Which Is To Be Master --That's All
by Dar ul Harb, Esq.
"‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master—that’s all.’"
--Lewis Carroll, Through the Looking-Glass, and What Alice Found There (1871), Ch. VI
(“Humpty Dumpty And The Messenger,” illustration by Sir John Tenniel, ca. 1871)
The Department of Justice moved yesterday for the U.S. District Court for the Southern District of Florida to partially stay its order from Monday granting almost all of the relief sought in President Trump’s motion for judicial oversight via appointment of a special master, pending the DOJ’s planned appeal of the order to the 11th Circuit.
If the Court does not grant a stay by Thursday, September 15, the government intends to seek relief from the Eleventh Circuit.
p.1
I would not be surprised if the court granted the government’s motion, as courts often do in order to be reasonable to parties who plan an appeal, but the language used here seems to make an appeal contingent on the court not granting the motion. If the Government is going to appeal anyway, regardless whether the court grants the partial stay or not, the better course might be to let the deadline expire, and see what the 11th Circuit thinks.
Looking at the motion, one finds this interesting explanation in footnote 1:
"As discussed herein, a classification review of these materials was in progress at the time of the Court’s order but has not been completed. For ease of reference and because materials marked as classified (and papers physically attached to them) must be treated as classified until determined otherwise, this motion refers to records bearing classification markings as 'classified records.'"
p.2
Interesting considering that their whole motion, and case (such as it is) depends upon "documents having classified markings" being the same as "classified records,” and that delaying the criminal investigation of President Trump for having these “classified records” for a few weeks so that the special master can be appointed and review the seized materials will somehow cause “irreversible harm” to “national security.” I guess President Trump will only be able to prove these documents were declassified, at trial, if he's indicted. In the meantime, the DOJ can hold the threat of indictment over his head indefinitely, and continue to leak to the press.
The supposed urgency of the entire case seems absurd, considering that the seized materials, even the classified materials, can be nothing that President Trump hasn’t seen before, and which under the Presidential Records Act he has a legal right to access, and their “unauthorized” storage at Mar-a-Lago seems to be merely the result of the Biden Administration declaring it “unauthorized.”
The motion seems to imply that these classified records —oh, sorry— I mean “documents having classified markings,” are the only copies in existence, and without access to them, the government is missing these documents (lacking “access”):
“…the Court’s reasoning with respect to the fourth factor—that “[w]ithout Rule 41(g), Plaintiff would have no legal means of seeking the return of his property for the time being,” D.E. 64 at 10—is categorically inapplicable to classified records because Plaintiff has no legal right to have those records returned to him. Such records clearly belong in government custody and, as a matter of national security, must be fully accessible to the Executive Branch.”
p.7
However, if they are in fact copies, not originals, the government's argument here fails. President Trump having a copy of the documents doesn't deprive the government of their contents.
The government’s argument in general also seems to depend on President Trump “not following proper procedure” in declassifying the documents, as though the President doesn’t have ultimate constitutional authority over the declassification process, but must act through the bureaucracy (which derives its executive power from the President, not the other way around). To the extent that the government asserts that the documents are not declassified because President Trump didn’t act through the bureaucracy, it really is a question of “which is to be master” of the declassification process, the elected President, or the so-called “deep state” of permanent executive bureaucracy.
Letting a special master (with a proper security clearance) review the seized materials could very well “give the game away” concerning the raid, if the “classified documents” turn out to be copies, or nothing of the earth-shaking importance claimed in the governments leaks to The Washington Post,1 or implied in their court filings.
There’s also an entire aspect of law geekery related to this that’s a matter of public debate among some rather experienced trial attorneys and legal scholars, whether the government can even appeal the court’s order to the 11th Circuit, because it may or may not be considered a “final” order.
I'm not a litigator, but reaching back to my creaky old memories of civil procedure, I guess it arguably could be a “final” order considering that it gave President Trump almost all the relief he'd asked for in his motion, aside from returning his property, which is kind of contingent on the findings of the special master (if and when appointed). Thus, the order pretty much disposed of the matter the motion was about.
However, as Leslie McAdoo Gordon earlier pointed out, the motion President Trump filed is not a “lawsuit,” but kind of a continuation2 of the matter which was before the magistrate, which also isn’t a criminal “case” yet, because there’s been no indictment.
The warrant application proceeding before the magistrate is essentially done. The government got their warrant, executed it, and there were some followup motions about unsealing parts of the docket, which occurred (and which, notably, the government did not appeal). The motion filed by President Trump concerning that proceeding is not a “lawsuit,” because under the rules of civil procedure, a “lawsuit” begins with filing a “complaint,” not a “motion.” So arguably, the order issued by the court isn’t a final order because there’s really no “case” yet, either civil or criminal, for it to be a final order about (are we through the looking glass yet?).
The parties are supposed to jointly submit their names of proposed candidates for appointment as the special master today.
—end—
I’d wondered whether the DOJ would cite to The Washington Post article in their motion, but it appears they didn’t. I guess they only cite to their own leaks in affidavits for search warrants, and applications for surveillance warrants. Still, this leak seems like a calculated preemptive strike to thwart the appointment of a special master, by claiming that the documents contain secrets so sensitive, the special master is unlikely to be cleared for them.
President Trump's motion (and particularly the supplemental brief) explains why he couldn't move the magistrate judge for this relief, and had to go to the Article III judge. Which makes it, in my view, not really a separate action to the government's warrant application, but sort of a continuation of it.
Well, that's a little unfortunate... the post on the homepage is showing the bottom half of Humpty Dumpty, and I can't adjust which part of the image is displayed. 😆