My understanding is this is a stay pending appeal of Cannon’s entire ruling. DOJ doesn’t want this case to stand as precedent, as you noted.
These two things can now proceed on two tracks simultaneously. Garland’s brilliance showed in how he carved up the Cannon ruling to get what they needed quickly. DOJ can now pursue their criminal investigation into Trump’s potential violations, and they can concurrently take their time to appeal the entire ruling. AIUI, the stay will stand pending the appeal of the entire ruling.
Even if Dearie completes his review – and I expect he will, much sooner than Trump hopes – DOJ has still preserved their rights to appeal the full ruling so the Cannon case won’t stand as precedent.
The other cool thing is the Eleventh Circuit showed a lot of leg today. Their ruling didn’t just brush Cannon back. They smashed her into the bleachers. This gives Garland a heads-up on how the whole court will rule when her entire ruling is appealed.
One hopes that even this SCOTUS will likely decline to take up this case. There’s no law at issue here that compels them to do so. The Eleventh made that really clear today.
As I understand it, the US DOJ has appealed all of her initial ruling and order, but filed a request for an emergency stay of the parts related to classified documents. That emergency stay request was heard by 3 of the 11 judges on the Appeals court (2 of whom are Trump appointees). The stay was granted pending the hearing of the full appeal by the full 11 judge panel. So an emergency stay (against Cannon) pending appeal.
However, I think the 3 judges somewhat tipped their hand on the full appeal and it doesn’t appear that they will be friendly to Cannon’s view of things. Which is significant given that the 11 are “split” 6-5 as “conservative” vs. “liberal”, since, if 2 of the 3 on this ruling are from the 6 and assuming the 5 stick together, gives the US DOJ a minimum of a 7-5 perceived advantage.
With all that said, it also appears that Dearie (the Special Master) is over Trump’s bullshit and the appeal may be moot when he allows everything except a very few documents to be considered PRA material. Based on his proposed timeline, he will rule long before any appeal to the full panel will be heard - unless Cannon fires him or ignores his rulings, but that will weigh significantly against her as things move forward as I understand it. She put him there, she shouldn’t just ignore him.
Here’s another crucial part of the ruling: The special master and the Trump lawyers are actually, it would appear, debarred from examining the classified materials:
The United States also argues that allowing the special master and Plaintiff’s counsel to examine the classified records would separately impose irreparable harm. We agree. The Supreme Court has recognized that for reasons “too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.” Egan, 484 U.S. at 529 (quotation omitted). As a result, courts should order review of such materials in only the most extraordinary circumstances. The record does not allow for the conclusion that this is such a circumstance.
In sum, given the long-recognized “compelling interest in protecting . . . the secrecy of information important to our national security,” Snepp v. United States, 444 U.S. 507, 509 n.3 (1980), we conclude that the United States would suffer irreparable harm from the district court’s restrictions on its access to this narrow—and potentially critical—set of materials, as well as the court’s requirement that the United States submit the classified records to the special master for review.
Surprisingly, in my experience I’ve seen the term used fairly often in pleadings. Sometimes it’s a fair characterization, sometimes not. In this case, very fair. As @Lance_Turbo repeatedly pointed out.
Sweet. I’ve been following this with a bit too much enthusiasm but I hadn’t realized that they’d already filed an appeal of Cannon’s full ruling. I really appreciate your analysis. I feel kind of optimistic after reading what they had to say about Cannon so far.
Thanks! IANAL, but I’ve been a law-junkie for quite a while. As Aspenglow pointed out, regardless of how things shake out re the Special Master, the DOJ has a vested interest in squashing any precedents Loose Cannon (I love that, BTW) might create.
For that reason, I probably erred in assuming it was a moot point, the DOJ wants the Appeals Court to rule regardless of whether or not they win at the District level.
If Trump’s theory is correct, then Sidney Powell is a special prosecutor.
Because its within the rights of a President to appoint a special prosecutor and there are multiple witnesses to the fact that at some point on Dec 18th, Trump said the magic words “I appoint Sidney Powell as special prosecutor”.
But she’s not, because Trump never followed through. He didn’t do jack shit after he said those words, so she never marched into the DOJ and ordered them to seize voting machines, and if she did it tomorrow she’d be laughed at or arrested, probably both.
I think the “magic wand” theory is somewhat misleading. Yes, when he was President he had the absolute right to declassify documents, he could do it over the objections of everyone and there was no one with the authority to stop it. He could probably even stand over a box of documents and say “I declare these are declassified”……as long as he threw the box at someone afterwards and said “go take care of the details.” But he still has to do the last part, or Sidney Powell is a special prosecutor on election fraud.
There was nothing implicit about it. They slapped her down, hard. In this section, they made a decision based on one factor, saying she abused her discretion, and then continued “but let’s make the record complete in showing JUST HOW wrong you were”… for 12 more pages:
This was also written and filed in such a way that there is no lead author, with the others assenting/dissenting. No, this was filed in a manner where this was all three of them speaking:
