Status Of The MAL Raid In Court

As readers will know by now, DoJ has appealed to the 11th Circuit Court of Appeals to stop Judge Cannon (at the District Court level) from appointing a special master to review the materials seized by the FBI on their raid of President Trump’s residence. I say “materials” because it seems that not only were documents seized but even articles of clothing were seized.

First, here’s a nine minute discussion of Judge Cannon’s decision with Kash Patel. This discussion occurred prior to the DoJ appeal but is informative regarding the decision to appoint a special master. Among other points, Patel notes, as I did, that the judge was pretty clearly unimpressed with DoJ and the FBI, based on the way the warrant was sought and the way it was executed:

Jan Jekielek @JanJekielek

“The DOJ took all this stuff & didn't necessarily inform the court directly that it had taken executive privileged materials, & attorney-client privileged materials, & materials that are personal to the President." #KashPatel talks #MarALago 🎬PREMIERE 8pm ET on @EpochTVus

Regarding the DoJ appeal, Nick Arama has a fairly thorough discussion.

DOJ Makes Move to Stop Appointment of Special Master for Trump Raid Docs

Here I’ll just excerpt the three claims DoJ is making:

They’re claiming first, that Trump doesn’t have any right to protection over those documents.

Second, they’re claiming there could be irreparable harm if they didn’t continue to have access to the material to assess the national security interests that might be involved. They’re also claiming there could be harm by sharing it with a special master.

Third, they argue granting a stay on analyzing those select records wouldn’t harm Trump.

For practical purposes, the DoJ position amounts to asserting that the Deep State—or, Intel Community, if you prefer—is the sole party for deciding such matters, simply by asserting that the documents (dunno about the clothing) are classified. DoJ is clearly implying that the courts should simply butt out if DoJ asserts a “national security” interest. Who thinks there aren’t qualified people with high level clearances to serve as special master? So what’s this about harm in sharing the docs with a special master. Why not John Ratcliffe? DoJ’s claims are, to me, quite shocking. I’d like to see them slapped down hard. Judges aren’t stupid, and the implications for our constitutional order aren’t hard to see.

A technical, but important, aspect of this DoJ appeal is that it was docketed as an “interlocutory appeal,” meaning, an appeal before a final decision on a given case. The key here is that interlocutory appeals are only allowed in certain circumstances. The question—which I’m not competent to address—then becomes: Does this appeal qualify?

Margot Cleveland @ProfMJCleveland

Note: Given that court of appeals docketed as interlocutory, the issue now is whether the rules governing interlocutory appeals allow for this appeal. I want to know statutory basis DOJ asserts to research specific basis for appeal to assess.

Natalie Clark @Natalie93899450

@ProfMJCleveland Looking forward to Cleveland analysis on interlocutory appeal. Harmeet seems to think the DoJ scope of appeal is narrow. Here’s the thinking to date by a nice interchange of tweet and worth reading in comments too Ingraham had Harmeet and others on discussing Doj and Barr https://t.co/XTdCMayF3S