Proving that government can act in a hurry when it wants to, yesterday the DOJ promptly appealed Judge Cannon’s order appointing a special master in the Biden Raid case. The appeal was filed in the 11th Circuit Court of Appeals in Atlanta and claims that ANY DELAY in the FBI’s investigation — no matter how short — will cause IRREPARABLE HARM to the entire government of the United States of America. According to the DOJ, it would literally be worse than a million Vietnam wars.
To support its claims, DOJ made two main arguments:
First, DOJ argued that, by definition, all classified documents are government documents. Government documents are the government’s property, not President Trump’s property. Therefore, Trump can’t claim he has any special interest in keeping documents that he doesn’t own. But on the other hand, the government DOES have a legal right to get its own confidential property back, and do whatever it wants with its documents.
Second, DOJ claimed it is absolutely critical that the government gets complete control of its own documents back, RIGHT NOW, so it can keep on investigating, to find out who President Trump might have disclosed the documents to, and whether there might be any more documents out there somewhere. The DOJ seems to be implying that if it can’t complete its investigation before the mid-term elections, then it’ll be a Hindenburg-style national security disaster, just wait and see.
Once again, the briefing provided a lot of helpful background information that cuts right through corporate media talking-head speculation and noise. The DOJ says it seized 11,000+ documents in the raid, but only 100 of them were classified (1%). In other words, they grabbed over ONE HUNDRED TIMES more than they needed to.
That seems to kind of tell the whole story.
In its appeal, DOJ said it is only asking for a limited stay of Judge Cannon’s order, just enough to let it continue investigating the confidential documents, which is meant to seem like a fair compromise or something. They’re arguing, “hey, appeals judges, we only want to keep reviewing about 1% of documents. We’re cool with Judge Cannon’s order on the other 99%, no problem, happy to wait.”
It’s a classic baby-splitting scenario. They’re baiting the hook, offering the court a way to seem wise and fair and non-biased — like King Solomon — and to give both parties a little something. The DOJ hopes the judges will issue an order ending like this: “We agree with Judge Cannon’s reasoning regarding the vast majority of items seized from the Plaintiff, but we cannot agree regarding the very small number of classified items clearly and indisputably identified as the government’s property. Therefore, we hereby STAY the Order, but only as to those seized items that are plainly and obviously government property and are necessary for the government’s continuing national security investigation.”
But as with most of what we can see about the government’s raid so far, DOJ’s argument is profoundly deceptive, maybe even irrational. The whole predicate of the search was to get the classified material; the existence of those 100 documents was the entire argument they used to justify the unprecedented search of the President’s residence. In other words, if the investigation will continue with only the 100 classified documents, then the DOJ’s argument is, at its core, an admission that the 11,000 other items AREN’T NECESSARY FOR THE INVESTIGATION.
Judge Cannon’s order said the special master would prioritize reviewing the classified items first. Although DOJ claimed that any tiny delay would cause “irreparable harm,” it did not offer any compelling evidence for that harm, except to wildly speculate that Trump might have shown the documents to someone, someone like an evil foreign dictator — like Putin! — and somewhere, some undercover agents might need immediate protection. Who knows? After all, without looking at the documents, how can they tell if there’s even a problem?
It’s purely speculative, and the 11th should say no, DOJ, you waited almost a year to raid the President, you can wait a few more days to let the special master take a look first.
What happens next is the 11th Circuit will issue a briefing schedule, setting a deadline for when Trump’s attorneys must respond to the government’s brief. I’ll let you know when I know.
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