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You are here: Home / Politics / National Security / So the Bullshit Ruling from the MAGA Judge Is Out

So the Bullshit Ruling from the MAGA Judge Is Out

by | 147 Comments

This post is in: , ,

In case you missed it, or you want to refer back to it, here’s a link to the post about this matter from Saturday:

Two Long Reads from Lawfare, Both Are Worth Your Time

You can find the link to the full order here.

This tweet is the first in a thread from PopeHat.

(Just added tweets 8-10 that I found particularly interesting.)

And for what it’s worth, the Obama Bros basically said “so what if she does approve a Special Master” in their podcast – before the ruling.  Their take is that it will slow things down a little bit but that the train has left the station and there is no stopping it.

I will be interested in what Lawfare has to say about this, too, but there’s no analysis from them yet.

Balloon Juice attorneys, what say you?

Open thread.

 

Reader Interactions

147Comments

  2. 2.

    Damien

    I feel like the “special master so what?” position ignores the multiple ways that this FedSociopath blatantly disregarded precedent and law in arriving at this decision. Lovely.

  3. 3.

    Wyatt Salamanca

    One more example of dickishness from TFG

    Donald Trump once tried to pay a lawyer he owed $2m with a deed to a horse.

    The bizarre scene is described in Servants of the Damned: Giant Law Firms, Donald Trump and the Corruption of Justice, a book by David Enrich of the New York Times that will be published next week. The Guardian obtained a copy.

    Enrich reports that “once he regained the capacity for speech”, the lawyer to whom Trump offered a stallion supposedly worth $5m “stammered … ‘This isn’t the 1800s. You can’t pay me with a horse.’”

    h/t https://www.theguardian.com/books/2022/sep/05/donald-trump-tried-pay-lawyer-horse-book-david-enrich-servants-of-the-damned

  4. 4.

    Lapassionara

    This just sucks. Trump didn’t request an injunction, but the judge enjoined further review by the DOJ, except to evaluate harm to national security. So, with an injunction comes an immediate appeal. But even immediate appeals take a while, so this is just another delay. And if appealed, it goes to the 11th Circuit, not a great place right now for liberal points of view. Sigh.

  5. 5.

    feebog

    Lots of comments on Twitter about appealing, but the appeal would go to the 11th circuit, a very conservative court.  Not sure it would be reversed there.

  6. 6.

    Scout211

    Just to remind everyone, SCOTUS ruled against F-POTUS and his presidential records earlier this year, including issues of executive privilege.
    SCOTUSblog

    Trump came to the Supreme Court in late December, asking the justices to put the D.C. Circuit’s decision on hold and block the release of the documents. Telling the justices that the case “fundamentally affects the functioning of the American presidency,” he insisted that as a former president, he has the right to assert executive privilege to shield documents after he leaves office. And he warned that if the committee’s requests are granted, in the future similar requests “will become the norm regardless of what party is in power.” If the request is not blocked, he added, and the records are released, the effects of their release can never be undone.

    The Biden administration countered that Trump’s request is based principally on the idea that turning over the records “would harm the Executive Branch and, by extension, the public.” But the president, rather than the former president, Solicitor General Elizabeth Prelogar wrote, “is best positioned to make those assessments.”

    In a short unsigned order released on Wednesday night, the court turned down Trump’s request. The court acknowledged that the “questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office” when the current president has decided to waive the privilege “are unprecedented and raise serious and substantial concerns.” However, the court continued, the D.C. Circuit did not decide those questions because it concluded that Trump’s documents would not be entitled to protection even if he were the current president.

  7. 7.

    Omnes Omnibus

    Reposted from below: District judge do dumb shit all the time.  If this survives an appeal, I will be more concerned.

  8. 8.

    Xenos

    Way out of my range of expertise here, but I think Popehat is likely to be right.  Very stupid approach by the judge – if I were the DOJ I would go after her jurisdiction, as that can not be waived.  She needs a firm reversal by the appeals court.

    in any case, there is not much for a social master to do.

  10. 10.

    Baud

    I think the injunction is the real problem.  And treating Trump as special because he was president. The Special Master Isn’t a huge problem in itself.

    Also, the court didn’t really have jurisdiction.

  11. 11.

    Chief Oshkosh

    We can all wish that this most recent ruling isn’t that big a deal, but it is. If every Trump-appointed judge tosses precedent, hell, tosses just basic logic, then we de facto are no longer a nation of laws. This is how despots come to power “legally.”

  13. 13.

    Balconesfault

    What’s the chance that this ruling was written by a panel of well paid Federalist Society lawyers and slipped under the judge’s door over the weekend?

  14. 14.

    James E Powell

    Carried over from the earlier thread:

    The real absurdity is that the order is for a neutral person. If someone claims to be neutral about Trump, then they are a pro-Trump person & a liar. Cf. Finding jurors for the OJ trial who heard nothing about the case.

    Republicans will not accept any special master who is not a pro-Trump Republican and they will not accept any result that is not a pro-Trump result.

    The court is looking for another Bill Barr.

  15. 15.

    James E Powell

    @Goku (aka Amerikan Baka):

    Carried over from an earlier thread:

    Dude, the guy literally stole classified government documents. National security is serious business. He ain’t getting away with this.

    Care to make a little wager?

  16. 16.

    JoyceH

    I’ll admit I’m surprised at the ruling. I always underestimate how little self-esteem the Trump judges have. Siding with a request that’s legal gibberish publicly brands her a dirty judge and bought off.

    But the upshot ought to be interesting. If past is prologue, Trump is going to interpret this ruling as complete vindication (“the judge said I did nothing wrong, the documents were perfect, fire the FBI…”) and then come out with some damaging admission/confession to criminality just out of the blue (“good thing they didn’t check the towel cabinet in the pool cabana, the documents in there have Putin’s fingerprints on them.”)

  17. 17.

    Joseph Patrick Lurker

    WG,

    By “Obama Bros”, are you specifically referring to Tommy Vietor and Jon Lovett? Do you have a link to the podcast to which you referred?

  19. 19.

    raven

    “On the other hand, this notion that this is so extraordinary and that she’s granting it because it’s the former President, I think is sort of good news for the Justice Department, because one of the problems with this is it sets a precedent for other defendants down the road who say, ‘Hey, wait a minute, you searched my stuff, I want a special master even though it’s not my lawyer’s office and there’s no reason to believe there’s a lot of privileges apply,” so, I think that piece of it is good.”
    Rodgers explained that there is a silver lining, “in the sense that I don’t think that ultimately there are going to be a lot of attorney/client privileged documents found… very few attorney/client privilege documents and even the executive privilege side, executive privilege would only only pertain if documents were created in the executive branch, really, at the White House, and so many of these documents are going to have been created other places.”

  20. 20.

    Carlo Graziani

    From the  order:

    On or before September 9, 2022, the parties shall meaningfully confer and submit a
    joint filing that includes:

    a. a list of proposed special master candidates; and

    b. a detailed proposed order of appointment in accordance with Rule 53(b), outlining, inter alia, the special master’s duties and limitations consistent with this Order, ex parte communication abilities, schedule for review, and compensation

    So, they have to agree on a list of candidate SMs, and at least that means that DOJ can limit her freedom to appoint some Federalist Society hack. That’s something.

    Coming to agreement on schedule and limitations by Friday is going to be interesting, though.

  21. 21.

    dm

    I agree on the “not a big deal”, but I’m not a lawyer.

    The Special Master will say: these notes to his lawyer dated after 20 Jan 2021 aren’t Presidential Records (even if on stolen White House stationery), and can’t be used in any investigation. These stolen materials, on the other hand, are fair game for us as evidence. Especially the ones with classified markings.

    Hopefully the Special Master and minions will handle the classified materials with gloves, so they can still be finger-printed.

    It won’t change anything because Justice had already brought in a taint team to avoid the possibility of contaminating their investigation with attorney-client privileged materials.

    Well, precedent, I suppose.

  22. 22.

    PPCLI

    The specific ruling is troubling, but what’s more troubling still is the sense that we will be seeing an avalanche of such blatantly lawless Federalist Society Trump-judge rulings over the next few years, upheld by the activist 11-th circuit and shadow docket reaffirmed by the SCOTUS. I worry we’ll look back on this as just one more step toward the vanishing of the rule of law.

  23. 23.

    Mustang Bobby

    The law studies I’ve undertaken have been at the behest of Perry Mason and Jack McCoy, but my first thought is that this will slow things down but not end it, and when Trump and the gang gets indicted they can’t complain that they got railroaded, even though they will.  A snow fence doesn’t stop a blizzard.

  25. 25.

    Scout211

    @hueyplong:

    Bradley P Moss Twitter

    This is Cannon making a special exception to the case law just for Trump. Criminal defense lawyers will be salivating over this analysis but every other judge will reject using it because this is meant for Trump and Trump alone.

     

    Trump has one goal here, folks. Delay delay delay. Delay the impending indictment as long as possible. If indicted, delay a trial for as long as possible leading up to the 2024 election.

  26. 26.

    JoyceH

    I would love it if the appeals court overturned the ruling with one sentence – “request filed in wrong jurisdiction”.

  27. 27.

    patrick II

    Marcy Wheeler makes the interesting observation that none of Trumps non-classified trophy material that was mingled in with the classified documents was dated after November November 2020.  Marcy speculates, with some evidence, that Trump’s filing system was putting whatever he had read into a box to be carried away when finished and filled.  So, boxes from November and December of 2020, and January of 2021 may still be missing. The FBI is probably right about missing material.

  29. 29.

    Bill

    DOJ has probable cause to arrest.  If they want to get this done they can prep walk him today.  Every delay is a win for tfg.

  30. 30.

    James E Powell

    @Bill Arnold:

    I guess the first part is defining “gets away with it” – I say does no time, pays no fine.

    The stakes should be mostly symbolic. For my wagers, bragging rights are more important than the stakes. I don’t want anyone – especially me – to suffer economic loss.

  32. 32.

    Anonymous At Work

    1. Trying to find information on whether the injunction applies to ONI’s damage review.  That’s the big one and, if she extended the injunction request to cover the damage review, the likeliest source for overturning the decision on appeal.
    2. Appeal should be coming but were I the DoJ, I might waive (or seek to waive) any stay of the order to move things along more quickly.
    3. Concurrent list of Special Master candidates is a good idea but Trump will run into the problem: Who does he trust that has Top Secret and SCI privileges?  That realm is small, tends to be professional, and any MAGAts likely obtained such privileges politically but only for the duration of Trump’s tenure in office.
    4. With the above in mind, the Special Master might not be too big a delay if they limit themselves to checking the “math” done by the DoJ Taint Team on attorney-client and focusing most of their effort on “executive privilege” as it relates to communications between the President and senior advisers on lawful actions.
    5. Special Master findings outside #4 will run into problems on appeal from DoJ, namely the briefs filed might contain yet more horror stories about the documents and video tapes of the security for the documents.  How many went into the room, how many lacked background checks, how many wouldn’t be able to get Classified if subjected to a background check, etc.
  33. 33.

    Almost Retired

    Omnes said it more succinctly, but with the federal judiciary at the District Court level, it’s “another day, another thoroughly appealable crackpot decision.”  Don’t panic yet.

    Here in Los Angeles, when I practice in state court, I don’t worry much about crazy decisions at the Superior Court level.  Maybe it’s because our last Republican governor didn’t appoint many crazies, maybe it’s because the Judges face potential election challenges, maybe it’s because they want to appear moderate because they envision a lucrative post-retirement career as a $1,000 per hour neutral-for-hire (or “rent-a-Judge” to be less charitable).

    Federal Court is a whole different animal, at least in my experience.  The Judges appointed are often far more ideological and, recently, woefully inexperienced as part of the Republican effort to pack the Court with young ‘uns who will bedevil us for 40 years or more.  Plus, they have a position for life, and seem to become more imperious the longer they are on the bench.

    Crazy-ass rulings from the bench in my employment discrimination cases in federal court were basically the norm.  And more often than not, it was fully or partially fixed on appeal.   Whenever I was assigned to the late, great (OK, not great but finally late) Judge Manny Real, I simply told the client to expect an appeal.

    That being said, I’m practicing in the 9th Circuit, not the 11th.  However, appellate courts love to scrutinize a district court decision into oblivion if it raises significant issues (“We shall decide this at our loftier level, you peon.”)  So even in the 11th, I wouldn’t expect a rubber stamp.

    As Baud and Omnes said, I’m waiting for the appellate court to speak before I return to the District Court decision to determine the appropriate freak out level.

    And, btw, am I glad I’m almost done with this legal bullshit!!!

  34. 34.

    James E Powell

    @Bill:

     Every delay is a win for tfg.

    The history of prosecutions of rich & well-known people says the exact opposite. Slow & steady wins these races.

  35. 35.

    Brachiator

    I enjoy and hopefully learn from the legal opinions here.

    Trump enjoys any delays he can get. He has unleashed his inner rage monster and feeds on his rallies. This gives him maximum opportunity to get his lies before the public.  He is also trying to work the midterms.

    A question. Does it matter that Trump has never formally asserted ownership of these documents or explain why he has kept them?

    Also, does it matter that Trump has never clarified which of his staffers has had regular access to these documents?

    Has Trump confirmed that he still has any documents that he has not returned to the government? Has he given any documents away?

    If Trump were to be taken into custody, would his Secret Service detail go to jail with him?

  36. 36.

    Quantumman

    I do not comment often but I feel a need to here.  This really concerns me. This keeps alive Trumps possibility of slithering out of this illegal keeping of classified documents.  The more stuff like this keeps happening the probability he escapes increases. If he escapes I see him emerging more powerful than before to his followers. He keeps creeping towards being above the law.

  37. 37.

    Another Scott

    I’m NAL and don’t pretend to be one.

    But I have a very vague recollection of some infamous case years ago where one judge was initially in charge of the case then some second judge in another court somehow got involved and then the first judge said – hey, not so fast, this is my case – and somehow shut it down. (Sorry, I don’t remember anything specific about it.)

    Could something like that happen here with Magistrate Judge Bruce Reinhart in the U.S. District Court for the Southern District of Florida? Isn’t it clear that Aileen Cannon shouldn’t have gotten involved in the first place? Is that a way to get Cannon out of the case without an appeal to the 11th Circuit?

    Thanks.

    Cheers,
    Scott.
    (“Who is aware that there’s almost never One Weird Trick, but it sometimes seems to happen when the law is involved.”)

  39. 39.

    gene108

    @Damien:

    I feel like the “special master so what?” position ignores the multiple ways that this FedSociopath blatantly disregarded precedent and law in arriving at this decision. Lovely.

    I like it. I hadn’t thought about not appealing.

    The chances this ruling gets seconded upon appeal by more Federalist Society sociopaths does exist. The old rules no longer apply. We’re in uncharted legal territory.

  40. 40.

    Anonymous At Work

    @Brachiator: Answering in sequence:

    1. It should but didn’t here.  Judge Cannon took non-specific claims of privilege and applied them universally.
    2. Not yet.  That’s more of an affirmative defense at trial.
    3. No, he hasn’t and that would be self-incrimination to ask.  He may be asked to confirm such for National Archives, but he’d keep that quiet.
    4. Not confirmed either way.  That’d be huge to confirm.
    5. Yes.  How that would work is unknown, though.
  41. 41.

    prostratedragon

    “As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own,”

    Christ what bullshit!

  42. 42.

    H.E.Wolf

    In the spirit of John Cole’s post, I’m spending no time on Judge Cannon’s ruling – my project for today is updating a small portion of the zillion-address-changes list that I’m doing for the local Blue team. The wrist braces I use for data entry projects are the same that I used for sword-and-shield class, so I feel Very Powerful. :)

    I figure every update I do, is a person who’s that much more likely to be reached by a field organizer in their region (instead of the region they used to live in).

    Meanwhile, Electoral-Vote blog (consisting of two very level-headed writers) is fond of pointing out that a week is a long time in politics. Things may look different, and better, by next Monday.

  43. 43.

    gene108

    @Balconesfault:

    What’s the chance that this ruling was written by a panel of well paid Federalist Society lawyers and slipped under the judge’s door over the weekend?

    I’d put it at 50/50.

  44. 44.

    WaterGirl

    @Joseph Patrick Lurker: Yes, I am referring to the Pod Save America guys.

    I listened to two or three of their podcasts last night on the same general subject, but I’m pretty sure the one I was referring to was Jon F. and Dan which would make it the one from Thursday night.

  45. 45.

    kindness

    Do I trust this Supreme Court to not go absolutely into the tank for Trump?  No, they positively will.  MoscowMitch really screwed us over loading up the Federal benches with trolls.

  47. 47.

    James E Powell

    @PPCLI:

    what’s more troubling still is the sense that we will be seeing an avalanche of such blatantly lawless Federalist Society Trump-judge rulings over the next few years, upheld by the activist 11-th circuit and shadow docket reaffirmed by the SCOTUS

    We’ve already seen quite a few important ones, starting with Bush v Gore. But up to now, voters have not considered the supreme court to be very important

    As of August 8th, President Joe appointed 74 judges & one justice!!! Elections matter and the next one is #@$%^!!! critical.

  50. 50.

    JaneE

    I hope the DOJ makes as much of their litigation public as they possibly can without jeopardizing prosecution or national security.  Every additional piece of documentation about Trump’s actions, whether criminal, careless of national security, or just plain narcissistic or stupid gets more play in the press and chips away at the voters who are pro-Trump but not zealots.  Not everyone who believes Trump’s lies can deny the evidence they see, over and over again, and more damning every time.

    “Whatever you think about Trump the truth is always worse” is both a meme and a fact.

  51. 51.

    gene108

    @JoyceH:

    I’ll admit I’m surprised at the ruling. I always underestimate how little self-esteem the Trump judges have. Siding with a request that’s legal gibberish publicly brands her a dirty judge and bought off.

    Low self-esteem? On the contrary, this was a flash of brash cockiness. She just lit up the “Bat Signal” to say, “Leonard Leo, I’m ready for my SCOTUS nomination!”

  52. 52.

    Anonymous At Work

    @Goku (aka Amerikan Baka): All of the Justices are politicians at some level.  They’ll want to steer clear of Trump on a personal and political level, even it limits Alito and Gorsuch et alia’s desire for an Executive Branch with all the powers of a dictator.

  53. 53.

    hueyplong

    @WaterGirl: Yes, because of one of Popehat’s points and my own subjective POV.

    I have reached my limit of instances in which an obscene Free Pass For Trump Only can be stomached as “not that big of a deal.”

    It’s merely for delay, alright, but delay is all he seeks. When you know what Trump’s team plausibly asked for and for which they supplied even arguable support, this result is just outrageous.

    I’m starting to lose my faith in the integrity of a system in which I am supposedly a part. That will either piss you off or depress you and I guess I’m in the anger stage.

  54. 54.

    MazeDancer

     

    Apparently, Judge Cannon is ambitious.

    There was discussion with Neal Katyal and Bradley Moss about how her Special Master decision would hinge, not on law, but on whether she wanted to make The Federalist Society short list for SCOTUS.

    She gave Trump everything.

    No doubt DoJ is prepared.

  55. 55.

    livewyre

    @Quantumman: When events turn this way, I can see the temptation to read power into it, maybe even in the form of disembodied will. Some folks just seem to make things happen their way. But stopping there is its own hazard.

    This is where causality comes in, which is the secret power in favor of law (i.e. consensus, i.e. us). Even a thoroughly corrupt ideologue has to keep up appearances in order to sound reasonable and keep, say, elections from turning on the backlash from a rogue decision. That presents an unavoidable vulnerability – a chance for the truth to get its boots on. And the opposition to law has gotten sloppy and complacent without rules to keep time by.

    It may sound odd in light of the above, but our best move in this forum may be to keep faith in the DoJ – not because of anyone there being particularly special, or even because of the virtue of any particular law, but because they are operating in favor of law as a principle. They stand for our democratic consensus. There may not be much for us to do to support them in their capacity as an executive agency, but giving in to (well-funded) fear and public confusion only gets in their way. Let’s do otherwise.

  56. 56.

    jackmac

    This is so tiresome and depressing. The fix is in for this a**hole at almost every level. And if any appeal gets a far as the Supreme Court, you just know how they’ll rule. He continues to skate past troubles without any accountability.

  58. 58.

    Another Scott

    @jackmac: As JC said downstairs, all we can control is our reaction to things.

    Remember that TFG lost all of his election challenges.

    We aren’t doomed.

    Hang in there.

    Cheers,
    Scott.

  62. 62.

    New Deal democrat

    I put this in the last thread, but it is on point here.

    On Saturday I wrote:

    https://balloon-juice.com/2022/09/03/two-long-reads-from-lawfare-both-are-worth-your-time/#comment-8610431

    “Two things jump out from the hearing summary:
    1. This judge really, *really* wants to appoint a special master.
    2. This judge really, *really* wants that special master’s authority to include issues of executive privilege.

    “….

    “… I see her issuing a broad order, including executive privilege, and under a rubric of “extraordinary circumstances” and “equitable jurisdiction,” essentially placing herself in the role of “supervising judge” overseeing anything having to do with this search warrant. She will have to avoid relying on the PRA; avoid enjoining the government from taking certain actions (because that’s appealable); and finding that this case is sui generis for purposes of avoiding Nixon as controlling precedent.”

    This morning Judge Cannon granted Trump’s request and ordered the appointment of a special master to review questions over the materials seized at Mar-a-Lago. She also halted the use of the materials for “criminal investigative purposes” pending the special master’s review.

    She wrote:

    “Pursuant to the Court’s equitable jurisdiction and inherent supervisory authority, and mindful of the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented, the Plaintiff’s Motion is Granted in Part….

    “The Court takes into account the undeniably unprecedented nature of the search of a prior President’s office…”

    “The Court is not convinced that similar concerns with respect to executive privilege should be disregarded ….”

    Thus concludes this installment of my mind-reading services.

    ——

    There is some discussion in legal Twitter about the fact that the Judge did not give any parameters as to how the special master could determine if “executive privilege” applies. Hint: there are none that could apply.

    Trump will now claim executive privilege as to *all the documents, and refuse to budge. This creates an issue that could be litigated for a full year or two.

    Also, by not delineating any specific standards the judge is ultimately reserving the issue to herself under her “supervisory authority.” This will also create a huge morass of issues, that could take several years to untangle.

    in the meantime, so long as her restraining order on the DoJ is in effect, they can’t prosecute him for anything having to do with these records.

    no doubt, just as she intended.

  63. 63.

    Chief Oshkosh

    @Baud: You laugh now, but some lads get the rod. Dark Brandon looked you over, he’s given you the eye, and he’s sending the goon squad.

  64. 64.

    Baud

    @Another Scott:

    We aren’t doomed.

     
    I’m doomed, but for completely unrelated reasons.

    While DOJ does their thing, tomorrow is the official celebration of the IRA and Wednesday, the Obamaa come back to the White House.

  65. 65.

    Chief Oshkosh

    @PPCLI: Yep. Each one of these “special” rulings moves us further from accountability (for Republican thugs, anyway).

  66. 66.

    M31

    about ‘protecting national security secrets’ — is there any reason to think that all of these documents aren’t already in the hands of foreign agents? I’d assume that the CIA/NSA/etc. agencies are treating all the intel in those docs as blown already (I mean, if they aren’t they’re really stupid)

    so are these secrets really important as secrets? Not that we shouldn’t punish the guilty, but is the world worse off if these secrets were actually public?

  68. 68.

    Sure Lurkalot

    My hope is that the DOJ and IC have already connected dots beyond our imagination (or perhaps more appropriately, darkest fears) and incriminations drip out from yesterday to that day when that fucking asshole croaks and beyond. I will never ever understand the deference, love and adoration given to such a sick fuck. Makes me wish I could change species.

  69. 69.

    Anonymous At Work

    @Eunicecycle: Mostly but until they create Trump or DeathSantis as the American Orban, they’ll hold back.  Can’t reveal their hand before the game is fully fixed.

  70. 70.

    jackmac

    @Another Scott: Thanks Scott for your reassurance. My initial reaction was ‘no, not again.’ But there are other avenues that could nail TFG (the 1/6 committee and investigations in Georgia and New York). And, delightfully, this Trumper judge is forever tainted by her brown nose ruling.

  71. 71.

    Chief Oshkosh

    @James E Powell: Do you have a list of such? I’m not certain there are a lot of examples that support this claim.

    Also, weren’t you arguing in other posts in this thread that Trump will not due time or even pay a fine? Trump’s always gotten away with it by delaying, by outlasting those pursuing justice.

  72. 72.

    Another Scott

    @M31: Someone made the point here a day or so ago that good intelligence agencies don’t trust anyone – not even themselves.  The point isn’t that the information will destroy the world if it gets out.  The point is that they recognize that all information will eventually get out – either through “leaks” or espionage or normal declassification decades later.  The point of having national secrets is to control when the information is released and making sure that if it is valuable to an enemy that it stays out of their hands as long as possible (within the law and applicable rules).

    So, yes, national security is damaged if TFG let important secrets get out.  (Remember that just because something is published in the FTFNYT doesn’t mean that it’s declassified.  The rules matter.)

    And the broader principle that there is a legal process for controlling and releasing information that must be followed – even by the crybaby narcissist TFG.  Precedent matters.

    My $0.02.

    Cheers,
    Scott.

  73. 73.

    New Deal democrat

    @Bill: “DOJ has probable cause to arrest.  If they want to get this done they can prep walk him today.”

    If the DoJ planned on making use of any of the seized documents in their case, as I read the judge’s stay order, they would be barred from arresting him.

    E.TA.: on another point, Armando has been right, that the practicing lawyers who have seen relying on the majesty of the law have been wrong:

    https://twitter.com/MarcACaputo/status/1566832086195081216?cxt=HHwWgMC8heTewL4rAAAA

  74. 74.

    Lacuna Synecdoche

    Chris Geidner via Watergirl @ Top:

    Cannon writes that executive privilege, in addition to attorney-client privilege, is on the table for the special master to consider—meaning everything would be reviewed.

    This is the part that really pisses me off. Anyone want to explain how a former president can assert executive privilege against the current administration? There’s only one president at a time, and right now that president is Joe Biden – not Donald Fucking Trump.

    I mean, granting review for executive privilege legitimizes the spurious and ridiculous concept that a former president can withhold government documents, including classified materials and national defense information, from the current administration.

    Think about the consequences of that. For instance, just as starting point, it would mean a former president could withhold information vital to national security from the current president, who may urgently need that information to defend the country, but now has to waste time – weeks, months, years (?) – proving it in a federal court to a judge appointed by, and ideologically aligned with, his corrupt predecessor?

    It’s fucking ridiculous.​​

  75. 75.

    featheredsprite

    I have read that DOJ tries to not pursue some targets within 60 days of an election. We are in that 60 day period. DOJ has the proof and have undoubtedly read it all. Maybe they didn’t strongly object.

    Having a Master putzing around shouldn’t impede the investigation.

  79. 79.

    Another Scott

    @featheredsprite:

    Made me look. Lawfare (from 2020):

    The policy has remained remarkably similar across administrations. Whether prosecutors read the memo issued in 2008 by Attorney General Michael Mukasey, or 2012 by Attorney General Eric Holder, or 2016 by Attorney General Loretta Lynch, they read virtually similar guidance. All three memos were issued early (March or April) in the election year, bore the same title (“Election Year Sensitivities”) and contained the same two sections in the same order: one that addressed the “Investigation and Prosecution of Election Crimes” and one that addressed the Hatch Act, a federal law prohibiting executive branch employees from engaging in partisan political activity under certain circumstances.

    Those three memoranda all state that Justice Department employees “may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” They also encourage prosecutors to contact the Public Integrity Section of the Criminal Division for further guidance regarding “the timing of charges or overt investigative steps near the time of a primary or general election.”

    This continuity has stretched into the Trump administration. In February 2020, Barr issued a memorandum with a different focus, though he cited the three previous election memoranda approvingly and noted that new requirements for opening sensitive investigations would be “in addition to all existing policies.”

    But for all this continuity, ambiguities remain. When does the policy kick in—that is, what constitutes an act “near the time” of an election? Does that mean 60 days before an election? 90 days? After Labor Day (as one of us believed when he was a federal prosecutor)? The exclusion period is not specified, nor would that be a simple thing to do.

    […]

    In 2011, the Bronx district attorney indicted under seal a New York state legislator—Nelson Castro—on corruption-related charges. Bharara’s federal office, at the request of the district attorney, partnered on the case. Castro then decided to cooperate against a group of dishonest Russian businessmen and against another corrupt member of the state legislature, Eric Stevenson, including by wearing a wire. As the election approached, Bharara faced a dilemma:

    The entire state assembly was up for reelection in November 2012. And here we were, in the fall of 2012, with Assemblyman Nelson Castro’s guilty plea still sealed, his wearing a wire still secret, his cooperation still unknown. As the election neared, we had a decision to make. Do we compel [his] resignation to allow a non-corrupt officeholder to take his place? Or do we continue the secret investigation? It was not an easy question to answer. The case was not ready. To stop now or to unseal the charges against Castro could spook the Russians and halt the collection of damning evidence. It would warn the other assemblyman, Eric Stevenson. Also, apart from the case we were developing against the Russians, Nelson Castro was attempting to help us investigate other individuals, and those investigations were at a very early stage…. If we did nothing, we would be arguably complicit in the reelection of a corrupt figure who we knew would not finish out his term.

    Was it fair to deprive Castro’s constituents of a different and hopefully more honest representative for some number of months as the investigation progressed—that is, before Castro’s guilty plea was unsealed and before he resigned from office? Was it appropriate to deny another presumably noncorrupt individual from taking that office sooner? Was it fair to Stevenson’s constituents to permit him to continue to serve as the Castro case remained sealed and the investigation progressed? And would it have been fair if the Castro case was revealed too early—and Stevenson was not prosecuted as a result, though prosecutors had good evidence that Stevenson was corrupt, too? As Bharara reflected, “did we defraud the public or do a public service?”

    […]

    LIfe – and the law – is complicated.

    See the original for embedded links.

    I am sure that Garland will follow any guidance closely, but I’m also sure that he will make sure that everyone – no matter their status – is subject to the same laws as the rest of us.

    FWIW.

    Cheers,
    Scott.

  80. 80.

    UncleEbeneezer

    On next steps for DOJ,
    @BarbMcQuade
    : “Delaying the criminal investigation certainly is something that is concerning, but if they can get this special master appointed quickly and have the review conducted quickly, that could be faster than appealing the order.” #AMRstaff

  82. 82.

    Anonymous At Work

    A couple of things:

    1. “Executive Privilege” is an implicit right, like the right to Privacy, that was read into the Constitution in US v. Nixon, that the President has some right to protect his/her decision-making process from outside investigation.  It has not been seriously tested because it usually comes up in Congress v. President situations, and one side usually blinks first and finds an accommodation.
    2. AG Merrick Garland released a memo highlighting and reinforcing standing DoJ Policy not to *ANNOUNCE* charges, investigations, arrests, etc. of political figures and candidates for office within 60 days of the election without Garland’s personal approval.
    3. Under-reported fact: All of the worst things to happen to Trump since the warrant have been in DoJ briefs replying to Trump’s motions.  A brief appealing Judge Cannon’s opinion is likely to include more facts.
  83. 83.

    oldgold

    Here is someone as outraged as I am over this corrupt ruling.

    @NormOrnstein

    ”An outrageous usurpation of power and threat to the rule of law. She has violated her oath of office and the judicial code of ethics. All to protect her benefactor. She ought to be impeached and removed from office.”

  84. 84.

    Bill Arnold

    @gene108:

    She just lit up the “Bat Signal” to say, “Leonard Leo, I’m ready for my SCOTUS nomination!”

    That is true. She’s betting her future on Red.
    From her Judiciary Committee disclosure form, she declared that she was a financial tabula rasa , at least prior to confirmation. (Don’t know how usual this is. Retyped by me because the pdf is images.)

    “20 Deferred Income/ Future Benefits: List the sources, amounts and dates of all anticipated receipts from deferred income arrangements, stock, options, uncompleted contracts and other future benefits which you expect to derive from previous business relationships, professional services, firm memberships, former employers, clients or customers. Describe the arrangements you have made to be compensated in the future for any financial or business interest.

    None.”

  85. 85.

    Lacuna Synecdoche

    featheredsprite:

    I have read that DOJ tries to not pursue some targets within 60 days of an election.

    Garland can exercise that discretion in an overabundance of caution, but I don’t see why it would be necessary in Trump’s case. The next presidential election isn’t until 11/2024, more than two years away, and Trump hasn’t even announced his candidacy yet.

    I think Garland would be well within his rights, and within historical norms, if he continued investigations or even brought charges before this year’s mid-term election.

    It’s not like a presidential election is 10 days away – which, it should be noted, didn’t stop Comey from announcing an investigation into Hillary Clinton 10 days before the 2016 presidential election.​​
    ​
    ​

  86. 86.

    Damien

    I feel like we’re going to need a law school Flexner report, because there has come a rot from within. Every sitting and prospective judge should get an inspection of every aspect of their lives that makes a colonoscopy feel like a thermometer, with every little piece of it publicly available.

    While I’m at it I’d like a pony

  87. 87.

    Martin

    Biden should lean into this. The WH should, given the judge’s ruling that executive privilege is on the table, demand that the Special Master turn over all documents to the WH counsel (Stuart Delery) so he can determine if these WH documents can be evaluated by the FBI (obviously yes, since they are part of the executive branch).

    As yet, nobody has explained to me how you assert executive privilege against the executive branch, or how a private citizen can assert executive privilege or how a judge or agent of a judge can assert executive privilege. But if the judge wants to put it on the table, then Biden should take it with both hands.

  91. 91.

    Martin

    @prostratedragon: Not exactly. But more to the point – executive privilege is something that the WH legal counsel/President asserts.  Only they can assert it. And it’s an assertion that the executive branch retains some rights from the *other branches*. So the only executive privilege that can be asserted here is that the WH says that *Congress* or the *courts* may not evaluate these documents, not that the FBI (part of the executive branch) cannot.

    It makes no sense at all. At the very heart of it is the fact that in order for a document to be subject to executive privilege, it needs to be the property of the executive branch – which means that it’s been stolen by Trump. Executive privilege is *proof* these are stolen. By virtue of it being stolen goods, Trump would have no rights to them whatsoever.

    There is a fair evaluation for atty/client privilege, but only for documents that are Trumps private property, and not government property. That’s fair game.

  92. 92.

    O. Felix Culpa

    If the issue with the documents is Executive Privilege, isn’t Joe Biden the current Executive? And as such, couldn’t he just waive privilege, as he has on other occasions? I don’t recall that privilege resides in ex-presidents.

  93. 93.

    Bill Arnold

    @New Deal democrat:

    She also halted the use of the materials for “criminal investigative purposes” pending the special master’s review.

    Are you quoting something? She writes:
    “…the Court also temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order. …”
    This wording, unless she’s clarified it, blocks the FBI’s use of the materials for their counter intelligence investigation, which is mostly what this investigation into an extremely illegal classified documents trove at Mar-a-Lago is about.
    This part of the order is not an out; it appears to cover damage assessment, not the counterintelligence investigation (though please correct me if I’m wrong):

    This Order shall not impede the classification review and/or intelligence assessment by the Office of the Director of National Intelligence (“ODNI”) as described in the Government’s Notice of Receipt of Preliminary Order [ECF No. 31 p. 2].

  94. 94.

    James E Powell

    @Chief Oshkosh:

    @Bill:

    I do not have a list, but people with money – and in this case a lot of political support in the judiciary – can make any small omission by the prosecution into an outcome determinative issue. The prosecution needs to make sure every i is dotted, every t crossed, every bullshit objection prepared for. And even with all that, I still say no time, no fine.

    What I think is at stake is not just the preservation of Trump. I think his downfall will reveal things the Republicans do not want made public.

    My favorite conspiracy theory that has no evidence is that Ken Lay is still alive. Or maybe that he was murdered by the Bush crime family to keep him from turning state’s.

  95. 95.

    James E Powell

    @Lacuna Synecdoche:

    It’s not like a presidential election is 10 days away – which, it should be noted, didn’t stop Comey from announcing an investigation into Hillary Clinton 10 days before the 2016 presidential election.​​

    But we all agree what Comey did was wrong and we do not want our people to do wrong things.

  96. 96.

    Scout211

    @O. Felix Culpa: I don’t recall that privilege resides in ex-presidents.

    Judge Cannon said in court that she didn’t think it was that cut and dry (or similar wording).  However, see my comment at #6 above. Appellate court and SCOTUS have already ruled against Trump earlier this year regarding his presidential records and his claim of executive privilege after leaving office.

    IANAL, but I would be highly surprised if Cannon didn’t know of that previous ruling. But she is now just trying to make it seem less definitive in order to seek this delay, for Trump.

  99. 99.

    New Deal democrat

    @Bill Arnold: It’s actually the opposite: the government can continue to review the documents as part of any counterintelligence operation or assessment, but can’t do anything with them to further any prosecution, until the special master review is complete (which she has structured in a way to allow for years of litigation).

  101. 101.

    Wapiti

    @James E Powell:

    Republicans will not accept any special master who is not a pro-Trump Republican and they will not accept any result that is not a pro-Trump result.

    The court is looking for another Bill Barr.

    One wonders: are Obama’s credentials as a lawyer up to date? He’d probably be able to be cleared for the classified stuff pretty quickly.

  102. 102.

    New Deal democrat

    @Bill Arnold: in further response, go to p. 23 of the Court’s ruling, paragraph 2 of the conclusion.

     

    Unfortunately I can’t copy and paste from the document, but it specifically states that the stay is for “criminal investigation” purposes. She specifically exempts the OSDI from the stay.

     

     

    @Bill Arnold:

  103. 103.

    Bill Arnold

    @New Deal democrat:

    part of any counterintelligence operation

    The usual term in the US appears to be “Counterintelligence Investigation”, with “Counterintelligence Operation” the Soviet term.

    At any rate, she says “investigative purposes”, not “criminal investigative purposes”. IMO she is trying to block investigation of potential distribution of US classified material to enemies of the USA, perhaps because her benefactor who put her on the bench is involved.

  104. 104.

    catclub

    @M31: but is the world worse off if these secrets were actually public?

     

    The cambodian secret bombing was not secret to the Cambodians, but it had to be kept secret from the US public. For reasons.

  105. 105.

    dm

    @Another Scott: I’m kind-of glad this decision came down today, in time for Preet and Joyce Vance to discuss it tomorrow on they podcast (assuming they weren’t planning to take the week off).

  106. 106.

    karen marie

    @Xenos:   I don’t understand, if/given jurisdiction is an issue, why that wasn’t addressed in the first response by the DOJ.  Doesn’t not addressing that at the outset concede jurisdiction?

  107. 107.

    JPL

    @zhena gogolia: I just saw her pictures and she gave him all they requested and more.

    On appeal, it should be overturned, but nothing is certain with trumpettes on the court.

    scary

  108. 108.

    prostratedragon

    @New Deal democrat:  and if the intel people want to make a criminal referral from their examination? (Not really asking you,  just wondering how on earth this judge thinks things would go.)

  109. 109.

    karen marie

    @dm: Hopefully the Special Master and minions will handle the classified materials with gloves, so they can still be finger-printed.

    I’m sorry, what?

    I’m going to guess that you believe lie detectors are an accurate gauge of a subject’s truthfulness.

     

    See page 3 of the pdf, page 433 of the text.

  110. 110.

    Bill Arnold

    @New Deal democrat:

    it specifically states that the stay is for “criminal investigation” purposes. She specifically exempts the OSDI from the stay.

    Unfortunately, it does not. It says “investigative purposes”, unadorned, quite clearly. It talks about “criminal investigation” elsewhere, but not in the parts that are the order.
    And the ODNI is not tasked the counter intelligence investigations, AFAIK (they may do some). it is a different part of the government:
    Different parts of the governement?

    The FBI’s Counterintelligence Program
    ODNI

  113. 113.

    MisterForkbeard

    @Damien: The part of this that bothers me is:

    1) The judge knowingly and explicitly (she even says so!) overruling precedent and law to give Trump a break “for the appearance of fairness”

    2) That the entire conservative (and MSM) mediasphere will claim Trump is vindicated and the DOJ is over their skis. This is basically what happened with the Mueller Report, too. And it’ll have a similar (but not as bad) effect, where huge parts of the populace will just decide that Trump is innocent.

  114. 114.

    jimmiraybob

    I wonder if Hillary or Obama maintain enough clearances to step in as Special Master. Now, that would be special.

  116. 116.

    Brachiator

    There is a YouTube channel, MeidasTouch, that gives a brief 20 minute analysis of the judge’s decision. It appears to be reasonable, but I am not certain about the host’s legal credentials.

    But some may be interested. He highlighted text from the actual ruling, cited previous cases. But I know that a mere appearance of competence does not always pan out

    I thik that both sides have until September 9 to recommend a special master.

    Let the delay begin.

  117. 117.

    UncleEbeneezer

    It’s of note that judge cannon did NOT enjoin DoJ from continuing criminal investigation into any documents recovered in the 15 boxes they got in May, nor or any of the documents retrieved pursuant to the May subpoena they got in June.

  119. 119.

    Another Scott

    @karen marie: The state of the art may have advanced a little since 1937.  ;-)

    Wiley.com (from 2018):

    There are a wide range of vapour phase processes available for fingermark enhancement. The most widely used of all of the vapour phase processes is superglue, or cyanoacrylate fuming. This chapter discusses the other vapour phase processes which are not widely used because they are either less effective than other techniques or there are health and safety issues associated with their use. It also discusses outline history and theory of cyanoacrylate fuming, vacuum metal deposition, iodine fuming and radioactive sulphur dioxide.

    I don’t know if they would use any of those techniques, or anything else, to try to lift fingerprints from the MaL papers. But one has to assume that anything (like fingerprint oil and sweat) that touches the paper will change it and those changes can be measured and quantified (given enough time and effort). E.g. Burnt 2000 year old scrolls can be “read”.

    Thanks.

    Cheers,
    Scott.

  120. 120.

    karen marie

    @Lacuna Synecdoche:   Trump believes he has the right to keep  hidden from Biden and any future president papers created during his administration.  He “retruthed” last week a claim that the reason for the “raid” is that Biden wanted to see the papers related to Trump’s decision to pull out of the Iran nuclear agreement.

  123. 123.

    New Deal democrat

    @Bill Arnold:
    “Accordingly, it is hereby ordered and adjudged as follows:

    “1….

    “2. The government is temporarily enjoined from further review and use of any of the materials seized from Plaintiff’s residence on August 8, 2022, for criminal investigative purposes pending resolution of the special master’s review process as determined by this Court. The government may continue to review and use the materials used for intelligence classification and national security assessments.”

    Have a nice Labor Day.

  124. 124.

    New Deal democrat

    @prostratedragon: “and if the intel people want to make a criminal referral from their examination?”

    Then that will be another source of lengthy litigation (just as the judge wants).

  126. 126.

    karen marie

    @Another Scott:   I am familiar with modern fingerprint techniques.  I don’t think you read the section I pointed to.  Modern techniques don’t help if there’s nothing there to find.  “Impressions may be lost after a few days.”

    This is trial testimony of a fingerprint analyst for the Boston Police Department in a case tried two months ago:

    A So there’s a lot of different factors affecting whether we can recover fingerprints. So — it’s helpful to think of a fingerprint like a rubber stamp. So if you were to put a rubber stamp on a smooth glass window, you’re more likely to see the details that were in that stamp, versus if you put it, let’s say, on this textured carpet. Those details might be really hard to see because the surface is textured or if the surface was curved or, you know, if that surface got wet or was left in the blazing sun. Basically, the surface itself and what happens to that surface can affect if a print is left behind or, if one is left behind, if it’s then obliterated later on.

    Q And in your experience, how often are latent prints found on firearms or ammunition?
    A So we keep statistics in the lab just for firearms evidence, so it’s just for magazines and firearms themselves. And about 36 percent of the time a fingerprint is recovered off of those items.
    Q And in your experience, how often is the ridge detail sufficient for a latent print that can be examined or compared?
    A So about 15 percent of the total 100 percent of the time a fingerprint is recovered that’s good enough to potentially identify to someone, or what we call of value.

     

    You can’t find what’s been obliterated by handling or time, or was never there in a useful form in the first place.

  127. 127.

    Damien

    @MisterForkbeard: This is, to me, the most pressing problem with Republicans: their total rejection of rule of law, precedent, and stare decisis as concepts that shape the actions of the world we live in. The very notion that an ex-President would have some remaining grasp on the high office would spin the framers of the Constitution so fast in their graves they’d challenge Newtonian physics. And to not only overrule precedent but precedent that had been reaffirmed LAST FUCKING YEAR in the idea of “fairness” is so bonkers I think Judge Cannon needs a CAT scan.

    These people don’t like being bound to the same laws as the rest of us, but by rejecting that binding they unsettle the foundations of peace in this country with every single blatantly corrupt move like this. I genuinely do not understand the concept that law is just a plaything; these are the kind of people who would have dismissed the criminal complaint against Aaron Burr just because he was sitting VP.

    Idiots

  128. 128.

    Another Scott

    I’ve been a little surprised that nycsouthpaw has been so quiet today. Maybe he’s doing a lot of reading. He did post this though:

    Nothing about the MAL search warrant process was special and her reasoning wd lead to appointment of a special master in EVERY criminal case. The only thing special is a former president stealing highly classified docs.

    — Andrew Weissmann 🌻 (@AWeissmann_) September 5, 2022

    It is very disconcerting that such an obviously incorrect ruling, which she never should have gotten involved in in the first place, has us questioning our own lying eyes and the plain meaning of words (“They’re not his documents – they belong to the United States! The law is clear!!1” “He has no executive privilege – it belongs to the office. A/C privilege is not the same as EP!!1”) and wondering whether the 11th Circuit will seriously just close their eyes and go Leeroy Jenkins along with her and expect the rest of us will just sigh and say oh well, waddayagonnado??

    [ Bluto ] Did we give up when the Germans bombed Pearl Harbor??! No! Activist Judges! Activist Judges! Activist Judges!! [ /Bluto ]

    Grr…,
    Scott.
    (“Yeah, it needs some work. But throwing Activist Judges in their faces is so appealing…”)

  129. 129.

    Bill Arnold

    @New Deal democrat:
    Tx for pushing back on my mild rudeness, for which I apologize. I learned that my PDF viewer does not handle line breaks in search strings, ugh.

    It is still not clear that counter intelligence investigation using the materials is not blocked by the order.

  130. 130.

    Another Scott

    @karen marie: We’re talking past each other, I think.

    There’s a difference between being able to detect something and something not being there.  Techniques for detection are improving all the time.  Whether the thing detected is good enough for a positive ID is a valid question, but that’s not what I was addressing.

    ScienceDirect.com:

    • Useful fingermarks detected on documents up to 80 years old by 1,2-indanedione/zinc.

    • Extends current timescale for fingermark detection with amino acid sensitive reagents.

    • Findings have significant implications for applicability in cold case reviews.

    I would assume the federal crime labs are more likely to have advanced fingerprinting techniques in-house (and access to state-of-the-art external techniques) than local PDs.  (Yes, there are too many examples of crime labs making stuff up.)

    Thanks.

    Cheers,
    Scott.

  131. 131.

    Felanius Kootea

    @Another Scott:

    What are the steps that can be taken in the US to penalize and root out corruption within the judiciary? Is there anything anyone can do legally if this judge and others like her simply rule in favor of right wing benefactors when it suits them?

    With Trump having appointed roughly 100 Federalist Society judges, how do people who still believe in the rule of law address attempts to “dismantle the administrative state” through the judiciary?

  132. 132.

    Geminid

    @dm: I don’t know why the FBI wouldn’t have checked the fingerprints on these documents already. Maybe they haven’t. But it seems like they would want to establish who handled them, and had no reason to put this off.

  134. 134.

    Scout211

    @Bill Arnold:It is still not clear that counter intelligence investigation using the materials is not blocked by the order.

    This seems clear to me, but IANAL or part of the intelligence community.

    Here is an easier to read pdf. version

    On page 24 of 24

    The Government may continue to review and use the materials seized for purposes of intelligence classification and national security assessments.

  135. 135.

    Bill Arnold

    @Scout211:

    The Government may continue to review and use the materials seized for purposes of intelligence classification and national security assessments.

    Yes, but that does not, if I understand the language, cover allowing counterintelligence investigation.

  137. 137.

    way2blue

    My *guess* is that Trump’s goal is to slow down the process in hopes that a R Congress will find a way to shut it down entirely.  Or at least drag it out long enough to become moot.

  138. 138.

    Harraman

    @prostratedragon: The offenses are in a league of their own as well, which should trump the delay occasioned by the use of a third party review of all documents. Burden should be on Trump to ID documents of concern and the Judge sort it out. Certainly unequal treatment here. But can see why DOJ just might live with the decision as long as Judge builds a fire under the SM.

  140. 140.

    Elie

     

    It is clear to me that the Trumpites are not going to follow rules of any kind.  What does that mean for trying to get justice or anything else to save our democracy?  I don’t know but we had better start getting our methods for dealing with this.  I have no intention of just giving in to this stuff.  We cannot give up and must just keep looping ropes of justice and due process over and over.  Are there precedents in history for this?  For righteous people to defeat lawlessness when the momentum so favors the lawless?

  141. 141.

    Another Scott

    @Felanius Kootea: IANAL.  I assume that it’s the same as always:

    If a federal judge breaks the law, they risk indictment, trial, conviction, etc.  Some federal judges have been removed that way.

    Judges can be reversed, told to try again, etc., on appeal.

    Judges can be impeached by Congress, tried, and removed.  That’s happened a few times too.

    There are no short-cuts.

    There are still checks and balances, but they take time.  And they depend on the 3 branches keeping their oaths and doing their jobs.  Things get hinky when the courts become overt political actors, when the Congress lets the POTUS do whatever s/he wants, when the POTUS ignores the law.

    That’s why, of course, we have to vote every election as if democracy and the rule of law is on the line – because it is.

    My $0.02.

    Cheers,
    Scott.

  142. 142.

    Another Scott

    @Bill Arnold: IANAL.

    It’s my understanding that she risks getting slapped down hard if she tries to insert herself in a counter-intelligence investigation.  That’s not her place, and she knows it.

    She’s saying, as I understand it, that the 9000+ stolen US Government documents that don’t have security markings cannot be used in a prosecution until the SM looks over them.  She’s not going to block access to the few dozen/hundred (!!!) documents with classification markings that are subject to the CI investigation.

    It’s still a ridiculous situation that she’s decided to wallow in.  But she’s not fighting the serious national security implications of what was found.

    I think she’s trying to find a way to say that sure it’s totally normal for a FPOTUS to take anything he wants cause he’s special, but oopsie, maybe he should have had better bookkeeping and returned the classified stuff sooner.  NARA has it all now, so no harm no foul, and anyway he’s special so we can’t punish him…

    I don’t think that’s going to work, but we’ll see.

    My $0.02.

    Cheers,
    Scott.

  143. 143.

    Another Scott

    via nycsouthpaw:

    When this first happened I wanted someone to tell me the basis for the court’s jurisdiction. I’m still waiting. Im not being snide. I’m willing to be shown that I’m wrong. I just want someone to tell me the exact source of the court’s subject matter jurisdiction.

    — aderson francois 🇭🇹 14th Amendment Baby (@abfrancois) September 5, 2022

    I don’t see a reply that gives a strong answer to that question. Other than, roughly, “she has jurisdiction until she’s told by a higher court that she doesn’t…”

    :-/

    Cheers,
    Scott.

  144. 144.

    Bobby Thomson

    With all due respect to PopeHat, Neal Katyal shredded the judge’s opinion in a few paragraphs

  145. 145.

    Another Scott

    @Bobby Thomson: Thanks for the pointer.

    This seems to be the start of the thread:

    This special master opinion is so bad it’s hard to know where to begin:

    1. She says Biden hasn’t weighed in on whether docs protected by Exec Privilege. Nonsense. The archives letter (which DOJ submitted to the Judge) makes it clear current President thinks none of this …

    — Neal Katyal (@neal_katyal) September 5, 2022

    (via Popehat ;-)

    Cheers,
    Scott.

  146. 146.

    Bill

    The order isn’t as broad as some seem to suggest.  It says no investigative purposes, not no prosecutorial purposes.  So perhaps that includes grand jury.  DOJ can still drive on over, put the guy in handcuffs, drag his sorry butt to jail, charge him by an information with several serious felonies, make him post bail, and if he wants a probable cause hearing he should have one, then let the trial judge sort it out.  If Judge Cannon complains the DOJ can say their “investigation” was done weeks ago.

  147. 147.

    Crimson Pimpernel

    @Bill Arnold:  Demolishing future white collar criminal investigations would probably be a plus for an undetermined number of Federalist Society members and clients.

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