Trump's team loses in 11th Circuit

Trump's theory of declassification-by-thought also seems like a loser

A panel of the U.S. Court of Appeals for the Eleventh Circuit has granted the Justice Department’s request to stay (block) the portion of Judge Aileen Cannon’s decision that prevented the DOJ from withholding 100 documents bearing classification markings from a special-master review and from using these documents in the ongoing criminal investigation of Donald Trump.

The decision was unanimous. Two of the three judges on the panel were appointed by Trump.

The panel’s per curium opinion is here. I’m far from an expert in this area, but the reasoning seems sound.

The panel decided that the factors to be weighed in deciding whether to stay a district court’s ruling all favor granting the DOJ’s request for a stay. Specifically: (1) the Justice Department has made a strong showing that it will succeed on the merits of its claim that Judge Cannon erred on the aspects of the ruling the DOJ challenges; (2) the government will be irreparably injured absent a stay of Cannon’s order; (3) issuance of the stay will not injure the other parties interested in the proceeding; and (4) the public interest lies with granting the stay.

In deciding the first factor — likelihood of success on the merits — the court concluded: (1) the Justice Department did not callously disregard Trump’s constitutional rights; (2) Trump lacks an individual interest or need for the documents; (3) Trump would not be irreparably harmed by the non-return of the documents; and (4) Trump has an adequate remedy at law for the redress of his grievance.

The first of these findings was not disputed, either by Trump or by Judge Cannon. The panel thought the absence of callous disregard for Trump’s rights was sufficient to establish the DOJ’s likelihood of success, but considered the other factors anyway.

On the question of whether Trump declassified the documents, the panel, though perhaps signaling skepticism, said that the issue is immaterial to the narrow questions before it:

The record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents. [citation omitted] 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. So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.

Meanwhile, Trump himself claimed on television that he “declassified everything.” He presented a novel theory.

Last night, Trump told Sean Hannity that presidents can declassify documents just by “thinking about it.” In response to Hannity’s question about the process Trump used to declassify the documents in dispute, the ex-president said:

There doesn't have to be a process, as I understand it. You know, different people say different things, but as I understand it there doesn't have to be.

If you're the 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 to wherever you’re sending it.”

There doesn't have to be a process. There can be a process, but there doesn't have to be. You're the president, you make that decision. . .I declassified everything

No one can verify what a president thought (and no, sending documents to Mar-a-Lago isn’t evidence that Trump thought about declassifying them — it’s just evidence that he took the documents). Thus, Trump is saying, in essence, that a president can have documents be deemed declassified simply by claiming he thought about declassifying them.

I hope Trump’s team has a better argument than this. It’s true that a president has unlimited power to declassify. But he also has unlimited power to pardon. Yet no rational person would contend that thinking about pardoning, say, Rudy Giuliani is tantamount to pardoning him. Even Trump intending to pardon Giuliani would not amount to pardon.

Similarly, it’s difficult to accept the theory that thinking about declassifying a document — or affirmatively intending to declassify it — accomplishes declassification. A president, it seems to me, must perform the act — some act —of declassifying. And moving documents from one location to another isn’t an act of declassifying.

Law professor Paul Rosenzweig, who served as senior counsel to Ken Starr during the Whitewater investigation, put it this way:

The entire point of a classification system is to tell people how to treat certain types of documents — that is, what precautions to take with respect to their handling. A classification system where only the ex-President knows their true classifications in his heart is the very definition of absurdist anarchy.

By agreeing with the Eleventh Circuit panel’s reasoning and disparaging Trump’s assertion about declassification, I’m not saying that Trump should be prosecuted for taking White House records, including some that were classified, to Mar-a-Lago. Prosecuting former presidents is unprecedented, and there’s a good argument that if we’re going to start prosecuting them, the practice should not commence with process crimes under obscure statutes, absent the infliction of real harm on the country.

I suspect that, technically, the DOJ has a credible case against Trump. But Ken Starr had a credible case against Hillary Clinton (who was only a First Lady) for her less innocent handling of documents relevant to a criminal investigation. Loretta Lynch may have had a sound case against Hillary, as well, for having classified documents on her private server.

Starr restrained himself. The left demonized him anyway.

I suspect that Merrick Garland will not restrain himself. In that case, the left will lionize him.

NOTE: I have modified this post from the original to reflect (and address) Trump’s suggestion that sending the documents to Mar-a-Lago somehow shows that he thought about declassifying them (or intended to do so) and that this thought (or intent) would amount to declassification.