The Justice Department will likely eventually appeal the entirety of Judge Cannon’s order. The DOJ limited its request on appeal to the issue that DOJ asserts most endangers the country. From Reuters:
In the filing before the U.S. Court of Appeals for the 11th Circuit, the Justice Department said the circuit court should halt part of the lower court decision that prevents prosecutors from relying on the classified documents in their criminal investigation into the retention of government records at Trump’s Mar-a-Lago residence in Palm Beach after his presidency ended.
And, importantly:
The government asked the appeals court to rule on the request “as soon as practicable.”
Appellate courts move slowly. The process can take six to nine months on a fairly fast criminal appeal. But appellate courts have the ability to move very quickly, too. After all, they control their own schedule. The operative word “practicable” emphasizes the need for speed while also sufficient preparation by both parties.
The Court’s response to the scheduling request may reveal the court’s inclinations about the substantive ruling below and may reveal the direction of its ultimate ruling. Judges are people. They have heard about the controversial ruling, they know this issue on appeal is one that is almost unheard of, and most importantly, they know that DOJ believes this is a matter critical to national security. They know what’s coming.
If the 11th Circuit panel believes the case is “probably” wrongly decided and that DOJ should be allowed to go forward in this matter, the Court is more likely (in my opinion) to grant a very expedited and aggressive schedule. Perhaps it could schedule the matter so that its ruling is out within a month, perhaps even sooner. But if the court decides that “practicable” means three to four months… that is likely a bad sign for DOJ. Many would take that to indicate that the panel believes the ruling is probably lawful and that it is not that harmful to national security.
The above is speculation, but it is speculation that will be in accord with what most of the legal community will also believe.
Even the speed with which the court issues its scheduling order may be telling. Will the scheduling order be issued Tuesday or two weeks from now? It is hard to tell, but most lawyers would see it as telling.
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