A story about a pathetic man's downfall [34 Felony Convictions]

[TwiceHorn 30738]

5 minutes ago, Homercles said:

I’ve always loved the book The Rainmaker (never seen the movie), given its first-person narrative from Rudy’s point of view and insight into the insurance industry…and generally more relaxed, humorous atmosphere from the other Grisham novels I’ve read.  
 

When he takes on the Black’s case, during discovery he gets his first giant ream of paperwork from the high powered defense team and his professor makes a poignant remark about the insurance company being able to afford a gaggle of lawyers to confuse and overwhelm the plaintiffs.  It sure seems to help folks like Trump, Musk, etc. 

As alluded to in the previous post, though, that type of tactic doesn't always or even usually work.  At least in the civil system, the littler guy wins with quite some frequency.  The financial disparities are more exaggerated and more closely tied to results in the criminal system.

[Dahobbs 17098]

39 minutes ago, TwiceHorn said:

One curious thing. What stood out to me about  the 11th circuit opinion was if the lower court didn't find callous disregard for Trump's rights, that was pretty much the end of the inquiry.

The government never really argued that as a dispositive factor, and Trump didn't have to wriggle away from it.  So, yet another instance of a judicial decision turning on a "surprise" factor. 

Edit:  digging a little deeper, the 5th Circuit case from which callous disregard comes, Richey v. Smith, doesn't seem really to give that factor quite the dispositive weight:

First, and perhaps foremost, is the question whether the motion for return of property accurately alleges that government agents — in this case agents of the IRS — in seizing the property displayed "`a callous disregard for the constitutional rights of the taxpayer.'" 497 F.2d at 34. Other factors to be considered are:

Richey v. Smith, 515 F.2d 1239, 1243 (5th Cir. 1975).  "First, and perhaps foremost" doesn't exactly suggest that if there's not callous disregard you can just stop right there.

It will be interesting to see what the merits panel decides as to the whole order.  It sure looks like they're going to trash it altogether, but stranger things can happen. 

The order was certainly furthest out on a limb when dealing with the classified documents.  But it raised an oddball issue:  other than just saying so,  probably under oath (I have reviewed these documents and on the first page of every single one, it says "Top Secret") how the hell do you prove something is classified if you don't submit a document for inspection?

The oddball issue doesn't matter because Trump never actually submitted any evidence that he had an interest in the property. It was incumbent on him to provide some evidence that he had an actual possessory interest in each item seized by the government. Arguments of counsel don't count. He needed evidence. The burden was on him and he did nothing. 

[TwiceHorn 30738]

15 minutes ago, Dahobbs said:

The oddball issue doesn't matter because Trump never actually submitted any evidence that he had an interest in the property. It was incumbent on him to provide some evidence that he had an actual possessory interest in each item seized by the government. Arguments of counsel don't count. He needed evidence. The burden was on him and he did nothing. 

Trump has a problem with that whole evidence thing, as a general proposition.  I guess it goes hand-in-hand with the constant lying.

What raised the issue for me is that it was reported that Dearie said the government had made a prima facie case that the documents were classified, and Trump needed to rebut it.  Fine, makes perfect sense.  But how do you make that prima facie case without presenting the documents, presumably redacted?  Would an affidavit suffice?  Did the government present such an affidavit?  If so it was probably under seal, which is why I don't recall seeing it.

Otherwise, you're left with attorney argument on both sides of the issue.

Edited September 22, 2022 by TwiceHorn

[Judge Roybeanbag 11728]

1 hour ago, Dnaguy said:

Wait. Are you saying rich / monied people get better treatment in the criminal justice system?

What about jobs or schools? Do they get better ones of those too?

IDK man. Something So systemically and structurally wrong with our system of government, economy, and justice would have been dealt with by Congressional action, no?. It seems kind of antithetical to the values of the republic that rich people get more rights than those with less.

you better check your facts before you start impugning the shining city on the hill like that.

Get outta here with your Critical Wealth Theory!

[956 Worldwide 33959]

19 minutes ago, TwiceHorn said:

Trump has a problem with that whole evidence thing, as a general proposition.  I guess it goes hand-in-hand with the constant lying.

What raised the issue for me is that it was reported that Dearie said the government had made a prima facie case that the documents were classified, and Trump needed to rebut it.  Fine, makes perfect sense.  But how do you make that prima facie case without presenting the documents, presumably redacted?  Would an affidavit suffice?  Did the government present such an affidavit?  If so it was probably under seal, which is why I don't recall seeing it.

Otherwise, you're left with attorney argument on both sides of the issue.

I don’t understand the argument.  The government says “there are this many pages of documents marked with various classification markings. We don’t want anyone to see those and include for the special master review.”

Trump’s team never said (that I know of) they don’t exist or that the markings aren’t there, they just said that the documents didn’t exist, or that the markings were fake, or that they shouldn’t have been marked. In fact, they seemed to admit they were marked and existed when they demanded they be included in the special master review. 
 

So I’m not sure why these need to be presented to anyone or demonstrated to exist. 

[Sawbonz 26742]

10 hours ago, The Dog said:

 

When you’re President they let you do it. You can do anything, declassify documents with your mind

[brown water 3760]

2 hours ago, Constant said:

From a defense standpoint, isn’t this interview pretty high on the ‘don’t do stupid shit’ scale? Fox News is going to exploit his downfall at every turn for eyeballs and clicks. They certainly aren’t doing him any favors here. 

 

[lemonlime 5485]

Trump has a problem with that whole evidence thing, as a general proposition.  I guess it goes hand-in-hand with the constant lying.
What raised the issue for me is that it was reported that Dearie said the government had made a prima facie case that the documents were classified, and Trump needed to rebut it.  Fine, makes perfect sense.  But how do you make that prima facie case without presenting the documents, presumably redacted?  Would an affidavit suffice?  Did the government present such an affidavit?  If so it was probably under seal, which is why I don't recall seeing it.
Otherwise, you're left with attorney argument on both sides of the issue.

I’m going off memory and certainly can’t remember every document in this case. But didn’t the fbi have a certified inventory of what they took from maralago including boxes containing documents stamped certified. Also, trump never argued in court that the documents the government stamped certified didn’t contain the stamp.

[lemonlime 5485]

Trump has a problem with that whole evidence thing, as a general proposition.  I guess it goes hand-in-hand with the constant lying.
What raised the issue for me is that it was reported that Dearie said the government had made a prima facie case that the documents were classified, and Trump needed to rebut it.  Fine, makes perfect sense.  But how do you make that prima facie case without presenting the documents, presumably redacted?  Would an affidavit suffice?  Did the government present such an affidavit?  If so it was probably under seal, which is why I don't recall seeing it.
Otherwise, you're left with attorney argument on both sides of the issue.

I’m going off memory and certainly can’t remember every document in this case. But didn’t the fbi have a certified inventory of what they took from maralago including boxes containing documents stamped certified. Also, trump never argued in court that the documents the government stamped certified didn’t contain the stamp.

[YGIFS 19444]

So you're literally double stamping with no erasees?  

[lemonlime 5485]

Trump has a problem with that whole evidence thing, as a general proposition.  I guess it goes hand-in-hand with the constant lying.
What raised the issue for me is that it was reported that Dearie said the government had made a prima facie case that the documents were classified, and Trump needed to rebut it.  Fine, makes perfect sense.  But how do you make that prima facie case without presenting the documents, presumably redacted?  Would an affidavit suffice?  Did the government present such an affidavit?  If so it was probably under seal, which is why I don't recall seeing it.
Otherwise, you're left with attorney argument on both sides of the issue.

Also, as I think on it more, I doubt the DOJ attorneys could certify to this. They didn’t have the need to look at the classified and top secret documents. This would have been in the fbi inventory, which if there was something more specific than what was submitted on pacer would have had to have been submitted under seal

[Nice Guy Eddie 13280]

Crazy how we're moving into a space where Trump is now mentally declassifying documents. I think this pivot is because his attorneys have proven to him that there was no order that documents taken out of the WH were auto-declassified. (Maybe that was order was also in his mind, which is the equivalent of an exec order.)

Of course any of his bs arguments are only for the rubes. Even his lawyers won't be dumb enough to make that argument in court or filing. I don't even think they will ever claim anything was declassified as the govt maintains the status not Trump's brain.

[TwiceHorn 30738]

36 minutes ago, 956 Worldwide said:

I don’t understand the argument.  The government says “there are this many pages of documents marked with various classification markings. We don’t want anyone to see those and include for the special master review.”

Trump’s team never said (that I know of) they don’t exist or that the markings aren’t there, they just said that the documents didn’t exist, or that the markings were fake, or that they shouldn’t have been marked. In fact, they seemed to admit they were marked and existed when they demanded they be included in the special master review. 
 

So I’m not sure why these need to be presented to anyone or demonstrated to exist. 

It's not an argument.  It's mostly an academic type evidence question.

The classical way of authenticating or proving that something is what it purports to be is to offer a copy into evidence.  Obviously, that can't be done willy-nilly with classified stuff.   If the government didn't at least provide an affidavit that someone had reviewed the documents and they all bore classification markings, there's no evidence that they're classified, just a bare assertion, "attorney argument."  They very well may have and that affidavit is sealed.

And, affidavits are ultimately hearsay, and while they are competent evidence by rule for summary judgment, they're not always competent evidence.  Probably good enough for this type of proceeding.

Clearly Trump offered no evidence that the documents lacked marking or were declassified by him, just sniveling about how they could have been declassified, but, again, only "attorney argument."  But if the government only offered attorney argument, that's not evidence, either and you're kind of in a Mexican standoff.

[chainsaw 9456]

Is it true that Judge Cannon had said "just because DOJ says something is classified doesn't mean it's actually classified until the special master says so" or something like that? If so that's really disrespectful, borderline paranoid. A clear indication of her bias.

[TwiceHorn 30738]

10 minutes ago, lemonlime said:

I’m going off memory and certainly can’t remember every document in this case. But didn’t the fbi have a certified inventory of what they took from maralago including boxes containing documents stamped certified. Also, trump never argued in court that the documents the government stamped certified didn’t contain the stamp.

That sounds right.  You'd think the government would have something like that, at least.  It's just a kind of academic question.

As patent lawyers, in court, we often have to prove up "prior art," evidence that something was known or done at some time in the past, things like catalogs, instruction manuals, blueprints, webpages, etc.  It often raises some interesting authentication and hearsay questions, so I get intrigued by these kind of issues.

[Dahobbs 17098]

14 minutes ago, TwiceHorn said:

It's not an argument.  It's mostly an academic type evidence question.

The classical way of authenticating or proving that something is what it purports to be is to offer a copy into evidence.  Obviously, that can't be done willy-nilly with classified stuff.   If the government didn't at least provide an affidavit that someone had reviewed the documents and they all bore classification markings, there's no evidence that they're classified, just a bare assertion, "attorney argument."  They very well may have and that affidavit is sealed.

And, affidavits are ultimately hearsay, and while they are competent evidence by rule for summary judgment, they're not always competent evidence.  Probably good enough for this type of proceeding.

Clearly Trump offered no evidence that the documents lacked marking or were declassified by him, just sniveling about how they could have been declassified, but, again, only "attorney argument."  But if the government only offered attorney argument, that's not evidence, either and you're kind of in a Mexican standoff.

The government provided affidavits regarding what was recovered during the raid. Trump could have provided an affidavit indicating, for instance, what items he believed were taken but not listed, or an affidavit explaining that he mixed up all those documents so that personal items (e.g., attorney-client privileged material or medical records) could be in the folders labeled classified , or maybe an affidavit stating that he had declassified the documents (but, as you and the 11th circuit have noted, that is a bit of a red herring). These sorts of proceedings do generally get resolved like summary judgment, so affidavits and then like work so long as it is clear that they could be converted to an admissible form and there are no objections to them. And, if needed, the court can also take live testimony.  

There are two major things I think you have missed from beginning:

1) This involves a criminal proceeding in the investigatory phase. Almost all of the cases cited by Cannon (as I pointed out earlier in the thread), dealt with criminal proceedings that had completed. The ability to get such evidence returned or to refrain the government from using it is necessarily limited both due to equity and separation of powers. 

2) Trump had the burden of demonstrating an possessory interest in the documents. He kept arguing the reverse, i.e., that the government had to prove that Trump didn't have a possessory interest. Cannon bought it. The 11th Circuit wasn't having it. 

Edited September 22, 2022 by Dahobbs

[Goredho 17154]

10 hours ago, tx 3 putt said:

 

Trump flees to Hungary?  De Gaulle of that man.

[TwiceHorn 30738]

3 minutes ago, chainsaw said:

Is it true that Judge Cannon had said "just because DOJ says something is classified doesn't mean it's actually classified until the special master says so" or something like that? If so that's really disrespectful, borderline paranoid. A clear indication of her bias.

The whole order was premised on "why should we take the government's word on anything?"  I can actually get behind that reasoning in a general case, whether you want to call it disrespectful or paranoid, or whatever. 

Here is exactly what she said in denying the stay:

In isolating the described documents from the larger set of seized materials, the Motion
effectively asks the Court to accept the following compound premises, neither of which the Court
is prepared to adopt hastily without further review by a Special Master. The first premise
underlying the Motion is that all of the approximately 100 documents isolated by the Government
(and “papers physically attached to them”) are classified government records, and that Plaintiff
therefore could not possibly have a possessory interest in any of them. The second is that Plaintiff
has no plausible claim of privilege as to any of these documents [ECF No. 69 p. 7 (categorically
asserting that the “classified records at issue in this Motion . . . do not include personal records or
potentially privileged communications”)]. The Court does not find it appropriate to accept the

Government’s conclusions on these important and disputed issues without further review by a
neutral third party in an expedited and orderly fashion.

It's always a bit of an uphill battle to convince a court to treat anything as "categorically" anything, that is, under no conceivable circumstances could this be what the other side says it is.  Legal cases are all about "no conceivable circumstances" that become, in fact, the circumstances of the case requiring resolution.

It can be especially true when the court can't examine the evidence to determine that, while something may or may not be "categorically" as characterized, these specific documents are as characterized.

But, in the final analysis, she gave too much credit to Trump's FUD, and too little credit to the government's evidence and arguments.

[Dahobbs 17098]

1 minute ago, Goredho said:

Trump flees to Hungary?  De Gaulle of that man.

Well, from his interview, we know that he certainly isn't going hungry. 

[Underdog 27977]

By just thinking it, I gave Halle Berry the best 2 minutes of her life.  

[Kyrie Eleison 9273]

J. Dearie be like…

[washparkhorn 9894]

Key section of the Eleventh Cir. panel opinion (in addition to the standing argument that Trump had no property right to the documents).

No doubt the threat of prosecution can weigh heavily on the mind of someone under investigation. But without diminishing the seriousness of that burden, "if the mere threat of prosecution were allowed to constitute irreparable harm . . . every potential defendant could point to the same harm and invoke the equitable powers of the district court." United States v. Search of Law Office, Residence, and Storage Unit Alan Brown, 341 F.3d 404, 415 (5th Cir. 2003) (quotation omitted). If this concern were sufficient to constitute irreparable harm, courts' "exercise of [their] equitable jurisdiction would not be extraordinary, but instead quite ordinary." Id.

Cannon should be embarrassed. 

Edited September 22, 2022 by washparkhorn

[TwiceHorn 30738]

2 minutes ago, Dahobbs said:

The government provided affidavits regarding what was recovered during the raid. Trump could have provided an affidavit indicating, for instance, what items he believed were taken but not listed, or an affidavit explaining that he mixed up all those documents so that personal items (e.g., attorney-client privileged material or medical records) could be in the folders labeled classified , or maybe an affidavit stating that he had declassified the documents (but, as you and the 11th circuit have noted, that is a bit of a red herring). These sorts of proceedings do generally get resolved like summary judgment, so affidavits and then like work so long as it is clear that they could be converted to an admissible form and there are no objections to them. And, if needed, the court can also take live testimony.  

There are two major things I think you have missed from beginning:

1) This involves a criminal proceeding in the investigatory phase. Almost all of the cases cited by Cannon (as I pointed out earlier in the thread), dealt with criminal proceedings that had completed. The ability to get such evidence returned or to refrain the government from using it is necessarily limited both due to equity and separation of powers. 

2) Trump had the burden of demonstrating an possessory interest in the documents. He kept arguing the reverse, i.e., that the government had to prove that Trump didn't have a possessory interest. Cannon bought it. The 11th Circuit wasn't having it. 

Fair analysis.  I have focused on the cases granting special master review of mostly attorney-client privileged stuff, clearly pre-indictment, as is Richey v. Smith.  It's not completely clear to me where Rule 41 leaves off and "equity" picks up.  The fact that Trump's lawyers talked out of both sides of their mouth (Rule 41 provides a basis for jurisdiction, but we're not making a Rule 41 motion) certainly didn't help them.

[Goredho 17154]

Why won’t Brandon just think it all back to classified?!

[TwiceHorn 30738]

1 minute ago, washparkhorn said:

Key section of the Eleventh Cir. panel opinion (in addition to the standing argument that Trump had property right to the documents).

No doubt the threat of prosecution can weigh heavily on the mind of someone under investigation. But without diminishing the seriousness of that burden, "if the mere threat of prosecution were allowed to constitute irreparable harm . . . every potential defendant could point to the same harm and invoke the equitable powers of the district court." United States v. Search of Law Office, Residence, and Storage Unit Alan Brown, 341 F.3d 404, 415 (5th Cir. 2003) (quotation omitted). If this concern were sufficient to constitute irreparable harm, courts' "exercise of [their] equitable jurisdiction would not be extraordinary, but instead quite ordinary." Id.

Cannon should be embarrassed. 

That was the part of the analysis I thought she most grievously fucked up.  But I was worried that the 11th Circuit wouldn't change it because of the nature of appellate review or because Trump.

[Sawbonz 26742]

8 minutes ago, Underdog said:

By just thinking it, I gave Halle Berry the best 2 minutes of her life.  

Then why not give her a full hour you selfish bastard

[chainsaw 9456]

1 minute ago, TwiceHorn said:

The whole order was premised on "why should we take the government's word on anything?"  I can actually get behind that reasoning in a general case, whether you want to call it disrespectful or paranoid, or whatever. 

Here is exactly what she said in denying the stay:

In isolating the described documents from the larger set of seized materials, the Motion
effectively asks the Court to accept the following compound premises, neither of which the Court
is prepared to adopt hastily without further review by a Special Master. The first premise
underlying the Motion is that all of the approximately 100 documents isolated by the Government
(and “papers physically attached to them”) are classified government records, and that Plaintiff
therefore could not possibly have a possessory interest in any of them. The second is that Plaintiff
has no plausible claim of privilege as to any of these documents [ECF No. 69 p. 7 (categorically
asserting that the “classified records at issue in this Motion . . . do not include personal records or
potentially privileged communications”)]. The Court does not find it appropriate to accept the

Government’s conclusions on these important and disputed issues without further review by a
neutral third party in an expedited and orderly fashion.

It's always a bit of an uphill battle to convince a court to treat anything as "categorically" anything, that is, under no conceivable circumstances could this be what the other side says it is.  Legal cases are all about "no conceivable circumstances" that become, in fact, the circumstances of the case requiring resolution.

It can be especially true when the court can't examine the evidence to determine that, while something may or may not be "categorically" as characterized, these specific documents are as characterized.

But, in the final analysis, she gave too much credit to Trump's FUD, and too little credit to the government's evidence and arguments.

I'm all for being skeptical of the government. But it seems like there's an established protocol for designating classified documents as classified, and that protocol involves cover sheets in the same way a school district or university laptop has some barcode affixed to it. Now if I were to go to the library at UT and steal a laptop from the university, I could try and argue "no that laptop is mine" but it would not go very far since the laptop has the barcode on it and very clearly says "property of the university of texas" on it.

In that hypothetical situation, I should be laughed out of the courtroom for even suggesting that a laptop belonging to anyone other than UT could or would have a UT barcode affixed to it. Are we really going to second-guess the true owner here? Without any other evidence of tampering?

That to me seems to be what Cannon is saying. That a meticulously tracked document that is meticulously tracked for very good reasons might not actually belong to the people who did that meticulous tracking. That is gaslighting straight up.

[TwiceHorn 30738]

Probably also worth noting that GQP just asked Garland to appoint a special prosecutor in the Hunter Biden case.

 

Like clockwork.

[Beantown Express 2.0 6492]

2 hours ago, Dnaguy said:

Wait. Are you saying rich / monied people get better treatment in the criminal justice system?

What about jobs or schools? Do they get better ones of those too?

IDK man. Something So systemically and structurally wrong with our system of government, economy, and justice would have been dealt with by Congressional action, no?. It seems kind of antithetical to the values of the republic that rich people get more rights than those with less.

you better check your facts before you start impugning the shining city on the hill like that.

Yeah, rich people may get all of that but do they get better access to basic things like health care also?  I don’t think so!

 

[mdmost 42182]

I declassified it in my head

[TwiceHorn 30738]

Just now, chainsaw said:

I'm all for being skeptical of the government. But it seems like there's an established protocol for designating classified documents as classified, and that protocol involves cover sheets in the same way a school district or university laptop has some barcode affixed to it. Now if I were to go to the library at UT and steal a laptop from the university, I could try and argue "no that laptop is mine" but it would not go very far since the laptop has the barcode on it and very clearly says "property of the university of texas" on it.

In that hypothetical situation, I should be laughed out of the courtroom for even suggesting that a laptop belonging to anyone other than UT could or would have a UT barcode affixed to it. Are we really going to second-guess the true owner here? Without any other evidence of tampering?

That to me seems to be what Cannon is saying. That a meticulously tracked document that is meticulously tracked for very good reasons might not actually belong to the people who did that meticulous tracking. That is gaslighting straight up.

The classified documents are certainly a special case with a lot of ins, outs, and what-have-yous.

Because they are almost 100% generated by the government, classified by the government, handled solely within the government, and the subject of a comprehensive regulatory scheme that prevents their use in court or examination by laypeople, they're the kind of thing you really do have to kind of take the government's word on them.

[Underdog 27977]

5 minutes ago, Sawbonz said:

Then why not give her a full hour you selfish bastard

I didn’t want her too tired from making me a sandwich afterwards. 

[Red Five 40125]

2 minutes ago, TwiceHorn said:

they're the kind of thing you really do have to kind of take the government's word on them.

.... that they don't belong in the basement of a beach club? Huh, well ok I guess. 

[TwiceHorn 30738]

So, I still thing the outcome of this is going to work to the government's benefit in pretty much every respect.

 

The question in my mind now is does Trump's bullshit here make it more or less likely that they indict over this?

[atomheartbevo 88756]

I have a thing for Stephanie, but that’s beside the point, hopefully Trump sees this happened on the day that a lot of shit went against him..

 

[TwiceHorn 30738]

2 minutes ago, Red Five said:

.... that they don't belong in the basement of a beach club? Huh, well ok I guess. 

That was never the issue here.  People keep conflating the wrongdoing with the procedure to evaluate the nature of the documents and any rights and interests that might pertain to them.

In a roughly analogous case, you don't excuse 4th amendment violations just because the defendant is obviously guilty.  Well, for now you don't.

[Js1 82451]

3 minutes ago, atomheartbevo said:

I have a thing for Stephanie, but that’s beside the point, hopefully Trump sees this happened on the day that a lot of shit went against him..

 

[Dahobbs 17098]

7 minutes ago, TwiceHorn said:

The classified documents are certainly a special case with a lot of ins, outs, and what-have-yous.

Because they are almost 100% generated by the government, classified by the government, handled solely within the government, and the subject of a comprehensive regulatory scheme that prevents their use in court or examination by laypeople, they're the kind of thing you really do have to kind of take the government's word on them.

I'll add on to the affidavit issue that Trump could have submitted an affidavit saying "I cannot tell whether the documents the government retains are truly the classified documents as opposed to my personal documents because they will not let me see them." Personally, I don't think that is sufficient. But it screams to either his lawyer's incompetence or his knowledge of the opposite that he didn't even take that minimum step. 

[Kyrie Eleison 9273]

2 hours ago, TwiceHorn said:

One curious thing. What stood out to me about  the 11th circuit opinion was if the lower court didn't find callous disregard for Trump's rights, that was pretty much the end of the inquiry.

The government never really argued that as a dispositive factor, and Trump didn't have to wriggle away from it.  So, yet another instance of a judicial decision turning on a "surprise" factor. 

Edit:  digging a little deeper, the 5th Circuit case from which callous disregard comes, Richey v. Smith, doesn't seem really to give that factor quite the dispositive weight:

First, and perhaps foremost, is the question whether the motion for return of property accurately alleges that government agents — in this case agents of the IRS — in seizing the property displayed "`a callous disregard for the constitutional rights of the taxpayer.'" 497 F.2d at 34. Other factors to be considered are:

Richey v. Smith, 515 F.2d 1239, 1243 (5th Cir. 1975).  "First, and perhaps foremost" doesn't exactly suggest that if there's not callous disregard you can just stop right there.

It will be interesting to see what the merits panel decides as to the whole order.  It sure looks like they're going to trash it altogether, but stranger things can happen. 

The order was certainly furthest out on a limb when dealing with the classified documents.  But it raised an oddball issue:  other than just saying so,  probably under oath (I have reviewed these documents and on the first page of every single one, it says "Top Secret") how the hell do you prove something is classified if you don't submit a document for inspection?

In any event, I am glad the 11th Circuit did what it did.  I was worried about it primarily because of the nature of appellate review, but also due to "Trumpy" judges.  I'm not convinced that some or even most Trump appointees are in the bag for Donald Trump, but it will always be a lingering concern.

as a criminal lawyer myself, you're overthinking this from your civil perspective.  relax...no need to read so much into things in this area of law.

[TwiceHorn 30738]

1 minute ago, Kyrie Eleison said:

as a criminal lawyer myself, you're overthinking this from your civil perspective.  relax...no need to read so much into things in this area of law.

Well, this is a civil proceeding, after all.

[Hookah Horns 2923]

3 hours ago, 956 Worldwide said:

The appellate ruling is heartening. I’m no legal scholar and I know overturns on appeals happen. I also know judges don’t generally like them to happen.  
 

It strikes me that a slap down of this extent doesn’t build confidence in our judiciary.  It wasn’t really a fine point of law, this reads to me as the legal equivalent of “Judge Cannon is wrong about everything and should feel bad.”  So my choices on Cannon are either that she’s really bad at law stuff or she decided to show extreme deference to a former POTUS out of either fear or loyalty. 
 

And I wonder what kind of law people without the resources of the US DOJ are getting when they go into her courtroom. 

It clearly shows Cannon to be compromised and corrupt, but I think two out of the three judges on the panel being Trump appointees helps restore confidence. I'm pleasantly surprised with this result. Although I wouldn't be shocked if the fubar scotus reverses. 

[TwiceHorn 30738]

3 minutes ago, Dahobbs said:

I'll add on to the affidavit issue that Trump could have submitted an affidavit saying "I cannot tell whether the documents the government retains are truly the classified documents as opposed to my personal documents because they will not let me see them." Personally, I don't think that is sufficient. But it screams to either his lawyer's incompetence or his knowledge of the opposite that he didn't even take that minimum step. 

Yep.  And, I suppose if they got to the point of putting an affidavit in front of him to sign, he would have pitched a megafit about why it didn't say he had a standing order of declassification or telepathically declassified or some shit.

Having him sign an affidavit is not as risky as putting him on the stand, but I bet it's more dicey with Trump than we might initially think.

[Kyrie Eleison 9273]

3 minutes ago, TwiceHorn said:

Well, this is a civil proceeding, after all.

[TwiceHorn 30738]

2 minutes ago, Hookah Horns said:

It clearly shows Cannon to be compromised and corrupt, but I think two out of the three judges on the panel being Trump appointees helps restore confidence. I'm pleasantly surprised with this result. Although I wouldn't be shocked if the fubar scotus reverses. 

Well, it does clearly show that she made up her mind that a master was the appropriate thing to do and she wasn't going to carefully analyze the law or make any hard decisions about the documents themselves and actual privilege law.

Whether that's compromised, corrupt, or just dumb/prejudiced remains open for debate.  I'm glad the 11th decided to be decisive about it and I think the government did a pretty good job teeing up a relatively clean issue for them to decide instead of the morass of things dealt with in the order more broadly.  It sets up the appeal on the merits nicely.  Now I wonder about the timing, but it doesn't bother me much because I think the master is going to go with the government nearly 100%.

What might happen, and I think this could be great, is that the Dearie rules on everything in favor of the government and before Cannon can figure out a way to overrule it, the 11th rules that it never should have happened in the first place.  Best of both worlds.

[Js1 82451]

14 minutes ago, Hookah Horns said:

It clearly shows Cannon to be compromised and corrupt, but I think two out of the three judges on the panel being Trump appointees helps restore confidence. I'm pleasantly surprised with this result. Although I wouldn't be shocked if the fubar scotus reverses. 

I can see the liberals and Roberts ruling against him and making Kav following Roberts. The Trump appointees have no reason to be scared of Trump.  He can’t fire them if he’s re-elected. What, will the GOP get so mad they’ll impeach him? 😂 No please, don’t do that!

They owe Trump nothing - he picked them off a list that Mitch has had in his pocket for years.  Mitch would not mind if someone else helped get the Trump headache off his plate and he can call in a favor to Kav. 

Edited September 22, 2022 by Js1

[TexasHooch 4952]

Sorry if this has been covered, but does anyone know if any of the New York loan fraud occurred prior to any of Trump's bankruptcies.  Seems like a really shitty situation could be even worse if it turns out he actually defaulted on loans that were fraudulently obtained.

[Pato del Muerto 51920]

11 minutes ago, TwiceHorn said:

Whether that's compromised, corrupt, or just dumb/prejudiced remains open for debate.

Which of those 3 are acceptable for a federal judge?  Or any judge?

[Hookah Horns 2923]

7 minutes ago, Js1 said:

I can see the liberals and Roberts ruling against him and making Kav following Roberts. The Trump appointees have no reason to be scared of Trump.  He can’t fire them if he’s re-elected. What, will the GOP get so mad they’ll impeach him? 😂 No please, don’t do that!

They owe Trump nothing - he picked them off a list that Mitch has had in his pocket for years.  Mitch would not mind if someone else helped get the Trump headache off his plate and he can call in a favor to Kav. 

Cannon had no reason to fear him either but still did his bidding.

[956 Worldwide 33959]

52 minutes ago, Dahobbs said:

The government provided affidavits regarding what was recovered during the raid. Trump could have provided an affidavit indicating, for instance, what items he believed were taken but not listed, or an affidavit explaining that he mixed up all those documents so that personal items (e.g., attorney-client privileged material or medical records) could be in the folders labeled classified , or maybe an affidavit stating that he had declassified the documents (but, as you and the 11th circuit have noted, that is a bit of a red herring). These sorts of proceedings do generally get resolved like summary judgment, so affidavits and then like work so long as it is clear that they could be converted to an admissible form and there are no objections to them. And, if needed, the court can also take live testimony.  

There are two major things I think you have missed from beginning:

1) This involves a criminal proceeding in the investigatory phase. Almost all of the cases cited by Cannon (as I pointed out earlier in the thread), dealt with criminal proceedings that had completed. The ability to get such evidence returned or to refrain the government from using it is necessarily limited both due to equity and separation of powers. 

2) Trump had the burden of demonstrating an possessory interest in the documents. He kept arguing the reverse, i.e., that the government had to prove that Trump didn't have a possessory interest. Cannon bought it. The 11th Circuit wasn't having it. 

The thing is, this can’t really happen.  Classified material does get a cover sheet (which is not classified itself and says so on the sheet). Classified documents have the classification on the document itself, so that it’s still clear in case it gets separated from the cover sheet. And the stuff itself can be super specific, to the point of having different paragraphs on the same page bearing different markings.  And this is also quite clear— if original material isn’t marked classified, it isn’t (absent malfeasance like copying stuff that is onto a different document). 
 

So DJT could staple his cialis prescription or an inventory of Junior’s dildo collection to a cover sheet and that would still not be included in the FBI’s classified document list. 

[Js1 82451]

1 minute ago, Hookah Horns said:

Cannon had no reason to fear him either but still did his bidding.

Maybe she’s just stupid/incompetent or the high profile case was too much for her.