The legal community has roundly criticized Judge Cannon’s ruling granting Trump’s motion for a special master. The criticism is as strong as it is universal. But it does give the Justice Department a spectacular opportunity that it wouldn’t have had. The DOJ will now have the opportunity to write a brief that explains why the matter is so serious, a brief that will lay out why criminal charges may be necessary. It gives the DOJ this opportunity well ahead of filing the actual earth-shattering criminal charges. The Justice Department’s prosecutors now get to speak to the country, justify their actions, and prepare the nation for what may be coming down the road.
To start, the entirety of the ruling is bizarre, even the fact that Cannon was the judge making the decision. The case was already filed in front of a U.S. Magistrate. The motion should have been filed in the same court, not with Cannon. But for our purposes, it is the injunctive relief, stopping the investigation, that is unprecedented but also fortuitous (In one way). Former U.S. Solicitor Neil Katyal says he’s “never seen [an order stopping an investigation] happen in [his] career.” Professor Steve Vladeck, who serves as the Charles Alan Wright Chair in Federal Courts at the University of Texas Law School says:
This ruling is preposterous—especially the part where it blocks the government from continuing to use materials already in its possession.
At the very least, that last ruling creates an immediately appealable injunctive-like order, which DOJ can now take to the Eleventh Circuit. https://t.co/b07e1oR5vK
— Steve Vladeck (@steve_vladeck) September 5, 2022
The issue requires an emergency appeal to the 11th Circuit, one of the fastest appeals in history. Time is critical. The FBI must be working furiously to close and cap any security breach caused by the fact that so many files are now compromised. As but one example, the FBI will search each document for fingerprints in an attempt to establish who might have handled the documents, including Trump and any other known actors. Additionally, there must be work happening internationally. Our allies want to know what went missing and who might have what information. The matter is far too important and far too time-sensitive to “sit” while a special master tries to make up the law regarding an “executive privilege” that doesn’t exist.
Thus, the Justice Department must file an appeal to the 11th Circuit, and that appeal will include a brief explaining why this matter is so serious and how many things hinge on the investigation of the security breach. The DOJ gets a chance to set out the dangers posed by this material.
DOJ gets a priceless opportunity to speak to the country about why this is a “huge deal.” The FBI-DOJ’s explanation as to why they must be allowed to go forward immediately will also, by its very nature, describe a situation so serious that no one can say it’s “like Hillary’s emails,” no one can say it’s a “storage problem” (As said by Marco Rubio), nor a matter of “paperwork,” (Jared Kushner), this matter involves a security breach that is fundamental and essential to national security, right now, this minute.
Merrick Garland: The Justice Department will speak through its court filings and its work.”
If the Justice Department decides to charge Trump, it will not hold a press conference explaining the decision-making process, the pros and cons of charging Trump or not charging Trump, nor will it give the country a “heads-up” that criminal charges are coming.
But this emergency appeal to the 11th Circuit gives DOJ an opportunity to “speak” through its memorandum about why the matter is so serious that it may have to put an ex-president on trial. The brief will explain to the 11th Circuit that this matter involves materials critical to the defense of the country. It will include words like “grave threat,” “national security,” “possible spies,” “espionage,” and even “possible sale of information.” In sum, it gives DOJ a priceless opportunity to speak to the appellate court and the nation as to why this investigation involves matters so secret and so serious that people may have been killed, entire programs may be exposed, and satellites revealed. It will be a warning to the country, “this is bad. It’s worse than you know,” which thus serves as a precursor to filing criminal charges.
The Justice Department won’t need a press conference if and when it files criminal charges. It will not need to explain why the matter is so serious. It will not need to justify why it had to act when it did. All of that critical information will be set out in a brief to the 11th Circuit. Remember the impact that DOJ’s brief had on the issue as to whether to release the affidavit with redactions, the brief with the picture? It was a “game changer” in that the country better appreciated the seriousness of the investigation. Now imagine this brief, one far more focused, one specifically designed to relay the seriousness of Trump’s behavior, the ripple effect to other programs, spies, etc., and that the implications of this investigation spread throughout the globe.
@JasonMiciak believes a day without learning is a day not lived. He is a political writer, features writer, author, and attorney. He is a Canadian-born dual citizen who spent his teen and college years in the Pacific Northwest and has since lived in seven states. He now enjoys life as a single dad of a young girl, writing from the beaches of the Gulf Coast. He loves crafting his flower pots, cooking, and currently studies philosophy of science, religion, and non-math principles behind quantum mechanics and cosmology. Please feel free to contact for speaking engagements or any concerns.