A group of judges this week helped ensure that the investigation into former president Donald Trump for spiriting away highly classified documents from the White House would continue unimpaired. In doing so, they helped restore some faith in our court system — and in democracy.
Dearie ordered Trump’s counsel to definitely say whether Trump’s team would claim before a judge that documents were “planted” by the FBI at his Mar-a-Lago resort, as Trump has stated publicly but not in court. Coupled with his previous warning that he was likely to defer to the government if Trump did not make clear whether he declassified any documents, Dearie has systematically blown up Trump’s frivolous lawsuits to stop the investigation — and his public propaganda campaign. His attorneys have to decide if they will go along with Trump’s lies by affixing their names to them in a court filing. I suspect they will not.
Meanwhile, a three-judge panel from the U.S. Court of Appeals for the 11th Circuit, consisting of two judges appointed by Trump and one by Barack Obama, systematically dissected and discarded Cannon’s rulings concerning the classified documents. “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,” the panel held. “We conclude that it has.”
The panel found Cannon lacked equitable jurisdiction. In examining the first prong of the applicable test, the panel wrote, “the district court concluded that Plaintiff did not show that the United States acted in callous disregard of his constitutional rights.”
That should have been the end of it, but the panel did not spare Cannon from finding Trump failed to meet every other prong of the test. The court continued: “Plaintiff has not even attempted to show that he has a need to know the information contained in the classified documents. Nor has he established that the current administration has waived that requirement for these documents.” In other words, the panel effectively said Cannon was acting without any legal or factual basis.
Likewise, “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.” That’s legalese for: What in the world was Cannon thinking?
The panel also found the idea of “irreparable harm” to Trump, which Cannon essentially found on the basis of his simply being a former president, was absent. All citizens face potential damage to their reputations from criminal investigation; their remedy is in dismissal of charges or vindication at trial.
In contrast to Cannon, the 11th Circuit also found that the government would suffer irreparable harm from Cannon’s order barring the Justice Department from continuing to investigate potential crimes, because “its national-security review is inextricably intertwined with its criminal investigation.” Cannon had no basis to disregard that.
If Cannon flipped the legal system on its head, the 11th Circuit turned it right-side up. It reaffirmed the notion that Trump is no different from any potential defendant — and that a court cannot facilitate his antics by making up conflicts of law and fact where there are none. Objective reality matters. The law matters.
Perhaps Trump’s lies and bogus explanations really won’t protect him in a court of law. Maybe he is going to be held accountable for his conduct. If so, these judges will have repaired some of the damage his lawlessness has done to our democracy. For that, we can say, well done.