Aileen Cannon decided not to push her luck any further

The ruling Wednesday evening by a unanimous panel of the U.S. Court of Appeals for the Eleventh Circuit to slap a partial stay on a lower court’s ruling that froze the Justice Department’s Mar-a-Lago investigation should surprise nobody.

The decision by U.S. District Judge Aileen Cannon was a hot mess, as we and others detailed when she handed it down, and the grounds for an almost-inevitable appellate court intervention were obvious at the time. That said, the 29-page opinion is important in a number of respects.

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[T]he court of appeals treated [Cannon's ruling] (correctly) as an abuse of discretion on the part of Judge Cannon—that is, beyond the realm of reasonable argument among jurists.

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[The 11th Circuit's] unanimity and speed emphasize the fact that Judge Cannon’s interference in the Justice Department’s investigation was a gross impropriety, not a plausible legal position. That two of the panel members were, like Judge Cannon, appointed by President Trump further emphasizes that this is a matter of professionalism, not a matter of ideology or the sort of judicial philosophy that reasonably separates conservative from liberal jurists.

So too does the fact that the court ruled within 24 hours of the government’s final brief—and wrote in a per curiam opinion, that is, in the voice of the court itself, not of its individual judges. In short, giving the government relief from Judge Cannon’s injunction was a very easy call—one that required neither time nor any significant deliberation. Rather, the rate-limiting step in issuing this opinion was the speed with which judges of diverse political stripes could type.

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However it plays out, the most important fact is that, in the meantime, the department is free to continue its investigation, both the criminal investigation and the national security damage assessment, as to the classified documents stowed away at the former president’s golf resort.

  Lawfare Blog

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.

  Yahoo

Smackdown.

In my more than 25 years of practice as a criminal and civil litigator (including three years as an assistant U.S. 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.

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[T]he 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.

Continue reading.

The Justice Department explained all this to [Judge Aileen] Cannon, who apparently didn’t care enough to change her ruling. Luckily, the 11th Circuit did.

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Cannon suffered a rout on Wednesday night when the 11th U.S. Circuit Court of Appeals shredded every aspect of her decision that halted the criminal investigation into Donald Trump. The three-judge panel, which included two fellow Trump nominees, gave the Justice Department a complete victory, identifying multiple grievous errors in Cannon’s reasoning. Technically, the 11th Circuit ruled against Trump, but much of its reasoning reads like a ruling against Cannon herself—a vehement repudiation of her sloppy effort to run interference for the president who appointed her. Most notably, the panel emphasized the most dangerous consequence in Cannon’s decision: In twisting the law for Trump, the decision created a startling and unlawful threat to national security.

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Just last year, the CIA warned that a shocking number of its informants had been arrested and killed by foreign nations. The agency also noted its struggle to recruit new informants. It is hard to imagine that anyone would want to sign up if they knew that a former president could keep documents revealing their identity in an unlocked room at his resort—then persuade a federal judge to prevent the FBI from ascertaining how much danger they’re in because of the president’s negligence.

  Slate

Well, I wonder if the "shocking number" of CIA informants arrested and killed was due to Trump's having those documents. Presumably, an investigation into that is happening in some form through the CIA. I hope. The FBI will now be investigating as far as they are able, and presumably they will pass the appropriate documents to the appropriate agencies in their assessment of the damage caused by Trump having those documents. Honestly, I don't think we've reached past the surface in this matter.

Here, then, is the chief distinction between Cannon and the two Trump nominees who ruled against her, Andrew Brasher and Britt Grant. All three judges are extraordinarily conservative. All three might even bend the rules to favor Trump. But Brasher and Grant were not willing to fully break the rules, at least when doing so could subvert the U.S. government’s ability to protect itself from foreign threats. Cannon’s conduct places her in a separate class of hard-right judges—you might call them ultra-MAGA—who will do anything to further their political and ideological agenda.

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If Trump dares appeal the 11th Circuit’s decision to the Supreme Court, he will lose, perhaps unanimously.

I'd say that's likely, but I wish I could be as certain.

For now, anyway, Cannon wisely decided to correct course.

On Sept. 22, Judge Aileen Cannon struck down two sections of her Sept. 5 order to appoint a Special Master to oversee documents seized by the FBI from Trump's Mar-a-Lago residence in response to the Eleventh Circuit Court of Appeals’s decision granting the Justice Department's motion for a partial stay of her order.

The provisions of Cannons order that were stricken include Paragraph 6, which requires the Special Master to submit interim reports and recommendations to the court throughout their review, as well as Paragraph 5(b)(i)(bb), which requires that classified documents under review be made available to Trump’s counsel for inspection under supervision of the special master.

  Lawfare Blog

Meanwhile, Judge Raymond Dearie, the Special Master appointed by Cannon, has announced a case management plan requiring Trump to provide a rundown of which documents he is asserting which kind of privilege over, among other things. (Because of the stay and Judge Cannon’s revised order, Dearie’s review includes only the documents seized from Mar-a-Lago that were not marked classified.) The order also requests that Trump provide a list of any documents he believes were planted by the FBI during the search and were not originally at Mar-a-Lago—essentially demanding evidence for a claim that Trump has repeatedly made on television but failed to back up in court. And, Dearie indicates that he may later ask the parties to submit a brief as to whether a 41(g) motion should be heard before Cannon or Magistrate Judge Bruce Reinhart, who originally issued the warrant for the Mar-a-Lago search. Under the timeline Dearie sets out, he would submit recommendations to Judge Cannon by the end of October.

  Lawfare Blog

Ooooh, before the November elections. (She specifically gave him until the end of November to submit his recommendations.)

...but hey, do what you want...you will anyway.