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September 11, 2022

At this point in time I have no regard for the probity or competence of the Intelligence Community and neither, apparently, does Judge Aileen Cannon, who earlier this week ordered the appointment of a Special Master to review those documents seized in the Mar-a-Lago raid, which it claims are classified. The Department of Justice appears to have been surprised that it has lost credibility and filed a motion seeking a stay on that portion of the order and a Notice of Appeal to the Eleventh Circuit indicating its intention to file an interlocutory appeal.

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I don’t think the trial judge who issued a very well-considered order will grant the stay. I don’t think the Eleventh Circuit will, either. I don’t think the Eleventh Circuit will even grant an interlocutory appeal on this matter. I do think all of these pleadings reveal the weakness of the grounds for a search and seizure of materials at the home Donald J. Trump, the overreach of the warrant, and the expansive search itself. Worse for the DoJ and FBI, I believe their actions amount to a claim that under no circumstances does the judiciary have a right to question anything the Intelligence committee does as long as it makes a claim of “national security.” Such a claim is scary and should be — and I think will be — denied.

Without going into all the fine points of what it means to say a trial court order is an interlocutory order, basically it means that the order is not a final one. In this case, it is merely an order covering discovery matters in a trial. As Seth Barrett Tillman tweeted, ”The government has not been forced to return any materials, and no privilege rulings have been made for which to take an appeal.” He also gives an example of such an interlocutory, unappealable action by a trial court: He notes that J. Messitte refused to decide Trump’s motion to dismiss the Emoluments Clauses case and sat on it for three years until after the election when he dismissed it as moot after Trump lost.

Why is the DoJ so desperate to prevent a Special Master, even one with security clearance, to view those documents the department asserts are classified? (The parties each have offered two candidates for the position, one of Trump’s candidates, in fact, sat on the FISA court. Is he less certain to do this job properly than the National Archivist?) There are several possible explanations for the desperation I can think of — none of which do credit to the attorney general. The first and most common supposition is that the documents which they claim must be kept even from the eyes of the Special Master relate to the FBI and DoJ’s role in fashioning and perpetrating the phony Russian Collusion fairytale. That would be damning indeed, and frankly, I see it as the most likely explanation: It is improper to classify documents simply to prevent embarrassment to persons or agencies. And anyone who does this is subject to sanctions. Obama’s Executive Order 13526 reads in relevant part:

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Sec. 1.7. Classification Prohibitions and Limitations. (a) In no case shall
information be classified, continue to be maintained as classified, or fail
to be declassified in order to:

(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not require protection in the interest of the national security.

Despite leaking staged photos of the fruits of the search, along with claims that it involved “nuclear” information, in the latest pleading it’s revealed that the searchers seized copious amounts of news clippings, some clothing, passports, personal tax records and material clearly covered by attorney-client privilege. In other words, the agents seem to have viewed this is a general warrant to grab everything, something not permitted. The only “nuclear” thing mentioned is some document about the nuclear capacity of a foreign government — hardly the nuclear code which had been bruited about by some media lackeys.

I think the delay rankles and disturbs DoJ as much as the likelihood that a Special Master will find the “classified” information was legally declassified by Trump and had been improperly classified in the first instance to protect those who engaged in this wrongful smear of a political candidate.

This, the second of my suppositions is related to the Hail Mary effort to stay the portion of the order which temporarily enjoins the government (pending completion of the Special Master’s review of further court order) from reviewing and using the seized materials for investigative purposes. The warrant was issued before the grand jury in D.C. even received or reviewed the 15 boxes of documents Trump turned over to the government. This suggests the department was eager to use whatever they could hose up at Mar-a-Lago before a further examination of the legality of their actions could be done — and not coincidentally — in time to affect the midterms.

In the meantime, the department yet again has been engaged in a leak to poison public opinion and any potential jury trial.