down on the documents?

[Res Ipsa]

Unless Trump wrote notes on any of the documents. If he did, his notes could could fall within the privilege even though the the document does not.

Are you talking about any bid prices Trump may have received and jotted down on the documents?

Nope. Executive privilege would apply only to notes related to his role as president while he was president. So, if Trump wrote “Joe Biden is a senile poopyhead” on a classified document about North Korea’s nuclear weapons capabilities, the note wouldn’t be within the scope of the privilege because it has nothing to do with his role as president. On the other hand, if he wrote “My besty Kim sounds like he’s getting grumpy. I’ll send him another love note to settle him down ”, that would likely be within the privilege, s as part of his job as President is deciding how to respond to threads to the safety and security of Americans.

Also, no privilege if the note was written after Biden was sworn in, as he was no longer President.

[Gunnar]

Is there any way of sanctioning or punishing Judge Cannon or otherwise officially and legally holding her to account for her flawed and incompetent judgement short of actual, full-fledged impeachment?

Gunnar, there is a ton of posturing and grandstanding going on here. I’ve been busy this week, but I’ve had time to read much of the pertinent case law. Lots of the claims being made about her alleged incompetence based on her order are way overblown, even by lawyers are usually level headed in their legal analysis.

This is nothing like the open and shut case that many are claiming it is. Few people have take the time to understand exactly what relief Trump is seeking. Much of that is due to the poor quality of the briefing by Trumps lawyers. But making sure you understand a claim before you respond to it is part of good lawyering.

I’ve developed a reactive airway asthma adjacent condition, and smoke season started yesterday and hit fairly hard today, so I’ll be huddling near my HEPA filters all weekend, which should give time to address some issues in more depth.

I’ve seen many judicial orders and opinions in my career that are far worse than Canon’s order. I disagree with her order. I don’t think she is correct on the subject matter jurisdiction issue. But wrong — even really, really wrong — on a single case is not basis for removing a judge. If it were, there would be no judges. Period. And one cannot assess a judges competency based on part of one case.

The sanction for making bad rulings is reversal by the court of appeals. Trial judges don’t like to be reversed. Like the rest of us, they don’t like to be told we’re wrong, especially in a public opinion published by the Court of Appeals. And when that happens, the trial judge has to follow the ruling on appeal, even the judge thinks the appellate ruling is moronic. It’s like your boss telling you that you did a project so poorly, you’ll have to do it again and ordering you to do it a way that you know is absolutely done. In public. Using a megaphone. On a stage. Right before the Super Bowl.

That alone is strong motivation to make good decisions.

Impeachment is generally reserved for malfeasance or corruption. Maybe chronic incompetence, although I’ve never seen it.

Thank you so much for taking the time to address my question. I knew you would come through with something that would enhance my understanding of the situation. It's nice to know that Judge Cannon is not necessarily as villainous and slavishly devoted to Trump as I feared and that there are effective sanctions even for life-long tenured Justices other than the drastic and tortuous remedy of initiating and carrying out formal impeachment proceedings. I hope her ruling is effectively overturned and that she will be able to admit that she may have overstepped her bounds and sound reasoning.

I also found this discussion on YouTube helpful and informative: Trump's Very Special Master

[Moksha]

It’s been sad for me to watch professors like Tribe and Dershowitz drift away from their insightful and sober legal analysis and toward over the top rhetoric fueled more by politics than law. Thankfully, Tribe hasn’t gone the full Dersh and I hope he never does. I follow him on Twitter and this isn’t the first time he’s written something that really makes me wince.

Okay, those are aspersions, but what about the points those law school professors were making?

[Res Ipsa]

It’s been sad for me to watch professors like Tribe and Dershowitz drift away from their insightful and sober legal analysis and toward over the top rhetoric fueled more by politics than law. Thankfully, Tribe hasn’t gone the full Dersh and I hope he never does. I follow him on Twitter and this isn’t the first time he’s written something that really makes me wince.

Okay, those are aspersions, but what about the points those law school professors were making?

No, not aspersions. These are law school professors who taught while I was in law school and to whom I have paid attention over the years. Dershowitz, who taught criminal law, says Cannon got it right. Tribe says she got it horribly wrong. Age comes for us all. I note that with sorrow, not with disdain.

Which point made by which law professor would you like me to comment on?

[Xenophon]

I saw in the request that Trump & Team want to split the cost of the special master but the DOJ is requesting he foot the bill. I'm not seeing much explanation of what is usual or expected in this regard. I think as a layman, generally I'm of the opinion that if you have the means and you're the one making the request then you ought to foot the bill but I'm not locked into that.

Res (or anyone else with special insight), is this a pretty normal request or more in line with Trump's usual plays to not pay?

[Moksha]

Which point made by which law professor would you like me to comment on?

Your choice.