Judge Grants Trump’s Special Master Motion

[¥akaSteelhead]

From the DOJs Notice of Appeal - classified records are clearly marked, and are government property - not Trump's personal property

First, the government is likely to succeed in its appeal of the Order as it applies to classified records. Indeed, the government is likely to succeed even under the Court’s own reasoning, which focused principally on Plaintiff’s “personal documents.” D.E. 64 at 9; see id. at 12-13, 14-16, 20-21. Plaintiff does not and could not assert that he owns or has any possessory interest in classified records; that he has any right to have those government records returned to him; or that he can advance any plausible claims of attorney-client privilege as to such records that would bar the government from reviewing or using them. And although this Court suggested that Plaintiff might be able to assert executive privilege as to some of the seized records, Supreme Court precedent makes clear that any possible assertion of privilege that Plaintiff might attempt to make over the classified records would be overcome by the government’s “demonstrated, specific need” for that evidence. United States v. Nixon,418 U.S.683, 713 (1974)(“United States v. Nixon”). Among other things, the classified records are the very subject of the government’s ongoing investigation

... The classified records are government property over which the Executive Branch has control and in which Plaintiff has no cognizable property interest. See Exec. Order 13526, § 1.1(2)(Dec. 29, 2009) (classified information must be “owned by, produced by or for, or [be] under the control of the United States Government”);Dep’t of Nayv. Egan, 484 U.S.518, 527 (1988). Accordingly, even if(as the Court stated) Plaintiff has made “a colorable showing of a right to possess at least some of the seized property” sufficient to establish his standing to request that a special master review records that might potentially belong to him, D.E. 64 at 13, he categorically cannot make that showing with respect to documents marked as classified.

... The second and third factors likewise counsel against exercising equitable jurisdiction with respect to the classified records. Those factors apply only to “the material whose return [the plaintiff] seeks” and to injury resulting from “denial of the return of his property.” Richey, 515 F.2dat 1243. Plaintiff, however, has no right to the “return” of classified records, which are not “his” property. Id. Classified records also are not “personal” to Plaintiff and would not reveal any sensitive personal information.D.E.64 at 9, 21. Accordingly, Plaintiff has no cognizable “individual” interest in any classified records(or in having a special master review those records), and he cannot be “irreparably injured ”if such records are not returned to him. Richey,515 F.2dat 1243. The Court’s determination that the second and third Richey factors favored the exercise of equitable jurisdiction relied on its finding that Plaintiff had an interest in “at least a portion” of the seized records, including “medical documents, correspondence related to taxes,” “accounting information,” and “material potentially subject to attorney client privilege,” and that identification of such materials “cannot reasonably be determined at this time.” D.E. 64 at 9.2 But that rationale is categorically inapplicable to the classified records at issue in this motion, which are easily identifiable by their markings, are already segregated from the other seized records, and do not include personal records or potentially privileged communications with his personal attorneys.

Similarly, the Court’s reasoning with respect to the fourth factor—that“[with]ithout Rule 41(g), Plaintiff would have no legal means of seeking the return of his property for the time being,” D.E. 64 at 10—is categorically inapplicable to classified records because Plaintiff has no legal right to have those records returned to him. Such records clearly belong in government custody and, as a matter of national security, must be fully accessible to the Executive Branch. Accordingly, the government is likely to succeed in demonstrating that Plaintiff failed to establish the propriety of this Court’s exercise of equitable jurisdiction under Richey with respect to the seized classified records.

[ajax18]

So why do you all lend any credence to what William Barr has to say now, if he's guilty of speaking MAGA hyperbolic nonsense?

Barr knows that stealing those secret documents is illegal. Barr does not wish to harm America further in Trump's defense. At least you can take solace in knowing that he did not urge the crowd to chant, "Lock him up!"

So you like and respsect Bill Barr now Moksha. I need to go back to some of your quotes on him earlier.

[Gunnar]

So you like and respsect Bill Barr now Moksha. I need to go back to some of your quotes on him earlier.

He is definitely wiser and less corrupt than Trump, but that is a very low bar!

Do you agree that Trump's taking lots of official documents, including highly classified documents with him to the relatively insecure Mar a Lago and refusing for so long to give them back was both foolish and illegal, and potentially very damaging to U.S. security? If not, why not? If any of this classified material were given or sold by Trump or otherwise wound up in the hands of U.S. enemies or other entities intent on doing us harm, would you agree that Trump deserves to go to Prison for that?

[Res Ipsa]

Barr knows that stealing those secret documents is illegal. Barr does not wish to harm America further in Trump's defense. At least you can take solace in knowing that he did not urge the crowd to chant, "Lock him up!"

So you like and respsect Bill Barr now Moksha. I need to go back to some of your quotes on him earlier.

Please don’t in this thread. I’d like to keep it on topic.

[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?

[Res Ipsa]

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.

[Moksha]

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.

What about the statement that this is not the type of case where a Special Master should have been requested, let alone granted?

[Res Ipsa]

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.

What about the statement that this is not the type of case where a Special Master should have been requested, let alone granted?

What kind of a case is that?

[Moksha]

What kind of a case is that?

Cases not involving stolen top secret documents. Actually, I can't remember the exact statements from those law professor analysts, but I do remember that point being mentioned several times.

Did you know that Judge Canon was given an "unqualified to be a judge rating" by the American Bar Association prior to her confirmation?

[Res Ipsa]

What kind of a case is that?

Cases not involving stolen top secret documents. Actually, I can't remember the exact statements from those law professor analysts, but I do remember that point being mentioned several times.

Did you know that Judge Canon was given an "unqualified to be a judge rating" by the American Bar Association prior to her confirmation?

Did you know that there’s a 100% false rumor circulating that Judge Cannon was given an unqualified rating by the ABA? Actually, she received a split Qualified/Well Qualified rating. Here is the data. https://www.americanbar.org/content/dam ... ivity=true She is number 159.