Hidden between the strains of the Justice Division’s submitting Thursday of a request for Trump-appointed Decide Aileen Cannon to briefly keep a part of her Trump particular grasp order is the implication that Cannon is carrying out little moreover hurting an investigation that seeks to guard our nationwide safety.
The DOJ’s submitting not solely provides discover that it plans to enchantment her resolution, but in addition asks her to enjoin herself by briefly lifting her ban on the DOJ reviewing and dealing with the set of simply over 100 categorized paperwork which can be being saved individually from the remainder of the paperwork seized by the FBI at former President Trump’s Mar-a-Lago resort.
Cannon had stopped the DOJ from reviewing the entire paperwork however allowed an intelligence evaluation of the paperwork to proceed. Though the DOJ notes that it continues to disagree with Cannon barring entry to the entire paperwork pending a particular grasp’s assessment, its keep request applies solely to a assessment of the categorized paperwork. In laying out the explanations for this slim ask, the DOJ exposes Cannon’s permitting solely an intelligence evaluation of the paperwork to proceed as unworkable and harmful.
The DOJ argues within the submitting that in a case corresponding to this one the evaluation of the paperwork for his or her intelligence worth and danger is “inextricably linked with the felony investigation.” It tells Cannon that her stopping the DOJ and the FBI from reviewing the categorized paperwork has additionally halted the intelligence assessment as a consequence of considerations over what can and can’t be shared with DOJ/FBI investigators.
At greatest, Cannon’s view that an intelligence assessment can proceed completely independently of the felony investigation displays a naiveté about how nationwide safety investigations work. Merely put, the intelligence evaluation isn’t simply an ivory-tower studying of paperwork by a bunch of a nerdy analysts working in a SCIF (Delicate Compartmented Data Facility) however requires working with the paperwork to reply such essential questions as who could have accessed the categorized paperwork, who they might have been disseminated to, and the place else categorized paperwork may be positioned.
These solutions come solely from investigative steps like monitoring down and speaking to witnesses, reviewing surveillance and different forensic information, and following up on leads that emerge from this course of. By banning such steps, Cannon ignores the truth that the FBI is a part of the intelligence group that’s tasked with assessing the categorized paperwork. Her ban is mostly a ban on the DOJ and the FBI’s capability to correctly defend nationwide safety.
In rebutting Cannon’s meritless concern over govt privilege as a justification for this harmful interference with a felony investigation into threats to nationwide safety, the DOJ begins by declaring that govt privilege can’t presumably justify denying the Govt Department from entry to and use of its personal paperwork. It reminds Cannon of the Supreme Courtroom’s 1977 ruling in Nixon v. Administrator of Common Providers, during which the courtroom mentioned how anomalous it might be to permit a former president to make use of govt privilege to cease an investigation “by the very Govt Department in whose title the privilege is invoked.”
The DOJ additionally factors out that Trump and his authorized workforce by no means asserted govt privilege over categorized paperwork beforehand subpoenaed and produced by them however solely asserted govt privilege over paperwork found to have been withheld. Consider a financial institution robber who returns stolen money stained by an exploding dye-pack however claims extra stained cash present in his home was not really stolen.
The DOJ additionally eviscerates Cannon’s concern over attainable damage to Trump by declaring that Trump has by no means claimed to have any “property, possessory, or different authorized curiosity in categorized data” and that the Supreme Courtroom and different federal courts of appeals have rejected the concept that mere worry of felony prosecution constitutes irreparable hurt.
Most powerfully, the DOJ turns Cannon’s concern over attainable damage to Trump towards her by declaring that the actual potential irreparable hurt arising from this case isn’t any form of damage to Trump however relatively the chance of irreparable hurt to the federal government and public from delaying the felony investigation on this case.
In sum, the DOJ makes the case that Cannon’s ordering of a particular grasp accomplishes nothing in the best way of defending actual authorized rights for Trump or the Govt Department. The one factor achieved by Cannon’s ruling is delaying and hurting a possible felony case towards Trump. However perhaps that was the purpose all alongside.