Everyone is using “loose” language concerning DOJ’s motion filed yesterday in the district court in front of the increasingly infamous Judge Cannon. The Justice Department did not file an appeal, no matter how many media outlets reported it as such. Nor did it file a motion for reconsideration, the type that invites the judge to reverse herself. Instead, the Justice Department deftly used a “Motion for a Partial Stay Pending Appeal,” to ask Judge Cannon to merely “stay” that portion of her order that is most devastating to the government, the portion that prohibits all further criminal investigation (Never, ever, seen that) from materials collected in the search, and asking for that stay because it intends to appeal the entire matter, at least as it now stands. Stays are granted where there would otherwise be “irreparable harm,” and the DOJ believes it has met that standard.
Now that we have the matter properly set out, it should be noted that the Justice Department told the court that it believed that Trump may still be holding classified documents, though they don’t give a location.
From the Motion itself by way of Reuters:
“Without a stay, the government and the public will also suffer irreparable harm from the undue delay to the criminal investigation,” prosecutors wrote.
“The injunction against using classified records in the criminal investigation could impede efforts to identify the existence of any additional classified records that are not being properly stored – which itself presents the potential for ongoing risk to national security,” they added.
They couldn’t possibly be clearer: “Judge, our investigation has led us to believe that there may well be more classified documents hanging out, unguarded, perhaps at Bedminster, Trump Tower, wherever. We don’t know and that’s why we need to continue to investigate. This involves national security.” Normally, judges are loathed to do anything that touches upon national security matters, which is one reason why the term is used over and over in the Motion.
To be sure, the fact that there may be other classified materials isn’t the only reason offered to stay Cannon’s order. Indeed, it’s probably not even the most compelling reason. As this site has written before, the idea that the FBI’s counter-intelligence agents can conduct a national security review without further investigating this as a criminal matter is absurd, and the Justice Department said as much, though with a bit more tact:
“The ongoing Intelligence Community classification review and assessment are closely interconnected with — and cannot be readily separated from—areas of inquiry of DOJ’s and the FBI’s ongoing criminal investigation.”
One doesn’t need a day of legal training to understand DOJ’s point. Investigating the breaches to our national security is – by its very nature – a concurrent criminal investigation, and – clearly, the criminal investigation is what most informs the national security breach.
Judge Cannon has ordered Trump’s attorneys to respond by Monday and will issue her resulting order next week. Perhaps Cannon has since grasped that in her zealousness to help Trump, she flew a little too close to the sun, got singed, and will reel it in a bit and grant DOJ’s motion as a “halfway” measure. Perhaps she goes full MAGA.
We won’t know until next week, but we will at least be starting with the proper legal framework and terminology while also knowing that the DOJ isn’t naive enough to think that Trump isn’t capable of still attempting to hide classified documents.
@JasonMiciak believes a day without learning is a day not lived. He is a political writer, features writer, author, and attorney. He is a Canadian-born dual citizen who spent his teen and college years in the Pacific Northwest and has since lived in seven states. He now enjoys life as a single dad of a young girl, writing from the beaches of the Gulf Coast. He loves crafting his flower pots, cooking, and currently studies philosophy of science, religion, and non-math principles behind quantum mechanics and cosmology. Please feel free to contact for speaking engagements or any concerns.
