Merrick Garland watching 1/6 hearings
Top former Republican officials spanning every Republican presidency back to Ronald Reagan have filed a brief in support of the DOJ’s appeal on the Trump classified docs case.
Democracy 21 summarized the amicus brief to the 11th Circuit Court:
First, the District Court erred in holding that former President Trump could under any circumstances prevail as to the approximately 100 classified documents at issue in the Justice Department’s appeal. Those documents are the property of the U.S. Government.
Former President Trump, according to the brief, “has no right to possess the 100 or so classified records at issue here because no private citizen has a ‘possessory interest’ in the U.S. government’s classified records.”
“This proposition is not controversial,” the brief notes, “even former President Trump’s own brief opposing the Government’s request for a stay did not argue he has a possessory interest in classified documents.”
Because these documents belong to the U.S. Government and former President Trump has no right to possess them, the brief notes, “there is nothing for the special master to do” in regard to the classified documents.
Second, the appointment of a special master was clearly improper at least insofar as the special master was empowered to decide claims of executive privilege. Executive privilege, the brief notes, cannot be asserted – as former President Trump proposes – against the Executive Branch itself.
That is particularly true in this matter, the brief notes, where the Executive Branch has sought the return of its own classified records – records that belong to the U.S. Government – in connection with its ongoing core executive and national security functions.
The appointment of a special master was, the brief notes, “legal error. This error is most egregious in regard to the 100 or so classified documents.”
Executive privilege, according to the brief, “is based on the need for confidentiality in communications and deliberations with the President in the exercise of executive functions. … [I]t would be an especially bizarre perversion of the privilege to allow a former President to use it to thwart a core executive function like a criminal investigation into mishandling of classified information.”
Further, the brief once again emphasizes, any records subject to executive privilege belong to the U.S. Government, not to former President Trump.
Third, a former President is entitled to no greater protection under the law than any other citizen.
The District Court’s analysis, the brief points out, “which gave greater weight to the reputation of a former President than to the reputation of any other citizen, and greater weight to that personal reputation than to national security concerns, is fundamentally inconsistent with the basic tenets of U.S. law.”
In addition, the brief states, concern for reputational harm that the District Court noted in its decision is not a valid basis for enjoining a criminal investigation, “especially one that is inexorably intertwined with a national security damage assessment.”
There is no basis, according to the brief, for applying a different rule to former President Trump, “effectively endowing him with greater procedural rights than those afforded to other citizens.”
To do so, the brief continues, would belie the fundamental principal established in United States v. Lee (1882), that “[a]ll the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.”
Legal experts from across the spectrum have stated that Trump’s appointed judge got it wrong when she ruled in favor of the special master and said that there could be executive privilege claims applied to the ex-president.
If the DOJ gets its appeal heard in front of a neutral court, the odds are good that it will prevail. Judge Cannon’s ruling was so lacking in legal foundation and merit that even a court with a majority of Trump-appointed judges will find it difficult to uphold her decision.
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