11th Circuit hands Trump—and Cannon—a big defeat, authorizes DOJ to continue criminal investigation

Not only is the 11th Circuit ruling fairly blunt in stating that Cannon was wrong to deny the stay in the first place, but the opening portion of the ruling also reads like a shorthand version of the Department of Justice’s own history of events to this point, including not one drop of the hyperventilating language and conspiracy theories that are laced into the appeals by Trump’s team.

Throughout the 29-page decision, the panel steps through how the DOJ and FBI provided every possible legal point and all the necessary evidence to support their position, including a letter from national security officials stating the potential damage that could result from delays in dealing with this material, or possibly exposing it to others during the special master process. And it shows how Trump’s team provided nothing but “speculation” and unsupported claims.

Unlike Cannon, who was dismissive of the DOJ’s evidence and who made it clear she didn’t believe the FBI or DOJ on any point, the appeals court explained—again, none too subtly—that there are limits on just how much a judge can decide to ignore the evidence, especially when the other side has presented exactly no evidence for their position.

Whether a court should exercise its equitable jurisdiction in this context “is subject to the sound discretion of the district court.” But that discretion is not boundless.

The ruling doesn’t just give the DOJ what it wanted in allowing investigators to proceed with the entangled national security and criminal investigations, it’s a serious slap down to Cannon and to the whole idea that Trump and his team are due some kind of very special treatment, even if that means that Cannon has to write their positions for them.

While this ruling was very narrow, drafted in response to an emergency request from the DOJ that focused only on the matter of the stay, the 11th Circuit panel gives a very good preview of how it is likely to rule on the whole matter of Cannon’s appointment of a special master. For example, the panel takes time to point out how Trump got his special master—without ever following the legal steps necessary to request a special master in the first place—and that some of the reasons Cannon used in providing a special master are not in the law that creates the position.

When it comes down to the idea that Trump has some kind of right to possess, or even access, the classified documents, the panel is exceedingly clear that Trump has no business holding onto this information. For example:

“For our part, we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings….”


“Plaintiff has not even attempted to show that he has a need to know the information contained in the classified documents. Nor has he established that the current administration has waived that requirement for these documents.”


“Even if he had, that, in and of itself, would not explain why Plaintiff has an individual interest in the classified documents.”

In other words, why the hell do you need to look at Top Secret documents, Donald? 

The decision also addresses Trump’s maybe-I-declassified, maybe-I-didn’t attempt to cast doubt over the documents in which his legal team constantly insists that the classification of the documents is “in doubt” without ever giving evidence that Trump took step one to alter that classification.

“Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents.” 

So the panel was listening in as Dearie beat Trump’s team around the head and shoulders during that hearing. Nice.

Overall, this ruling is exactly what the DOJ needed, and exactly the kind of smackdown that Cannon’s twisted opinions deserve. That it comes from a panel that was two-thirds appointed by Trump only makes it sweeter.

But there is one potential stumbling block ahead. The rules of the 11th Circuit don’t allow for decisions made by a three-judge panel to be appealed to the court en banc. Instead, any appeals go straight to the Supreme Court. And who receives appeals from the 11th Circuit Court of Appeals? That would be Clarence Thomas.

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