[Updated] – DOJ Appeals To 11th Circuit

The Department of Justice takes an utterly unsurprising, but important step in the Mar-a-lago document case

[Documents taken in August Mar-A-Lago search]

Last night, surprising absolutely no one, the Department of Justice filed an appeal with the Eleventh Circuit Court of Appeal about Judge Aileen Cannon’s ruling blocking criminal investigators from accessing the documents marked classified that were retrieved from Mar-A-Lago. The contents of the appeal largely mirror the structure of the request for reconsideration they made to Judge Cannon. As covered here, on Thursday, Judge Cannon denied that request as part of her order naming a Special Master.

First thing to get out of the way: this is not a broad appeal of Cannon’s decision to appoint a Special Master. The DOJ has constructed a very narrow and tight “stay” argument against the section of that ruling that forbids them from using the documents marked classified as part of ongoing investigations during the Special Master review period. They are also requesting a stay in having to share copies of those documents with the Trump legal team. Time will tell if, as many expect, the DoJ decides to move forward with a broader appeal or not.

What happens next is that this appeal will go before a three-judge panel from the Eleventh Circuit. There is no telling when this will be heard by the Eleventh Circuit. As far as the potential make-up of the panel, Politico reporters note:

Republican appointees, and in particular Trump nominees, dominate at the appeals court that will now consider issues presented by the unprecedented criminal investigation and FBI raid of the former president’s home. Trump’s judicial picks make up a majority of the 11th Circuit’s active judges and Republican appointees occupy eight of the 11 active judgeships that are currently filled.


Again, I want to urge people to avoid any assumption that “the fix is in.” Circuit Judges often rule in unexpected ways and the DoJ’s argument is very well crafted.

That said, regardless of the outcome, this will not stop with the three-judge panel. Since the 11th Circuit doesn’t allow for en banc (full circuit) hearings for stay motions, this will be heading to the Supreme Court and emergency relief. And what happens there, in this case of the *current* Executive Branch vs. the *previous* Executive Branch could be the start of a literal Constitutional crisis. However, it should also be kept in mind that the SCUS can choose to not hear the case. I think there is a pretty good chance that if the 11th Circuit finds for the DOJ, then the Supreme Court may just let that stand. I think that is far less likely if the Circuit upholds the lower court’s decsision.

Again, my expectation is that the higher this gets, the more deference will go to the current Executive Branch, but y’all know my track record when it comes to prognostication.

As far as the argument the DoJ is making, as I mentioned above it’s super tight (as one would expect) and deeply rooted in precedent. As I’ve called out a few times before, one key thing it once again stresses is that the Trump team has yet to make any affirmative claim in a court of declassification or executive privilege:

Despite multiple opportunities, Plaintiff has never represented that he in fact took either of those steps [declassification or executive privilage]—much less supported such a representation with competent evidence…. The court erred in granting extraordinary relief based on unsubstantiated possibilities….

Aside: in media appearances, former President Trump continues to claim that he did in fact declassify “everything.” There is a far greater than 0% chance that those public proclamations will come back to haunt him and his legal team in court.

As one would expect, the DoJ filing was highly critical of Judge Cannon’s reasoning and ruling as well. But, perhaps the most interesting section was the following one:

Yet the district court here ordered disclosure of highly sensitive material to a special master and to Plaintiff’s counsel—potentially including witnesses to relevant events—in the midst of an investigation, where no charges have been brought…

As noted previously, it appears that at least two of the former President’s lawyers have legal exposure in this case (most likely around making false statements). At a minimum, they were witnesses to potentially criminal behavior. In most cases, they would not be part of an ongoing legal team because of that exposure. But this isn’t most cases. So the idea that you will provide witnesses and potential suspects with documents that they might ultimately be asked to testify about is… to say the least… highly irregular.

And, as with all things related to this case, nothing at all is regular. We continue to find ourselves far off the map. So who knows what dragon will pop up next. But whatever does, I’ll (probably) cover it here (eventually).

[Update 9/18 @ 11am ET] – Last night the 11th Circuit informed the Trump legal team that they must submit their brief by noon on Tuesday. This suggests this will be pretty expedited. Depending on whether or not there is a hearing we may know the outcome of the appeal by Friday. I also expect a number of outside lawyers and legal groups will be filing amicus briefs as well.

FILED UNDER: Crime, Law and the Courts, Supreme Court, The Presidency, US Constitution, US Politics, ,
Matt Bernius
About Matt Bernius
Matt Bernius is a design researcher working to create more equitable government systems and experiences. He's currently a Principal User Researcher on Code for America's "GetCalFresh" program, helping people apply for SNAP food benefits in California. Prior to joining CfA, he worked at Measures for Justice and at Effective, a UX agency. Matt has an MA from the University of Chicago.


  1. Skookum says:

    I’m literally praying that this matter is decided by law and precedent, not politics. And yet, I have so little hope at this point.

  2. Matt Bernius says:

    Again, I will mount my soapbox that it is really dangerous to try to make broad assumptions from a sample size of 1.

    I will also remind everyone of the counterfactual that during the spate of “stolen election” cases in Federal courts, a number of Trump appointees at the district level handed him losses. And all three of his Supreme Court nominees essentially voted to uphold lower court decisions (i.e. not hear the case) against him in the election review appeal.

  3. OzarkHillbilly says:

    @Matt Bernius: Yeah, but people are paranoid and you know what they say: Just because somebody is paranoid doesn’t mean they aren’t out to get you. 😉

  4. Matt Bernius says:

    Fair… though on this issue I turn to the ascended master:

    [Arthur Dent remarked] “All through my life I’ve had this strange unaccountable feeling that something was going on in the world, something big, even sinister, and no one would tell me what it was.”

    “No,” said the old man, “that’s just perfectly normal paranoia. Everyone in the Universe has that.”

    [RIP DA!]

    ― Douglas Adams, The Hitchhiker’s Guide to the Galaxy

  5. Argon says:

    Thankfully the current majority bloc with the SCOTUS would never do anything that could be construed as politicizing and delegitimizing the institution… You can rest easy knowing Justice Roberts will ensure no such shenanigans will occur under his watch!

  6. gVOR08 says:

    @Matt Bernius:

    They’re trying to kill me,” Yossarian told him calmly.
    No one’s trying to kill you,” Clevinger cried.
    Then why are they shooting at me?” Yossarian asked.
    They’re shooting at everyone,” Clevinger answered. “They’re trying to kill everyone.”
    And what difference does that make?

  7. Matt Bernius says:

    I really need to reread Catch-22.

    And since this discussion has gone way off topic and in a literary direction, Catch-22 is forever linked in my mind with one of the pre-revival BBC Doctor Who spin-off books. It was involving the 8th (Paul McGann) Doctor and the conceit was brilliant: it was about an amnesiac Doctor who gets caught up in WW2 European intrigue. The “high concept” is that the story is told (specifically *written*) by three different writers (in pastiches of their style).

    The book begins being narrated/written by Alan Turing. Then the story is taken over by OSS spy Graham Greene (“The Quiet American” and “End of the Affair”) who becomes caught up in things. And, due to airplane-related shenanigans, it’s finished off by Joseph Heller who just takes the piss out of everything.

    The book is called “The Turing Test” and it is far better than it has any right at all to be.

  8. JohnSF says:

    @Matt Bernius:
    No Catch-22 connection, but I recall an SF story I read, maybe ten years ago, involving a time travelling robot sent back to an alternative timeline to save Alan Turing from persecutions and suicide, and becoming suspected of being either an agent of the Devil and/or the Soviets by a character who is a very thinly disguised C.S. Lewis with an MI5 connection, IIRC.

    Wish I could remember the title and author, it was a good yarn.

  9. Matt Bernius says:

    I would read the hell out of that story if you can ever dig up the name.

    Maybe I need to restart my old “crowdsourced” feature from years ago where I just asked people for recommendations about things.

    Aside: while I’ve been a Doctor Who fan from the public television days of the 1980’s, I rarely buy any of the books. The reason I got that book, in particular, was I was doing research into Turing Tests as part of larger work on Chatbots. Ironically this was circa 2004 and I ultimately abandoned that research because I was like “who will ever care about chatbots beyond their use in customer support?!”

    Again, I am the worst effing prognosticator.

    Still to this day, I will read anything about Turing that crosses my path.

  10. mattbernius says:

    Back on point, the 11th circuit had given the Trump Team until noon on Tuesday to respond. I expect a decision by the end of the week or early the following week (unless they schedule a hearing).

  11. Ken_L says:

    Maybe Judge Dearie can help things along by asking how the hell he’s supposed to decide what documents might be subject to executive privilege when (a) Trump hasn’t asserted it, and (b) Cannon claims the applicable legal principles are a mystery.

  12. Ol’ Nat says:

    Have you read Neal Stephenson‘s Cryptonomicon? He has a little Turing subplot. Great book!