Legal observers have been awaiting the Justice Department’s response to Judge Aileen Cannon’s recent ruling on the Special Master.
The part of the order that sent minor shockwaves through the legal system was where she had also somehow found it appropriate and within her power to issue a stay over the Department’s criminal investigation stemming from documents seized from Mar-a-Lago during the search conducted on August 8, 2022.
As many legal scholars had noted at the time, that was an incredible overreach and the order looked vulnerable on appeal, even before the highly conservative 11th Circuit.
Now we have our answer in two actions by the Justice Department on Thursday.
First, they filed their expected notice of appeal, without going into any detail as to the scope of review or grounds they intend to advance. Second, and more interestingly, the Department filed a motion before Judge Cannon again asking her to stay her order as it relates to the ongoing criminal investigation.
The motion in effect asks for the judge to “stay her stay”—meaning keep the status quo before her ruling in place while the matter is appealed. If she agrees, the criminal investigation can proceed unfettered.
What’s the standard for whether the motion for stay should be granted?
A motion for stay of an order pending appeal in this matter generally involves four considerations:
- Whether the Department is likely to prevail on appeal;
- Whether the Department will suffer irreparable harm without it;
- Whether Trump will suffer irreparable harm if it’s granted; and
- Whether a stay is in the best interest of the public.
I like to think of the first criteria as its own bucket and the rest in a second bucket that more or less comprises a balancing of interests.
In the first bucket, most legal experts would agree that ultimately a higher court (whether the 11th Circuit or SCOTUS) is likely to side with the Department here. Trump has no legal right to possess any presidential documents, let alone top secret documents, let alone to have them returned to him.
All presidential documents are surrendered to the National Archives and Records Administration (NARA) at the end of a President's term in office.
Whatever claim of executive privilege there may be—and really, it’s primarily the Biden Administration that can exercise this, not Trump—can be overcome where the government demonstrates a specific need, which is pretty easy to do in a criminal investigation about our most highly sensitive intelligence.
After all, the documents themselves are the very subject of the investigation, and keeping the FBI from using them is like not letting the police dust for prints on the items that a thief stole.
In the second bucket, looking at all the interests involved, it’s easy to see why a stay of her order is warranted. What the judge failed to understand is clear from how she tried to parse her initial order by permitting a security review by the Office of the Director of National Intelligence to proceed while halting the FBI from continuing with its criminal investigation.
As the Department patiently explained to Judge Cannon, the FBI, as the key domestic intelligence agency, plays a key role in any national security review. Separating the FBI from the review makes zero sense because it would be nearly impossible for one to proceed without the other violating her order.
FBI counterintelligence agent Peter Strzok made a good case on this earlier, pointing out that the “seized material provides reasonable inference there still may be classified info in the wild—and you can't effectively investigate without the docs.”
The seized documents are critical to any national security assessment of the risk posed by the mishandling of the documents—yet now because of Judge Cannon’s bizarre order, the FBI is enjoined from investigating further, even to find more missing documents.
Plus, Trump is really no worse off from having the investigation proceed, since a review has already taken place and there’s no way he’s getting back any top secret documents relating to, oh say, the nuclear weapons capabilities of another country, which purportedly were among the documents seized.
In short, it’s hard to see how Trump is harmed in any way by keeping the status quo ante, while it’s pretty easy to see how the government and the public at large require the investigation to continue—particularly since authorities need to figure out how badly those top secret documents were compromised and what else might be out there.
That process shouldn’t be hamstrung by an order that keeps the FBI from participating fully in the national security review or the tracking down of missing documents.
But will this court listen?
This move by the Department appears an effort to give the court an off-ramp to back out of the worst effects of a badly considered opinion. She’s already made her loyalty clear, if that was her intent, and won the praise of the MAGA wing of the GOP.
Staying her order pending appeal would be a mere procedural step that would allow her to gracefully concede that one portion of her opinion had overstepped.
Moreover, she is facing the real possibility that if she refuses to grant the stay, the Department can jump over her and go straight to the 11th Circuit to ask for one. Indeed, as legal analyst Joyce Vance noted, they have indicated they would do so on September 15 if she doesn’t order a stay on her own.
In short, if she doesn’t want the embarrassment of being overruled on this, she can take the opportunity to stay it herself. The Department hasn’t given up anything but a few days time to bring this motion.
The judge is paying attention: She asked for Trump’s attorneys to file their opposition to the motion by Monday and for the parties to consider the question in their responses they have due on Friday on the Special Master appointment.