DOJ Files Appellate Court Motion for Partial Stay Against Judge Cannon Ruling, DOJ Does Not Want Classified Documents Reviewed


Posted originally on the conservative tree house on September 17, 2022 | Sundance 

As the DOJ-NSD originally threatened, they have filed an appeal of the ruling by Judge Cannon in the Trump Mar-a-Lago document case. [Pdf Here]

The DOJ is requesting the 11th Circuit Court to intervene and “stay” or block a part of the ruling surrounding letting the Special Master, Judge Raymond J Dearie, review the “classified documents” and make an independent determination as to the validity of the DOJ-NSD claims.

Having read all the motions in the case, you can get a sense of the authorship from the motion.  From my perspective this effort appears to have been written by the Lawfare group and filed by their allies in Main Justice at the DOJ National Security Division (DOJ-NSD).  The bottom line is they really don’t want any outside party making a determination as to the status of the 100 “classified documents,” and/or consider if President Trump had previously declassified them.

The crux of their position is outlined in this part of the motion, which appears to hold a logical fallacy [pdf link Here]:

The framework of the appeal appears to be built on a false premise.  The DOJ argument is contingent upon the government not having the original documents, and the claim is made *AS IF* there is only one copy.  Even if this appeal is within the framework of a valid issue for an appellate court review (not a guarantee), when you apply commonsense the motion fails on its face.

The original documents are always retained by the originating agency.  No one, not even the President, sees original intelligence documents from within any agency creating the product.  Everything, including what President Trump would have seen while in office, and including any “read and return” version of the intelligence product, is a copy that stems from the originals.  As a result, the executive branch (DOJ) has access to the originals regardless of what copies they may have retrieved from Mar-a-Lago.

Once again, the DOJ -together with the internal intelligence agency, likely the ODNI- is claiming to be the arbiter of the “classification” status of the documents at issue.  If President Trump declassified those documents before leaving office (he did), the “classification” status, another underlying premise, is automatically moot.  This reality is the central flaw in the DOJ case and appears to form the basis for Main Justice to be so adamant against anyone else reviewing the documents.

So, there are two structural flaws: (1) There is more than one copy of the documents being argued, and the DOJ has access to the originals; and (2) the classified status of those documents is unknown (hence a special master), and if they were declassified the DOJ-NSD contention around them is automatically moot.

The Special Master appointed by judge Cannon is a former FISA Judge FISA judge.  Judge Raymond J Dearie likely has seen thousands of classified documents over the years, he is not a national security risk by reviewing another set of defined classified documents.  Additionally, the documents have been in Mar-a-Lago for almost two years, the urgency claims by Main Justice look silly.

The DOJ-NSD looks desperate and nonsensical in this filing because the arguments being made by the DOJ-NSD are desperate and nonsensical.

The currently presented legal conflict is essentially over a judicial ruling that -if implemented- resolves the legal conflict.  Therefore, there is no guarantee the 11th Circuit Court of Appeals will even take the DOJ motion under review.  The legal conflict seemingly resolves if the existing judicial ruling is applied.

We keep watching….

(New York Times) – WASHINGTON — The Justice Department asked an appeals court on Friday to let the F.B.I. regain access to about 100 sensitive documents taken from former President Donald J. Trump’s residence in Florida but did not try to block the appointment of an outside arbiter to review other materials.

In a 29-page filing, the department asked the appeals court not to submit the roughly 100 files marked as classified through the vetting process of the arbiter, known as a special master — acquiescing to the review for 11,000 other documents seized from Mr. Trump’s home and resort, Mar-a-Lago. The review has frozen the government’s access to the material as it investigates Mr. Trump’s handling of the documents.

“Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief, the government seeks to stay only the portions of the order causing the most serious and immediate harm to the government and the public,” wrote lawyers with the department’s national security division.

[…] The Justice Department initially asked Judge Cannon to stay the portion of her order that blocked it from full investigative use of the 100 or so files with classification markings, but on Thursday she refused to do so. That prompted law enforcement officials to ask the U.S. Court of Appeals for the 11th Circuit, in Atlanta, to issue a stay instead. (read more)

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