OPINION: This article may contain commentary which reflects the author's opinion.
The Department of Justice is taking aim at District Court Judge Aileen Cannon again in a new motion to the 11th Circuit Court of Appeals.
On Friday, in an attempt to end delays into its investigation, the Department of Justice said that “expediting this appeal will serve the interests of judicial economy” and bring an end to the Special Master delays, Mediaite reported.
“The motions panel concluded that Plaintiff’s uncontested failure to make a showing as to the first factor set forth in Richey “is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here.” Trump, 2022 WL 4366684, at *7,” it said.
“Although the panel’s determination related specifically to the documents bearing classification markings, its reasoning arguably applies more broadly. If this Court agrees that the district court lacked jurisdiction, further proceedings before the special master and district court would end.
“Alternatively, if this Court upholds the district court’s exercise of jurisdiction but concludes that Plaintiff cannot assert executive privilege against the Executive Branch in these circumstances, as the government maintains, such a ruling would substantially narrow the special master proceedings,” the Department said.
“Absent such resolution by this Court, the special master proceedings could result in prolonged litigation, including through seriatim appeals to the district court from reports and recommendations and other rulings issued by the special master. See D.E. 91 at 6 (parties may contest any “scheduling plans, orders, reports, or recommendations” issued by the special master),” it said.
The Department of Justice argued that crimes like obstruction of justice could be given cover by the delays.
“Finally, an expedited appeal would serve the interests of justice. Based on the district court’s orders thus far, the government is barred from accessing all of the materials except those with classification markings recovered in August pursuant to a lawful search warrant—and it may continue to be barred from doing so until mid-December or later,” the Department of Justice said.
“To be sure, the government sought a partial stay of the district court’s September 5 order only as it pertained to records bearing classification markings because those aspects of the order caused the most serious and immediate harm to the government and the public. And the motions panel agreed that the injunction against government and the public. And the motions panel agreed that the injunction against the government’s review and use of those records for criminal investigative purposes ‘risks imposing real and significant harm on the United States and the public.’ Trump, 2022 WL 4366684, at *11. Even if not to the same degree, such harms persist with respect to the district court’s injunction against the government’s review and use of thousands of remaining documents and other materials that were recovered pursuant to a court-authorized search and may constitute evidence of crimes,” it said.
“The government is thus unable to examine records that were commingled with materials bearing classification markings, including records that may shed light on, for example, how the materials bearing classification markings were transferred to Plaintiff’s residence, how they were stored, and who may have accessed them. The records not marked as classified may also constitute evidence of potential violations of 18 U.S.C. § 1519 (obstruction) and 18 U.S.C. § 2071 (concealment or removal of government records).
“In short, an expedited schedule for briefing and argument may enable the government, if it is successful in this appeal, to more quickly resume its full investigation without restraints on its review and use of evidence seized pursuant to a lawful search warrant,” it said.
It ended by saying that “Counsel for the United States has conferred with Plaintiff’s counsel, Christopher M. Kise, who states that Plaintiff opposes the relief requested in this motion. In sum, the United States respectfully requests that the Court expedite this appeal for the good cause shown in this Motion.”
