Legal experts see more challenges for Trump in records dispute
'It’s really hard to lose an appeal more decisively than Trump just did' — ex-Solictor General
Former President Donald Trump’s court battle over presidential records he claims to have declassified was dealt another blow by the Eleventh Circuit this week and some legal experts doubt the former president will get the legal recourse he seeks.
Former Acting U.S. Solicitor General Neal Katyal said he thinks the Eleventh Circuit decision granting the government’s motion to keep using the roughly 100 records it identified as classified in its criminal probe while the appeal plays out is “extremely strong.”
“It’s really hard to lose an appeal more decisively than Trump just did,” Katyal said.
The ruling, he said, is “not only a straight repudiation of every legal claim Trump has made since Mar a Lago [was] searched, it's a boomerang.”
Katyal highlighted the appellate panel's finding that Trump has not even tried to show he has a “need to know” the information contained in the purportedly classified documents, and that “even if he had, that, in and of itself, would not explain why plaintiff has an individual interest in the classified documents.”
He said the circuit judges “powerfully” explain in their ruling why criminal and national security implications related to the records dispute “are so massive.” And he notes that the 29-page opinion was unanimously agreed upon by an Obama appointee and two Trump-appointed judges.
Wednesday’s Eleventh Circuit ruling comes after the FBI raided Trump’s Mar-a-Lago compound on Aug. 8 and seized more than 11,000 documents, including at least 103 documents with classification markings, according to records unsealed by the court last month.
The former president brought a motion for judicial oversight of the government’s review of the seized materials last month and U.S. District Judge Aileen Cannon granted his request for a special master on Sept. 5 — prompting a swift appeal to the Eleventh Circuit by the Department of Justice, which also filed a motion to stay part of her order.
Trump argued in court filings that the Atlanta-based appellate court lacks jurisdiction over the appeal. But the circuit judges agreed with the government’s argument that Cannon likely erred in her finding that the southern Florida federal court had jurisdiction over Trump’s motion for judicial oversight.
“The absence of this ‘indispensab[le]’ factor,” the circuit judges wrote, “is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here.”
Laurence Tribe, a professor emeritus at Harvard Law School, said it was “refreshing” to read the Eleventh Circuit opinion, which he described as a "demolition" of both Trump and Judge Cannon's arguments that he describes as "ludicrous evasions of settled law and indisputable fact."
“It reads a lot like a stern but polite reprimand of a child caught red handed who needs to be read the riot act,” he said,
Katyal highlighted part of the Eleventh Circuit’s ruling, in which the judges found that Cannon erred when she determined Trump had an interest in some of the seized materials because it included “medical documents, correspondence related to taxes, and accounting information.”
The appellate panel found that “none of those concerns apply” to the approximately 100 purportedly classified documents at issue.
“In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal,” the judges wrote. “For our part, we cannot discern why plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings.”
U.S. District Judge Raymond Dearie, who is tasked with reviewing the materials uncovered in the FBI raid, released his case management plan on Thursday following the 11th Circuit decision.
Under the plan, he has asked Trump for a detailed list of the seized items and annotations to support any claims the items fall under attorney-client privilege, executive privilege or the Presidential Records Act.
Katyal said the circuit judges’ ruling “says what all of us have been saying, the whole declassification thing is a red herring.”
Former federal prosecutor Neama Rahmani told Courthouse News last week the classification dispute was a red herring that would not impact potential charges under the Espionage Act or Presidential Records Act.
“Attorney General Merrick Garland will … need to make the ultimate decision of whether to charge Trump or not,” Rahmani said.
As Katyal sees it, the appeals court ruling “justified a prosecution.”
Trump is under investigation for removing government records from the White House at the end of his single term as president on Jan. 20, 2021, and storing them at his 12-acre Mar-a-Lago estate in West Palm Beach.
Trump, for his part, denies any wrongdoing and he told Fox News’ Sean Hannity on Wednesday night that, “if you’re president of the United States, you can declassify just by saying ‘it’s declassified,’ even by thinking about it because you’re sending it to Mar-a-Lago or wherever you’re sending it.”
Katyal meanwhile said, “Trump can try to go to the U.S. Supreme Court but it's a loser every day of the week.”