A Deeply Fractured US

[brihard]

Trump Asks Supreme Court to Intervene in Review of Mar-a-Lago Records

I’m getting my popcorn…

I haven’t been bothering to post updates, but essentially DOJ asked the 11th circuit to stay the part of Judge Cannon’s order that prevented investigators from using the classified documents for investigative purposes. The 11th very quickly agreed with DOJ and stayed that part of her order, which she then modified to remove. The 11th Circuit opinion was, to put it nicely, not kind to Judge Cannon’s legal reasoning in granting the stay in the first place.

DOJ has since appealed Judge Cannon’s special master order in its entirety, and is asking for an expedited hearing through the 11th circuit court- their argument is essentially that she had no business ordering it in the first place. The same legal reasoning that informed the 11th Circuit’s partial stay of her order should likely also prevail on appeal. Legally, it appears she was basically making shit up in granting herself authority, in the case at bar, to appoint a special master.

Notably, eight weeks after the search, Trump’s lawyers have still refused to assert in any court filing that any of the classified material was declassified. They have refused to assert in any court filing what he has alleged on social media, namely that the FBI planted documents. Trump has still refused to say why he retained over a hundred classified documents and thousands of government records that were not legally his to possess.

So two appeals are happening right now. The Department of Justice is appealing the district court special master appointment. That appeal is before the 11th Circuit Court of Appeals, who so far have sided with DOJ in ordering a stay. The new appeal, by Trump, to the Supreme Court is to vacate that stay. But even if he wins, the lower court judge already amended her order anyway.

SCOTUS has given DOJ until next Tuesday to rely to this application motion. So, meanwhile, the use of the classified documents in the criminal investigation continues unhindered.

It’s a silly, interwoven legal mess that has at its core the effort by Trump to delay and obstruct a criminal investigation. None of the ongoing matters ultimately speak to the actual criminal offences alleged, and none should accomplish anything greater than delaying use of evidence by DOJ. None of the matters currently being considered have the power to quash the criminal investigation, nor are they challenging the actual validity of the Mar-a-Lago search warrant.

 

[dimsum]

I haven’t been bothering to post updates, but essentially DOJ asked the 11th circuit to stay the part of Judge Cannon’s order that prevented investigators from using the classified documents for investigative purposes. The 11th very quickly agreed with DOJ and stayed that part of her order, which she then modified to remove. The 11th Circuit opinion was, to put it nicely, not kind to Judge Cannon’s legal reasoning in granting the stay in the first place.

DOJ has since appealed Judge Cannon’s special master order in its entirety, and is asking for an expedited hearing through the 11th circuit court- their argument is essentially that she had no business ordering it in the first place. The same legal reasoning that informed the 11th Circuit’s partial stay of her order should likely also prevail on appeal. Legally, it appears she was basically making shit up in granting herself authority, in the case at bar, to appoint a special master.

Notably, eight weeks after the search, Trump’s lawyers have still refused to assert in any court filing that any of the classified material was declassified. They have refused to assert in any court filing what he has alleged on social media, namely that the FBI planted documents. Trump has still refused to say why he retained over a hundred classified documents and thousands of government records that were not legally his to possess.

So two appeals are happening right now. The Department of Justice is appealing the district court special master appointment. That appeal is before the 11th Circuit Court of Appeals, who so far have sided with DOJ in ordering a stay. The new appeal, by Trump, to the Supreme Court is to vacate that stay. But even if he wins, the lower court judge already amended her order anyway.

SCOTUS has given DOJ until next Tuesday to rely to this application motion. So, meanwhile, the use of the classified documents in the criminal investigation continues unhindered.

It’s a silly, interwoven legal mess that has at its core the effort by Trump to delay and obstruct a criminal investigation. None of the ongoing matters ultimately speak to the actual criminal offences alleged, and none should accomplish anything greater than delaying use of evidence by DOJ. None of the matters currently being considered have the power to quash the criminal investigation, nor are they challenging the actual validity of the Mar-a-Lago search warrant

After reading:

 

[brihard]

Amendment to my last- Trump’s not appealing the entirety of the 11th circuit’s stay; he’s appealing the pay of the stay that prevents the Special Master from reviewing the classified documents, but, apparently, is NOT appealing the part of the stay that allows DOJ to continue using them for investigation. But again, after the 11th Circuit stay, the judge amended the Special Master order itself. Though she could easily amend it again… Anyway, it’s a bit of a schmozzle.

The legally learned people in the states whose commentary I’m reading do not seem to think this poses much of a threat to DOJ’s work or investigation, even if successful, which they gauge unlikely.

 

[Mick]

Thanks, Brihard, for these succinct updates. Very informative!

 

[lenaitch]

Great review. Thanks.

DOJ has since appealed Judge Cannon’s special master order in its entirety, and is asking for an expedited hearing through the 11th circuit court- their argument is essentially that she had no business ordering it in the first place. The same legal reasoning that informed the 11th Circuit’s partial stay of her order should likely also prevail on appeal. Legally, it appears she was basically making shit up in granting herself authority, in the case at bar, to appoint a special master.

I was curious about that part (but seemingly not enough to research) as I had never heard of such a thing before. Granted, I'm not familiar with US jurisprudence but, generally, a court is limited by either precedence or legislation in how it exercises its authority, and not just say 'let's have Bob look at it'.

 

[brihard]

Great review. Thanks.



I was curious about that part (but seemingly not enough to research) as I had never heard of such a thing before. Granted, I'm not familiar with US jurisprudence but, generally, a court is limited by either precedence or legislation in how it exercises its authority, and not just say 'let's have Bob look at it'.

Right, but like most limits based on legislation or jurisprudence, it may take a level or two of appeal to get there.

The ‘Special Master’, appointed by the district court judge in Florida, seems to fill a roll not dissimilar from what we would call an Amicus in certain rate court proceedings- a neutral third party lawyer who talks to the judge and crown and defence to help sort out particularly thorny issues, in my limited experience, around matters like assertions of privilege, and the black boxes on documents that result.

In this case, the Special Master is empowered basically to review the 11,000 odd government documents that were at Mar-a-Lago, and to determine if any of them are subject to executive privilege, attorney client privilege, etc. the specific scope of what precisely he is supposed to determine is, itself, still a subject of contention between DOJ and team Trump.

Like I said, a big schmozzle, with civil litigation ongoing both at district and circuit court of appeal level, against a backdrop of a criminal investigation with a grand jury empaneled. Very possible the 11th district will hear the appeal, say in effect that the whole civil side of this shouldn’t be happening, and collapse the bulk of the matter back to the court handling the pre-indictment criminal proceedings where it belongs.

 

[FJAG]

The ‘Special Master’, appointed by the district court judge in Florida, seems to fill a roll not dissimilar from what we would call an Amicus in certain rate court proceedings

There's a bit of a difference in Canada between a Master and an Amicus.

In Manitoba, for example, there are several "Masters" in the Court of King's Bench who are all lawyers and government appointed judicial officers. Masters have a certain set of limited jurisdictional issues that are required to go before them for determination. Valuation of marital property in family proceedings is one such issue. In addition a judge can refer certain matters to a Master for hearing and decision. In the Federal courts the title of such officers is Prothonotary. Masters have no stake in the case and but make judicial decisions based on evidence presented to them. Masters are not s 96 judges so they do not have inherent jurisdiction, but are limited to the powers that the legislation or judge gives them.

Amici on the other hand generally have an interest in the case. This can range from individuals or organizations that are not parties to a litigation but have an interest in its outcome and who request to join a case as intervenors. The extent of their involvement is decided by the presiding judge. Amici may also be appointments made by a judge in certain cases such as where a party is unrepresented and ought to have his rights protected and properly argued. In those cases the amicus makes submissions putting forward a specific position rather than acting in a judicial capacity as a hearing officer.

 

[brihard]

There's a bit of a difference in Canada between a Master and an Amicus.

In Manitoba, for example, there are several "Masters" in the Court of King's Bench who are all lawyers and government appointed judicial officers. Masters have a certain set of limited jurisdictional issues that are required to go before them for determination. Valuation of marital property in family proceedings is one such issue. In addition a judge can refer certain matters to a Master for hearing and decision. In the Federal courts the title of such officers is Prothonotary. Masters have no stake in the case and but make judicial decisions based on evidence presented to them. Masters are not s 96 judges so they do not have inherent jurisdiction, but are limited to the powers that the legislation or judge gives them.

Amici on the other hand generally have an interest in the case. This can range from individuals or organizations that are not parties to a litigation but have an interest in its outcome and who request to join a case as intervenors. The extent of their involvement is decided by the presiding judge. Amici may also be appointments made by a judge in certain cases such as where a party is unrepresented and ought to have his rights protected and properly argued. In those cases the amicus makes submissions putting forward a specific position rather than acting in a judicial capacity as a hearing officer.

Wrong Amicus. Obviously you’re right about Amici in the context of briefs on an issue before the court, and also in the context of helping, for instance, someone self represented. I’m referring to an Amicus in the context of a third party lawyer who helps out with things like privilege discussions and hearings under sections in 37 and 38 of the Canada Evidence Act. This I can speak to with confidence; one of the files I’m engaged on as file coordinator has an amicus involved as go-between with crown, defence, and the judge, and we’re working through s.37 matters right now. That said, Amici in this context are uncommon and I don’t know if you’ve ever personally dealt with a criminal file that had that.

 

[FJAG]

Wrong Amicus. Obviously you’re right about Amici in the context of briefs on an issue before the court, and also in the context of helping, for instance, someone self represented. I’m referring to an Amicus in the context of a third party lawyer who helps out with things like privilege discussions and hearings under sections in 37 and 38 of the Canada Evidence Act. This I can speak to with confidence; one of the files I’m engaged on as file coordinator has an amicus involved as go-between with crown, defence, and the judge, and we’re working through s.37 matters right now. That said, Amici in this context are uncommon and I don’t know if you’ve ever personally dealt with a criminal file that had that.

Nope. I haven't.

I've routinely dealt with many, many Master's hearings including dozens of reviews of discovery documents for privileged communications or relevance/admissibility to the case which is basically what the Trump shemozzle is all about.

Our firm had a few cases respecting "incompetent" parties (ie young children and individuals under a mental handicap) where the court appointed a lawyer to provide independent advice and representation to the party. Manitoba generally does not use the term "amicus" (nor does Ontario) as much as terms having the same connotation e.g. "litigation guardian" "committee" "intervenor" which cover the concept. The "amicus curiae/friend of the court" provision comes specifically under Manitoba KBR 13.02 and Ontario Courts of Justice Rules 13.03(2)

13.02 Any person may, with leave of the court or at the invitation of the court and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

That, however, is quite different from the Master's jurisdiction to rule on evidence. The CEA s 37 application that you refer to is very much in the nature of the provisions of Rule 30 of both the MB KB and ON CofJ respecting the discovery of documents and the processes for the examination and determination of privileged ones by a Master.

Terminology is and concepts are quite flexible and is not consistent across Canadian jurisdictions much less US ones. The use of Latin terminology is falling out of favour here.

 

[TacticalTea]

I haven’t been bothering to post updates

We absolutely love when you do!

You're my number one source on this, given that medias are generally not very knowledgeable OR concise enough.

 

[brihard]

Nope. I haven't.

I've routinely dealt with many, many Master's hearings including dozens of reviews of discovery documents for privileged communications or relevance/admissibility to the case which is basically what the Trump shemozzle is all about.

Our firm had a few cases respecting "incompetent" parties (ie young children and individuals under a mental handicap) where the court appointed a lawyer to provide independent advice and representation to the party. Manitoba generally does not use the term "amicus" (nor does Ontario) as much as terms having the same connotation e.g. "litigation guardian" "committee" "intervenor" which cover the concept. The "amicus curiae/friend of the court" provision comes specifically under Manitoba KBR 13.02 and Ontario Courts of Justice Rules 13.03(2)



That, however, is quite different from the Master's jurisdiction to rule on evidence. The CEA s 37 application that you refer to is very much in the nature of the provisions of Rule 30 of both the MB KB and ON CofJ respecting the discovery of documents and the processes for the examination and determination of privileged ones by a Master.

Terminology is and concepts are quite flexible and is not consistent across Canadian jurisdictions much less US ones. The use of Latin terminology is falling out of favour here.

Got it, thanks @FJAG . I very much lack knowledge on the civil side, but it makes perfect sense that essentially the same mechanism of a third party for privilege review would exist as I’ve seen engaged on the criminal side.

 

[KevinB]

Justice Dept. Is Said to Believe Trump Has More Documents

Sigh

 

[GK .Dundas]

Trump may very well be the most disorganized human being on the planet . I would not be surprised if he had sea can's worth of documents at his place. That not even he's aware of.
He had the most disorganized White House in living memory.
Hell! I wonder who dresses him in the morning and through the course of the day!

 

[dapaterson]

Trump may very well be the most disorganized human being on the planet . I would not be surprised if he had sea can's worth of documents at his place. That not even he's aware of.
He had the most disorganized White House in living memory.
Hell! I wonder who dresses him in the morning and through the course of the day!

That's not an excuse for stealing secret and above documents and selling them to foreign governments.

 

[KevinB]

That's not an excuse for stealing secret and above documents and selling them to foreign governments.

No, but it’s not clear that he did sell any.
It’s utterly inexcusable to retain them regardless.

 

[dapaterson]

No, but it’s not clear that he did sell any.
It’s utterly inexcusable to retain them regardless.

Not clear yet. But he and his did get millions or billions from Saudi Arabia for a golf tournament.

 

[KevinB]

Not clear yet. But he and his did get millions or billions from Saudi Arabia for a golf tournament.

Oh I think he’s guilty of it utterly.
Too many ‘coincidences’ occurred after his briefings for something not to be burning under that cloud of smoke.

The Saudi’s also outed Son in Law JK for leaking a bunch - that coincided with their crackdown.

Also looks like Hunter Biden is going to get nailed too - taxes, and gun charges.

 

[dapaterson]

I mean, to be fair, it's not like the Saudis funded 9/11.

Oh.

 

[TacticalTea]

Trump may very well be the most disorganized human being on the planet . [...]
Hell! I wonder who dresses him in the morning and through the course of the day!

Have you SEEN the man? You answered your own question!

 

[QV]

Justice Dept. Is Said to Believe Trump Has More Documents

Sigh

THIS TIME it’s actually the nuclear codes!