Mar-A-Lago Prosecutors Read Trump (And His Judge) For Filth

Prosecutors in the Mar-a-Lago warrant dispute didn’t come out and call Judge Aileen Cannon an idiot hack last night. But they didn’t not call her an idiot hack either.

The unsubtle diss of the court’s preposterous legal reasoning appeared in a reply in support of the government’s motion for partial stay of the special master order. Having arrogated for herself equitable/anomalous jurisdiction to adjudicate a never-pled Rule 41 criminal motion in a civil case, Judge Cannon then proceeded to order a special master to adjudicate claims of not only attorney-client privilege, but executive privilege as well — despite there being no executive privilege ever asserted, even insofar as an ex-president might ever be able to make such a claim and prevail over a waiver by the incumbent and so thwart a criminal investigation by an executive agency. She also ordered the government to stop using the evidence seized — pursuant to a warrant! which no one has ever challenged! — in its criminal investigation, although she allowed the national security investigation led by the Office of the Director of National Intelligence to continue.

On Friday, prosecutors noticed their appeal and filed a petition to stay the special master order insofar as it pertains to the documents bearing classified markings, arguing that the criminal investigation and the national security inquiry are inextricably linked, and reminding the court that the FBI is itself part of the intelligence community. Trump’s lawyers responded by calling the prosecutors liars and hinting, without actually coming out and saying it, that Trump had possibly declassified the documents secretly, or even declared them personal property, again secretly, and was thus free to stuff them in a suitcase and stash them in his pool locker.

But it would appear that the government has had just about enough of this shit.

“Plaintiff has characterized the government’s criminal investigation as a ‘document storage dispute’ or an ‘overdue library book scenario,'” they huff. “In doing so, Plaintiff has not addressed the potential harms that could result from mishandling classified information or the strict requirements imposed by law for handling such materials.”

“Plaintiff does not actually assert—much less provide any evidence—that any of the seized records bearing classification markings have been declassified,” they add indignantly, going on to remind the court that “Plaintiff has now filed multiple lengthy submissions with the Court that stop short of asserting that he in fact took any of these actions with respect to any of the seized records, including those at issue in the stay motion.”

“In light of the classification markings, official cover sheets, and other indicia of classification attendant to these materials … such possibilities should not be given weight absent Plaintiff’s putting forward competent evidence,” they go on, noting the absence of any evidence or affidavits, and pointing out that “any record bearing classification markings was necessarily created by the government and, therefore, is not Plaintiff’s personal property.”

And not only does Trump have zero proprietary interest in government documents to justify the so-called equitable jurisdiction here, but if the former president has been treating these records as unclassified, that fact is entirely germane to the government’s national security investigation.

“For obvious reasons, the Intelligence Community (“IC”) would have a compelling need to understand which formerly-classified records have now been declassified, why and how they were declassified, and the impact of any such declassification, including on the IC’s protection of its sources and methods and on the classification status of related records or information,” they argue.

But if Donald Trump insists on playing this silly game, and if the court insists on letting him, the government would like to remind all parties that there can be no executive privilege in documents which have been declassified and converted to personal property via magical incantation done behind closed doors in direct contravention of the procedures set out in the Presidential Records Act.

If Plaintiff truly means to suggest that, while President, he chose to categorize records with markings such as “SECRET” and “TOP SECRET” as his personal records for purposes of the PRA, then he cannot assert that the very same records are protected by executive privilege—i.e., that they are “Presidential communications” made in furtherance of the “performance of his official duties.”

As for Judge Cannon, the government makes some similarly pointed observations, such as reminding her of “this Court’s acknowledgement of its ‘limited power in this domain’ involving the exercise of equitable jurisdiction in connection with an ongoing criminal investigation.”

The Court did not—and could not—appoint a special master to exercise roving “supervisory authority” over the government’s ongoing criminal investigation, contra D.E. 84 at 4, or to adjudicate matters ultimately irrelevant to Plaintiff’s potential privilege claims, such as whether Plaintiff might have declassified seized documents that bear classification markings or whether Plaintiff might have designated those documents as his “personal” records for purposes of the PRA.

And, lest Her Honor forget that they’ve already noticed their appeal, prosecutors remind her that an airy gesture in the direction of national security evidence coupled with an order to only investigate its disclosure halfway might meet a rather embarrassing fate in the hands of jurists who aren’t total bloody hacks.

And to the extent the Court’s injunction were to turn on the subjective “purpose” motivating individual government personnel, such an injunction could be subject to serious challenge for failure to “state its terms specifically” and to “describe in reasonable detail . . . the act or acts restrained.” Fed. R. Civ. P. 65(d)(1). In attempting to draw what are ultimately unworkable distinctions, Plaintiff only underscores that the government’s national security and criminal investigative missions are overlapping and mutually reinforcing.

The government has indicated that it will file an appeal to the Eleventh Circuit if Judge Cannon doesn’t issue the stay tomorrow. And if they’re going to appeal, it’s unlikely that they’ll limit their filing to simply contesting the provisions of the special master order which pertain to classified documents.

The gloves are well and truly off now.

Trump v. United States [Docket via Court Listener]
United States v. Sealed Search Warrant [Docket via Court Listener]

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Liz Dye lives in Baltimore where she writes about law and politics.