DOJ calls Cannon’s bluff.

September 9, 2022

          The passing of Queen Elizabeth II is dominating the news on Thursday. Her reign spanned a tumultuous period in world history. There is so much to say about her passing that it is beyond the scope of this newsletter. Instead, I simply express condolences to the people of the United Kingdom and the Commonwealth of Nations and defer to the statement of President Joe Biden:

The thoughts and prayers of people all across the United States are with the people of the United Kingdom and the Commonwealth in their grief. Her Majesty Queen Elizabeth II was more than a monarch. She defined an era.

In a world of constant change, she was a steadying presence and a source of comfort and pride for generations of Britons, including many who have never known their country without her.

Queen Elizabeth II was a stateswoman of unmatched dignity and constancy who deepened the bedrock alliance between the United Kingdom and the United States.

The DOJ files notice of appeal of Judge Cannon’s ruling.

          The DOJ filed a notice of appeal from Judge Cannon’s order appointing a special master. The notice of appeal was coupled with a DOJ motion to stay—or suspend—a portion of Judge Cannon’s ruling relating to 100 documents marked “classified.” In effect, the DOJ has asked Judge Cannon to revise her ruling to allow the DOJ to use the classified documents in its criminal investigation and security damage assessment. If she does not grant the DOJ’s request for a stay by next week, it will appeal that portion of her order. See Notice of Appeal.

          Before discussing the legal arguments, let’s focus on the strategic substance of the DOJ’s move. Combining the motion for stay and notice of appeal was a brilliant move by the DOJ that effectively offers Judge Cannon the opportunity to correct the most grievous error in her order appointing a special master. After the unprecedented drubbing that Judge Cannon has taken over her incoherent and lawless order, she would be wise to grant the DOJ’s motion, thereby allowing the DOJ to use the classified documents in its criminal investigation.

          Judge Cannon has already hinted that she may be considering accepting the DOJ’s face-saving offramp. Immediately after the DOJ filed its motion, Judge Cannon issued an electronic order requiring the parties “to consider Defendant’s position as to the approximately 100 [classified] documents” in their briefs regarding the special master’s “order of operations” and schedule. See Docket item #73.

          Trump’s attorneys must therefore state their position on the DOJ’s request for a stay by Friday, September 9, 2022. Trump’s attorneys have already told the DOJ that Trump opposes its request for a stay. It will be interesting to hear why Trump’s attorneys oppose the ability of the DOJ to use classified documents that belong to the United States.

          As to the legal arguments, the DOJ’s Motion to Stay seeks permission to use a “discrete set of approximately 100 documents” marked as classified. The DOJ argues as follows:

The classified records are government property over which the Executive Branch has control and in which Plaintiff has no cognizable property interest.

Plaintiff does not and could not assert that he owns or has any possessory interest in classified records; that he has any right to have those government records returned to him; or that he can advance any plausible claims of attorney-client privilege as to those records that would bar the government from reviewing or using them.

Plaintiff himself declined to assert any claim of executive privilege over the classified records at the point when it would have been appropriate to do so.

          The DOJ also explained to Judge Cannon that her order imposed a nonsensical and impossible burden on the Intelligence Community by barring the FBI from reviewing and using the classified documents seized in the search. As explained in a declaration from the FBI’s Counterintelligence Division, the FBI is an integral part of the national security intelligence community—which Judge Cannon authorized to continue with a damage assessment to national security. The declaration continues:

 [E]ven if it were feasible to [separate] the FBI personnel involved in the government national security risk assessment from those involved in its criminal investigation, in practical terms, doing so makes little sense, given that the same senior DOJ and FBI officials such as myself, are ultimately responsible for supervising the criminal investigation and for ensuring that the FBI is coordinating appropriately with the rest of the intelligence community on its classification for review and assessment.

          Finally, in a little discussed document, the DOJ also filed a motion to unseal a report regarding the FBI’s “filter process.” In that filing, the DOJ said that it applied a very broad filter to protect documents potentially subject to the attorney-client privilege and that it has offered to give copies of those documents to Trump. See Motion to Unseal Status Report re Filter Process.

          Combined with the motion to stay and notice of appeal, the offer to unseal the report regarding the filter process puts Trump in the untenable position of asking the Court to maintain secrecy over the FBI’s review process—the opposite of Trump’s public position demanding transparency.

          In short, the DOJ has called Judge Cannon’s bluff. She is faced with a stark choice: She can confirm either that she is incompetent but teachable or corrupt and incorrigible.

          Likewise, the DOJ has called Trump’s bluff: He must tell Judge Cannon if he claims that he declassified the 100 documents he stole and whether he claims executive privilege over any documents. The former is a lie that would subject Trump and his lawyers to perjury and sanctions, and the latter is a self-defeating claim that would affirm the status of the seized documents as property of the United States. Either way, it is a lose-lose proposition for Trump.

          Friday’s filings by the DOJ and Trump will be interesting. Stay tuned!

Michigan Supreme Court allows pro-choice amendment onto ballot.

          Two Republican members of a canvassing board attempted to keep an initiative signed by 750,000 Michigan voters off the ballot because of font-spacing issue. On Thursday, the Michigan Supreme Court rejected their effort in a 5-2 ruling. See Talking Points Memo, Michigan Supreme Court Puts Pro-Choice Measure On Ballot. The Chief Justice of the court wrote in a concurrence,

           [The Republican members of the canvassing board] would disenfranchise millions of Michiganders not because they believe the many thousands of Michiganders who signed the proposal were confused by it, but because they think they have identified a technicality that allows them to do so, a game of gotcha gone very bad.

          The Michigan Supreme Court reached the right result—allowing the people to vote on reproductive liberty. The amendment will pass. Moreover, it will spur turnout among women and men who seek to protect reproductive liberty and privacy for all Michigan citizens.

          In a related development, a Republican state senator in South Carolina blocked a GOP bill to ban abortions in that state by threatening a filibuster. See Axios, South Carolina near-total abortion ban rejected by senators. The male GOP senator joined three GOP women senators and another male Republican senator to stop the bill. The failure of the proposed legislation leaves a 20-week abortion law in effect, as the South Carolina state supreme court considers a legal challenge to other anti-choice legislation.

          Interestingly, the GOP senator said he switched his position on the bill after hearing from his daughters about losing control over their bodies if they become pregnant. Similar conversations are happening across America. Good!

DOJ investigating Trump’s election denial PAC.

          Two days after Trump lost the 2020 election, he created the “Save America PAC” to help challenge the election. Or so he said. Whether he spent money within the fundraising purpose of the PAC is open to question. On Thursday, the NYTimes reviewed subpoenas issued by a federal grand jury to members of the Trump administration and 2020 campaign. See NYTimes, Trump’s Post-Election Fund-Raising Comes Under Scrutiny by Justice Dept.

          The grand jury that issued the subpoenas regarding the Save America PAC is not the same grand jury investigating the “fake electors” scheme promoted by Trump. In other words, add yet another federal investigation into Trump’s bouquet of legal troubles. As discussed earlier this week, the mere existence of the investigations is likely to cause someone in Trump’s inner circle to flip. It is good to see that the DOJ has at least three open investigations into Trump’s illegal conduct!

Steve Bannon indicted, booked, and released in Manhattan.

         Steve Bannon was indicted in Manhattan on Thursday. The indictment alleged money laundering and conspiracy to defraud in connection with efforts to raise private money to “build the wall.” See Reuters, Steve Bannon, former Trump adviser, pleads not guilty in border wall scheme. A handcuffed Bannon told reporters outside the courtroom that the indictment was the act of a “dying regime” and “they will have to kill me” to keep Bannon from talking. Of course, no one is trying to stop Bannon from talking. Instead, they are trying to stop Bannon from defrauding gullible investors who believe Bannon’s lies.

          Andrew Weissmann described the indictment as a “rock crusher” because of its detailed factual allegations relating to Bannon’s guilt. Per a Weissmann tweet, the indictment “recites a series of damning emails with Bannon that directly and explicitly implicate him in the scheme to defraud.”

Concluding Thoughts.

          Momentum matters. Democrats have it. The DOJ has it. When momentum is on your side, that is the time to push harder, move faster, and do more.

          Momentum is infectious. Kansas. Michigan. South Carolina. Alaska. NY-19. Inflation Reduction Act. Investigations: Stolen secrets, fake electors, defrauded contributors, Georgia interference, NY tax evasion. Biden unleashed, Trump unhinged.

          Two months to go, and momentum is on our side. We should all feel good about that fact. Not cocky, but energized.

          Talk to you on Monday—though I may send a short note about developments on Friday if circumstances warrant!