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Mar-a-Lago: Why is an appeals court saying Trump’s claims that he declassified the documents are a “red herring”?



CNN

Vague claims by former President Donald Trump that he may have declassified documents brought to Mar-a-Lago hit a brick wall as litigation over the search plays out in court.

The US Court of Appeals for the 11th Circuit, in a unanimous opinion by an appeals panel that included two Trump appointees, said any uncertainty about whether the more than 100 documents were still classified was a “red herring.” “, since it was allowed on Wednesday that the Justice Department’s criminal investigation into them will resume.

Serving as a split screen for the 11th Circuit’s ruling was an interview Trump gave to Sean Hannity of Fox News, where he tripled down on the idea that he declassified, or could have declassified, the documents in question.

“If you’re the president of the United States, you can declassify it just by saying it’s declassified,” Trump said. “Even just thinking about it because you’re shipping it to Mar-a-Lago or wherever you’re shipping it.”

Trump’s sweeping claims go far beyond the murky way his lawyers have questioned whether the documents obtained in the search were still classified. In court, his team almost ridiculously avoided saying that Trump himself declassified the documents and has resisted invitations to do so.

This dynamic was not lost on the 11th Circuit. The court highlighted the lack of evidence showing the declassification of the documents, even though the court had determined that whether the materials had been declassified was irrelevant to the department’s attempt to revive its investigation.

At the heart of the dispute before the appeals court was whether the materials were Trump’s possessions that were of a level of personal importance that would justify keeping them out of the hands of the Justice Department.

Trump’s arguments about why those materials should be withheld from investigators were so far-fetched that few court observers were surprised his claims were met with a buzzsaw in the appeals court.

The 11th Circuit “responded to both the framing of the issue and the issue itself,” said Steve Vladeck, a CNN legal analyst and professor at the University of Texas School of Law. The court was saying, “This is not the right way to think about it, but if it was, Trump would still lose.”

US District Judge Aileen’s acceptance of Trump’s claims Cannon, who has put the DOJ’s criminal sampling of the documents on hold while a so-called special master reviews them, has drawn criticism from a wide swath of legal experts.

The appeals court, which had been asked to intervene by the Justice Department, pointedly pointed out that Cannon had failed to explain why the documents in question would be material in which Trump would have a personal interest.

“For our part, we cannot discern why the plaintiff would have an individual interest or need any of the 100 documents with classification marks,” the appeals court said.

The appellate court opinion included an explanation of what the classification markers indicate, citing an executive order that states classified documents are “owned by, produced by or for, or … controlled by the United States Government.” USA”.

Declassifying those documents would not change their content or make them personal, the appeals court said.

“Thus, even if we were to assume that plaintiff declassified some or all of the documents, that would not explain why he has a vested interest in them,” the 11th Circuit wrote.

“What they’re saying here is that Trump’s claim on the return of the documents hinges on whether or not the documents are personal to him — his medical records, for example, whether they’ve been seized, or perhaps the client’s privilege of the lawyer”, Paul. Rosenzweig, an expert on national security law, Thursday on CNN’s “At This Hour with Kate Bouldan.”

“But classified information by its nature, even if declassified, is still government information and not personal information of the President of the United States. And you can’t turn that around, not even in his own mind, just by saying it,” said Rosenzweig, who was a former prosecutor and also worked at the US Department of Homeland Security.

The 11th Circuit was able to move quickly to resolve the dispute because the Justice Department went to the appeals court with a very narrow and clear request, according to Brandon Van Grack, a former attorney for the Justice Department’s national security division.

“The singular question was whether there was any reason the Justice Department couldn’t possess and use these documents marked as classified,” Van Grack said. “Legally it was so clear that there cannot and should not be that restriction”

Even as the appeals court said it didn’t matter whether the documents had been declassified, the panel went to great lengths to disarm the logic advanced by the Trump team to question the documents’ classification status.

Wednesday’s opinion came after Judge Raymond Dearie, the lead judge who was chosen as a special master, expressed deep skepticism at a hearing Tuesday about how Trump’s team was approaching the issue of declassification.

The appeals court noted that the court record “contains no evidence that any of these records have been declassified.” The panel also referenced how Trump’s attorneys apparently objected to a request by Dearie that they reveal what specifically seized material had been declassified.

The 11th Circuit also exposed the series of events that brought the case to the appeals court. In that narrative, the panel highlighted facts that further undermined Trump’s confidence in the notion that he could have declassified the documents.

His opinion recounted the previous two tranches of documents obtained from the Florida complex that included materials with classified markings, as well as the failure of the Trump team to take action to block FBI access to the first tranche, recovered by the National Archives in January. Trump also made no claim of privilege when his representatives submitted documents in June that they said brought them into compliance with a grand jury subpoena requiring documents marked classified.

That discussion was “emblematic of how much of the opinion is intended for the public,” Vladeck said, noting that the appeals court was also beefing up its reasoning about the possibility of an appeal to the US. Supreme Court

Along with these details about the documents themselves, the 11th Circuit’s opinion lent notable weight to a statement the FBI filed in the case explaining the national security risks posed by the pause in the criminal investigation of the 100 documents.

“They spend a lot of time adopting the Justice Department’s framework of the problem and factual descriptions that demonstrate a broader concern about the conduct in question,” Van Grack said.

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