In yesterday’s ruling — overturning Judge Eileen Cannon’s order regarding nearly 100 classified documents seized from former President Donald Trump’s Mar-a-Lago residence — the 11th Circuit didn’t just overrule Judge Cannon, it went out of its way. Detailing the many ways in which Judge Cannon fundamentally misinterpreted the law.
In my more than 25 years of practice as a criminal and civil litigator (including three years as an Assistant US Attorney), I do not believe I have read an appellate decision that was more dismissive than the lower court’s. The 11th Circuit sent a clear message to Judge Cannon and Trump: Stop doing it.
Let’s take one by one.
1. The 11th Circuit (in footnote 4 of its ruling) expressly poured cold water on the notion that the FBI raid was designed solely to harass Trump:
The Supreme Court has recognized an exception to this general rule—where “threats to enforce the law against appellants are not made in anticipation of a valid conviction, but are part of a plan to arrest, seize, and threaten prosecution. Statutes to harass appellants.” Plaintiff has made no such allegation here, nor do we see any evidence in the record to support one.
2. The 11th Circuit overruled Judge Cannon’s finding that the prospect of facing criminal prosecution was a harm from which Trump deserved protection:
Second, we find motivated plaintiff’s insistence that he would be harmed by a criminal investigation. “It is a painful obligation of citizenship to bear the inconvenience and expense of prosecution for a crime committed even by an innocent person.” Cobbledick v. United States, 309 US 323, 325 (1940).
“In my over 25 years of practice…I do not believe I have read an appellate decision that was more dismissive than the lower court.“
3. The 11th Circuit literally held that none of the relevant factors supported Trump granting his injunction:
In short, none of the Ritchie factors favors the exercise of equitable jurisdiction in this case. Consequently, the United States is substantially more likely to succeed in showing that the district court abused its discretion in exercising jurisdiction over plaintiff’s motion as it relates to classified documents.
4. The 11th Circuit also struck down Judge Cannon’s attempt to split the child on the grounds that the intelligence community could continue a national security review of 100 classified documents, but the FBI could do no criminal work with those documents:
This difference is impossible. medium [Assistant Director of the Counterintelligence Division of the FBI] Kohler’s declaration, the United States has adequately explained how and why its national-security review is inextricably linked to its criminal investigation. When matters of national security are involved, we must “give considerable weight to an agency’s affidavit.”
5. The 11th Circuit also affirmed the Justice Department’s reasoning that allowing the special master—or Trump’s defense team—to review 100 documents with classified markings would be an “irreparable harm” to the United States.
The United States also argues that allowing the special master and plaintiffs’ counsel to examine the classified records would individually cause irreparable harm. We agreed. The Supreme Court has recognized that “for reasons so obvious as to call for detailed discussion, the protection of classified information must be committed to broad discretion on the part of the responsible agency, and must include broad discretion in determining who may have access to it.” Consequently, courts should only order review of such materials in the most extraordinary circumstances. The record does not permit the conclusion that this is such a situation.
6. Finally, the 11th Circuit essentially held that the DOJ had already satisfied the most important element of a subpoena under the Espionage Act (18 USC section 793(d).
Here is what section 793(d) says:
“Whoever, is legally in possession [a document] Information relating to national defense that the possessor had reason to believe could be used to the injury of the United States or to the advantage of a foreign nation…willfully retains and fails to provide it to an officer or employee upon demand. The United States is entitled to it.” Violates the Espionage Act and “Imprisonment not exceeding ten years” Deliberately reserved for each document.
Yesterday, the 11th Circuit held:
The documents at issue contain information “the unauthorized disclosure of which could reasonably be expected to cause exceptionally serious harm to national security.”
The 11th Circuit almost certainly chose that parallel language to deliver a message to Judge Cannon and Trump: The former president has no legal defense to charges of violating the Espionage Act. If he is accused, the charge will not be dismissed. If he is found guilty, will not be convicted.
In short, unless the documents were properly identified as classified in the first place, Trump is confused.
In summary, my point about the 11th Circuit’s response to Judge Cannon’s order is best captured by Vincent LaGuardia in his opening statement in the 1992 film Gambini. My cousin Vinny:
“Everything that guy said was bullshit.”