We await the next chapter in the ongoing legal saga between the Biden Justice Department and Donald Trump. You know the story by now—federal agents ransacked Mar-a-Lago on August 8 and seized a trove of sensitive documents from the former president’s home. The documents were declassified, and Trump kept copies. There is no actual violation of law, and some of the documents seized were merely empty folders. The nuclear secrets allegation turned out to be another healthy helping of fake news, and the suggestion that classified materials were just strewn about the property is dreadfully erroneous. All former presidents have Secret Service protection and staffers with security clearances.
Mike Davis, a former law clerk for Justice Neil Gorsuch, has been on the warpath torching every liberal talking point to justify this unlawful raid. In Davis' opinion, the fact that Congress allocates funds for an office for former presidents is a tacit acknowledgment that former presidents will have some classified materials in their possession. Not for nefarious purposes, however, but because the government over-classifies everything, even dinner menus, and cocktail napkins.
BREAKING: Judge Cannon has ruled—wrongly— that a special master should be appointed to review the documents obtained from Mar-a-Lago for executive and other privileges. Because this includes an injunction vs investigative use, DOJ can and should appeal.— Norm Eisen (@NormEisen) September 5, 2022
More to follow. pic.twitter.com/ZnK8SRtQld
Rebecca wrote about the judge granting the Trump legal team’s motion for a special master to review the documents while also halting any further analysis of the records by the DOJ and any other investigative efforts on this matter. It sent liberals into a meltdown over the Labor Day weekend, with most attacks directed against the judge, Aileen M. Cannon, who was confirmed with bipartisan support.
We await whether the Justice Department will appeal the ruling. Former Attorney General Barr believes the decision to appoint a special master was “wrong” and that the DOJ should do so. Barr is also confident that the Justice Department’s appeal would be successful, though he warned that the litigation could take several months.
Talk about anti-climactic. The Mar-a-Lago raid, a historic and chilling event in American history concerning political persecution, will be suffocated; it’ll atrophy. It circles back to what Matt Taibbi commented about this story from the start: it seems as if this raid was more of an accidental missile launch. And after this massive bombshell ransacking—the media started to creep away from it regarding any corroborative follow-ups that weren’t based on email tag between Trump and National Archives attorneys.
Law and Crime spoke to legal experts who warned that a DOJ appeal was also “risky”:
“I’m sure [the DOJ is] puzzling over it now,” noted CNN legal analyst Jennifer Rodgers, a former federal prosecutor for the Southern District of New York.
“They obviously made clear to the judge that they wanted her to craft an order in such a way that it would allow them to appeal,” Rodgers continued. “So what they’re gonna have to think about is: What is the makeup of the 11th Circuit? What’s the likelihood that they’re gonna get a ruling that they like or not? How much damage does this actually do to their case?”
Trump appointed six judges to the 11th Circuit Court of Appeals, a conservative jurisdiction that’s the first destination for any appeal. Rodgers predicted the actual fallout of the ruling on the government’s investigation would be limited.
So did attorney Bradley Moss, a prominent national security lawyer.
“If you’re the DOJ in this circumstance, you have to take into consideration the possibility that this ruling will be essentially a one-off — that no other criminal suspects will ever warrant the particular consideration and factual analysis that applies here to a former president,” Moss told Law&Crime. “And so you have to take into consideration: Is it worth it to spend the time and effort and the delay to potentially get this overturned, recognizing that nothing’s guaranteed, or do you plow ahead with the special master, confident that you’ve got the law on your side at that stage — and secure enough in the idea that whatever damage comes from this ruling going forward, it’ll be minimal, if anything.”
For ex-federal prosecutor Renato Mariotti, any tactical considerations weighing against an appeal would have to be balanced against leaving the precedent of the ruling on the books.
“This decision is far out of the mainstream decisions in criminal law cases,” Mariotti told Law&Crime, describing the order as a boon to criminal defense attorneys like him who represent clients under investigation by the Justice Department.
“I intend to use this decision in cases in the future because it essentially suggests that, even before a client has been indicted, that they have broad rights to seek review by courts and oversight by courts and by neutral third parties of government investigative decisions, based upon the potential harm that could be caused by an indictment that hasn’t even been issued yet,” Mariotti noted.
The Trump raid is now a Marvel-like franchise with several installments, maybe more. And all these legal shenanigans over documents that Trump very well could have been within his legal right to possess.