In its ruling yesterday overturning Judge Aileen Cannon’s injunction—with regard to the approximately 100 documents bearing classified markings seized from former President Donald Trump’s Mar-A-Lago residence—the 11th Circuit did not merely overrule Judge Cannon, it went out of its way to detail the many ways in which Judge Cannon had fundamentally misstated the law.
In my more than 25 years of practice as a criminal and civil litigator (including three years as an assistant US Attorney), I do not believe that I have read an appellate decision that was more dismissive of the lower court. The 11th Circuit sent a clear message to Judge Cannon and Trump: stop doing this.
Let’s take them one by one.
1. The 11th Circuit (in Footnote 4 of its ruling) explicitly poured cold water on the idea that the FBI raid was designed solely to harass Trump:
The Supreme Court has recognized an exception to this general rule—where the “the threats to enforce statutes against appellants are not made with any expectation of valid convictions, but rather are part of a plan to employ arrests, seizures and threats of prosecution under color of the statutes to harass appellants.” Plaintiff has not made such an allegation here, nor do we see any evidence in the record to support one.
2. The 11th Circuit absolutely eviscerated Judge Cannon’s finding that the prospect of facing criminal prosecution was a harm from which Trump deserved protection:
Second, we find unpersuasive Plaintiff’s insistence that he would be harmed by a criminal investigation. “Bearing the discomfiture and cost of a prosecution for a crime even by an innocent person is one of the painful obligations of citizenship.” Cobbledick v. United States, 309 US 323, 325 (1940).
“In my more than 25 years of practice…I do not believe that I have read an appellate decision that was more dismissive of the lower court.“
3. The 11th Circuit literally held that none of the relevant factors favored granting Trump his injunction:
In sum, none of the Richey factors favor exercising equitable jurisdiction over this case. Consequently, the United States is substantially likely to succeed in showing that the district court abused its discretion in exercising jurisdiction over Plaintiff’s motion as it concerns the classified documents.
4. The 11th Circuit also flamed Judge Cannon’s attempt to split the baby by holding that the intelligence community could continue the national security review of the 100 documents bearing classified markings, but the FBI could not do any criminal work with those documents:
This distinction is untenable. Through [Assistant Director of the Counterintelligence Division of the FBI] Kohler’s declaration, the United States has sufficiently explained how and why its national-security review is inextricably intertwined with its criminal investigation. When matters of national security are involved, we “must accord substantial weight to an agency’s affidavit.”
5. The 11th Circuit also affirmed the Justice Department’s argument that allowing the Special Master—or Trump’s defense team—to review the 100 documents bearing classified markings would be an “irreparable harm” to the United States.
The United States also argues that allowing the special master and Plaintiff’s counsel to examine the classified records separately would impose irreparable harm. We agree. The Supreme Court has recognized that for reasons “too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.” As a result, courts should order review of such materials in only the most extraordinary circumstances. The record does not allow for the conclusion that this is such a circumstance.
6. Finally, the 11th Circuit basically held that the DOJ had already satisfied the most important element of an eventual prosecution under the Espionage Act (18 USC Section 793(d).
Here’s what Section 793(d) states:
“Whoever, lawfully having possession of [a document] relating to the national defense which information the possessor had reason to believe could be used to the injury of the United States or to the advantage of any foreign nation…willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it” violates the Espionage Act and “shall be…imprisoned not more than ten years” for each document willfully retained.
Yesterday, the 11th Circuit held:
The documents at issue contain information “the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security.”
The 11th Circuit almost certainly selected that parallel language to provide Judge Cannon and Trump a message: the former president does not have any legal defense to an indictment for violation of the Espionage Act. If he is indicted, the indictment will not be dismissed. If he is convicted, the conviction will not be overturned.
In short, as long as the documents were properly marked as classified in the first place, Trump is screwed.
In summation, my take on the 11th Circuit’s response to Judge Cannon’s order is best captured by Vincent LaGuardia Gambini in his opening statement in the 1992 film My Cousin Vinny:
“Everything that guy just said is bullshit.”