Nice Try Donny, But No Dice

[ Posted Thursday, September 22nd, 2022 – 14:59 UTC ]

All of Donald Trump's legal defenses (if you can even call them that) for having hundreds of stolen classified U.S. government files in his possession just crashed into the brick-wall reality of a panel of three actual law-abiding appellate judges (as opposed to whatever you want to call Trump's pet district judge who issued the ruling on the special master that Trump was seeking). It wasn't pretty, to put it mildly. The three judges on the 11th Circuit Court of Appeals -- two of them nominated by Trump himself -- all unanimously agreed that the lower court's ruling was hogwash, as well as all the various legal excuses he's been deploying being complete bunk too, just for good measure. It was truly an epic legal smackdown.

The three judges took 28 pages (plus cover page) to eviscerate the initial ruling on the special master as well as Trump's public defense of: "I magically declassified them all just by thinking about it, so there!" The appellate court properly responded (paraphrased a bit): "Who cares? That's not even what's at issue here!"

Politico has the full document, but if you don't have time to read all 28 pages, I have pulled out all the excerpts which are the most relevant. [Note: the excerpts provided here have been edited to remove technical legal citations which break up the flow of the text, but no other edits have been made. All emphasis is in the original as well.] The first 14 pages review the reason why the appellate court is involved and the timeline of what has already taken place, from Trump leaving office to the search warrant being executed and the ruling he sought in court afterwards. The district court's judge had ruled that a special master should be appointed and also that the F.B.I. needed to halt its use of any of the documents seized -- especially the 100-plus classified documents -- in their criminal investigation. The judge did try to allow the government to complete its national security assessment of the 100 documents, but this would likely have been impossible.

The government could have challenged the entire ruling in their appeal to the 11th Circuit. They didn't. They instead only challenged the ruling on the 100 classified documents, laying out why it was impossible to allow the national security assessment to continue without also allowing the investigation into why those documents were in Trump's possession to also continue. They challenged all of Trump's vague legal theories as to why "classified" versus "declassified" would even mean anything, and they challenged Trump's right to possess any of the government documents at all.

The appellate court agreed with the government across the board, and even signalled that they probably should have challenged the whole ruling, since they likely would have tossed out the whole thing (including the appointment of a special master), due to faulty legal reasoning by both Trump's lawyers and his pet judge. Here was their ruling, from the first (overview) page of the decision:

We decide only the narrow question presented: whether the United States has established that it is entitled to a stay of the district court's order, to the extent that it (1) requires the government to submit for the special master's review the documents with classification markings and (2) enjoins the United States from using that subset of documents in a criminal investigation. We conclude that it has.

The next four pages review the history of the government prying all the documents Trump absconded with from his tiny hands. The eight pages after that detail the case the district court ruled on in detail -- laying out Trump's legal arguments, the government's legal arguments, and the ruling of the judge.

There is one important legal test detailed in this section, that stems from the case Richey v. Smith. This case dealt with a search and a subsequent demand by the target of the search that the seized property be returned, due to the search being illegal or improper in some way.

Finally, starting on page 15, the appellate court begins to address the request for a stay (of the order to the F.B.I. to not look at the 100 pages of classified documents), and lays out the four factors to be considered, which were outlined in a case known as Nken v. Holder:

When deciding whether to grant a stay pending appeal, we evaluate four factors: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." After considering the four factors here, we conclude that the United States is entitled to a stay.

In answering the first of these enumerated factors, the decision lays out the Richey tests which any federal judge is supposed to apply:

Whether a court should exercise its equitable jurisdiction in this context "is subject to the sound discretion of the district court." But that discretion is not boundless. The factors a court should consider when deciding whether to exercise jurisdiction include (1) whether the government "displayed a callous disregard for . . . constitutional rights" in seizing the items at issue; (2) "whether the plaintiff has an individual interest in and need for the material whose return he seeks;" (3) "whether the plaintiff would be irreparably injured by denial of the return of the property;" and (4) "whether the plaintiff has an adequate remedy at law for the redress of his grievance." We consider each in turn.

Their answer to the very first of these tests torpedoes the district court's ruling entirely, and then at the end tacks on (in my paraphrased snarky words): "since you were so incredibly and so broadly wrong, we're going to show you each and every way your ruling was wrong, as a judicial exercise any first-year law student would have understood":

[T]he district court concluded that Plaintiff did not show that the United States acted in callous disregard of his constitutional rights. No party contests the district court's finding in this regard. The absence of this "indispensab[le]" factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here. But for the sake of completeness, we consider the remaining factors.

They then move on to the other three Richey tests:

The second Richey factor considers "whether the plaintiff has an individual interest in and need for the material whose return he seeks." The district court concluded that Plaintiff had an interest in some of the seized material because it included "medical documents, correspondence related to taxes, and accounting information." But none of those concerns apply to the roughly one-hundred classified documents at issue here. And the district court made no mention in its analysis of this factor as to why or how Plaintiff might have an individual interest in or need for the classified documents.

For our part, we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings.

The ruling then took the time to school the judge on what classified documents actually are:

They are "owned by, produced by or for, or . . . under the control of the United States Government." . And they include information the "unauthorized disclosure [of which] could reasonably be expected to cause identifiable or describable damage to the national security." For this reason, a person may have access to classified information only if, among other requirements, he "has a need-to-know the information." This requirement pertains equally to former Presidents, unless the current administration, in its discretion, chooses to waive that requirement.

Trump "has not even attempted to show that he has a need to know the information contained in the classified documents," nor has he shown that Joe Biden has waived the requirement in any way. "And even if he had, that, in and of itself, would not explain why Plaintiff has an individual interest in the classified documents."

Then comes the key paragraph in the entire ruling, the one that eviscerates Trump's "in the court of public opinion" defense:

Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents. In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal. So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.

Got that? "A red herring." Totally irrelevant to the entire legal case. The classification status -- whatever it may be -- does not change the basic underlying facts.

The third Richey test is whether Trump would be "irreparably injured by denial of the return of the property." The district court ruled that he might be, which the appellate court strongly disagreed with. They point out that Trump hasn't even bothered to assert attorney-client privilege (much less executive privilege) over any of the classified documents.

This section finishes with a smackdown of yet another of the judge's inane arguments:

The remaining potential injury identified by the district court is "the threat of future prosecution and the serious, often indelible stigma associated therewith." No doubt the threat of prosecution can weigh heavily on the mind of someone under investigation. But without diminishing the seriousness of that burden, "if the mere threat of prosecution were allowed to constitute irreparable harm . . . every potential defendant could point to the same harm and invoke the equitable powers of the district court."

In other words: "Nice try, but no dice." Trump cannot be given special rights just because he is a former president, because everyone is equal before the law. And "because they might prosecute me if they see the documents" is just laughable as legal reasoning.

The final Richey test -- whether Trump had legal means of seeking the return of his property or not -- was completely moot since Team Trump hasn't even bothered to file a claim for the government to return the property yet. The section wraps up with:

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.

This all dealt with only the first of the issues in the first list in the document (the "Nken factors"). The appellate judges then move on to the second: "whether the applicant will be irreparably injured absent a stay." They conclude that the government would be irreparably injured.

Their reasoning boils down to (paraphrased, of course): "What part of classified documents do you not understand?" They fully agree with the government's argument that it would be impossible to separate the "classification review and/or intelligence assessment" from the "further review and use... for criminal investigative purposes." They lay out why this is all so important:

According to the United States, the criminal investigation will seek to determine, among other things, the identity of anyone who accessed the classified materials; whether any particular classified materials were compromised; and whether additional classified materials may be unaccounted for. As Plaintiff acknowledges, backwards-looking inquiries are the domain of the criminal investigators. It would be difficult, if not impossible, for the United States to answer these critical questions if its criminal investigators are not permitted to review the seized classified materials.

The appellate court quickly dismissed the next Nken factor -- whether Trump would be "substantially injure[d]" by issuing a stay. They give three reasons, but the first is really the meat of it:

First, as we have explained, Plaintiff does not have a possessory interest in the documents at issue, so he does not suffer a cognizable harm if the United States reviews documents he neither owns nor has a personal interest in.

These documents are not Trump's personal property. He has made no legal claim to them at all. Period. He has offered no reason why he should have them. They are the government's property.

The final Nken factor deals with the public's interest. This one was easy to dispose of as well:

It is self-evident that the public has a strong interest in ensuring that the storage of the classified records did not result in "exceptionally grave damage to the national security." Ascertaining that necessarily involves reviewing the documents, determining who had access to them and when, and deciding which (if any) sources or methods are compromised. For these reasons, we conclude that the public interest favors a stay.

The ruling ends with a terse conclusion:

For the reasons we have explained, we GRANT the stay pending appeal. The district court order is STAYED to the extent it enjoins the government's use of the classified documents and requires the government to submit the classified documents to the special master for review.

In other words (mine, not the court's): "Go peddle your nonsense elsewhere, Donny, because in an honest court of law before actual judges who know what they are doing and use logical legal reasoning, none of it holds even the tiniest drop of water."

The ruling, as I said, is a sweeping denunciation of both Trump's legal arguments (such as they are) as well as the district court's flawed reasoning and ruling. Trump initially wanted to get a special master appointed for no other reason than to gum up the works. He is the master of delay, when it comes to the courts.

However, the special master that Trump's team hand-picked is also on the side of logical legal reasoning, and in a hearing that happened Wednesday indicated that as far as he was concerned he didn't even need to review the 100-plus classified documents. There was no need, since they were so clearly the property of the U.S. government and Trump had no conceivable right to possess them. He also indicated he would be performing his special master review in record time, meaning that there won't be much delay at all in the government moving forward with its investigation.

All around, when you add in the New York civil suit announced in the midst of all this, Donald Trump is having a pretty bad week in the legal world. Which is entirely appropriate and just.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


6 Comments on “Nice Try Donny, But No Dice”

  1. [1] 
    BashiBazouk wrote:

    It seemed like at the time Trump was nominating judges, most came from lists drawn up by McConnell. As much as Trump would like to think they all owe fealty to him, I think most are really McConnell judges or just conservative judges that are independent and only owe fealty to the law with a conservative perspective...

  2. [2] 
    Kick wrote:


    These documents are not Trump's personal property. He has made no legal claim to them at all. Period. He has offered no reason why he should have them. They are the government's property.

    Therein lies the irrefutable fact for which Trump has zero defense: The documents in question (even the ones not classified) are the property of the United States government with statutes that govern their handling. Federal employees are allowed to take personal notes and retain them so that if Trump had some documents taken that were wholly his own notes (and not just his handwritten notes made on government documents), he would have a claim that a document like that was his property, e.g., example being the contemporaneous personal notes of James Comey that he would memorialize after his one-on-one meetings with Trump. As we've discussed before in this forum, federal employees/civil servants are allowed to make personal notations that are wholly their own property...

    ... and said notes are absolutely not considered government property. Bill Clinton made taped notes that he kept in his sock drawer that were legally deemed his personal property and not the property of the government. Interestingly, Trump's lawyers keep claiming the fact that Clinton's notes were deemed personal property that this somehow proves that the classified documents Trump took belong to Trump: Hysterical!

    U.S. government officials not only had a right to retrieve the stolen property after Trump returned some but not all of it, they have an obligation to do so. Trump was given ample time (over 18 months) by the United States to return the property (which he returned a shit-ton of them) and then swore through a lawyer that he had no more, knowing fully well that he retained more. Some of them were located in his desk next to his multiple passports, so the "I had no knowledge" defense is out the window too.

    I could point out that there's obviously a process that must be followed to declassify documents, but the group that reads this forum isn't as ignorant as Trump obviously believes his MAGA rubes are. The "the FBI was looking for Hillary's emails at my residence" defense is hysterical too. No one here is as ignorant as Trump apparently believes his followers are; he might as well have gone on Hannity's show and proclaimed: "I know you're idiots who will believe the dumbest shit I can invent." The declassification obfuscation is a red herring anyway, as declassifying documents does not in any way magically confer ownership rights upon them, and it's laughable that anyone would believe it would/could. He really believes his base is stupid, and he's right about a whole bunch of them, as we all witnessed on 1/6.

    The victim routine of Trump is effing hysterical because Trump chose to take the documents, chose not to return the documents, chose to lie about returning them via legal surrogate (bad lawyer now needs a good lawyer), and chose to make public that the FBI came to retrieve government property... for which they have an obligation to do.

    So, to recap:

    Trump has zero defense for taking any of the documents regardless of classification status, and the laws governing the retention of the highly classified/need-to-know-basis documents carry stiff penalties. At this point, he's admitted to taking the documents and has lied via written instrument that he returned all of them; there is no legal defense.

  3. [3] 
    Mezzomamma wrote:

    Isn't it the case that personal items have already been returned to Trump, or at least some of them? It will be interesting to see what proportion of the non-classified documents Judge Dearie rules should be excluded from the investigation. I'm guessing it will be rather small.

  4. [4] 
    MtnCaddy wrote:


    What personal stuff was mixed in with all the government stuff and whether or not it has been returned is irrelevant except to point to Trump as clearly guilty.

    Does anyone here in Weigantia have any remaining doubt that DoJ has to indict Trump?

    Oh, and it seems Impeachment is the ticket in rewarding Comrade Judge Aileen Cannon, if anyone else is curious.

  5. [5] 
    Mezzomamma wrote:

    Caddy, I'm not querying guilt. It seems certain that the whole 'special master' thing was intended as a delaying stunt and 'poor me' publicity stunt, and that the stunt has backfired. There may well be nothing to which attorney-client privilege applies, and nothing which shouldn't be used in the investigation. I strongly suspect that if Judge Dearie in fact examines the rest of the documents and items, he will have some strong words to say about wasting his time. I haven't heard whether he will continue to examine items which don't have classified markings, but I think the latest court ruling allows that to go ahead.

    If Trump mixed personal documents with those to which he had no right, it is evidence of gross negligence in handling state documents at the very least. And it rather removes the 'poor me' complaint about going through personal items.

  6. [6] 
    Elizabeth Miller wrote:

    This all seems a lot like fiddling while Rome burns, or something.

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