The government has filed a reply brief in support of its motion for a partial stay.
https://storage.courtlistener.com/recap ... 88.0_5.pdf
Like the initial brief, it's extremely good: respectful, restrained, concise, and devastating.
All of Trump's papers have contained
great big gobs of flaming bullshit issues that the government hasn't previously highlighted, such as Trump's utter failure to support his factual contentions with any form of evidence. That's a failure which, for any ordinary litigant seeking injunctive relief, especially this unprecedented relief, would have provoked a preemptory denial coupled with a benchslap that knocked his lawyers silly. Like many other lawyers, I've been squirming in my seat at the government's failure to call out Trump's lawyers for obvious howlers.
However, the pacing of argument is always a judgment call, and it looks as though the government called it right here. They have deftly given Trump's lawyers enough rope to hang themselves, and now they have <block that metaphor!> brought down the hammer hard.
For example:
But even if Plaintiff had declassified any of these records while he was President—a proposition that Plaintiff does not specifically assert in any of his filings in these proceedings, in a sworn declaration, or through any evidence—any record bearing classification markings was necessarily created by the government and, therefore, is not Plaintiff’s personal property.
And this:
Plaintiff’s attempts to change the subject by holding out the possibility that he could have declassified some of the seized records and/or that he could have designated them as “personal” records, D.E. 84 at 11-15, fare no better. As already noted, Plaintiff has now filed multiple lengthy submissions with the Court that stop short of asserting that he in fact took any of these actions with respect to any of the seized records, including those at issue in the stay motion.
In light of the classification markings, official cover sheets, and other indicia of classification attendant to these materials, see, e.g., D.E. 48-1, Attachment F, such possibilities should not be given weight absent Plaintiff’s putting forward competent evidence. In any event, even if Plaintiff had declassified any of the approximately 100 seized records bearing classification markings while he was still in office, the government’s “demonstrated, specific need” for those records, United States v. Nixon, 418 U.S. at 713, would easily overcome any asserted claim of privilege.
For obvious reasons, the Intelligence Community (“IC”) would have a compelling need to understand which formerly-classified records have now been declassified, why and how they were declassified, and the impact of any such declassification, including on the IC’s protection of its sources and methods and on the classification status of related records or information. The Department of Justice (“DOJ”) and Federal Bureau of Investigation (“FBI”) would also have a compelling need to review any purportedly declassified records as part of the government’s investigation into the adequacy of the response to the May 2022 grand jury subpoena, which sought “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.” D.E. 48-1 Attachment C (emphasis added). Furthermore, the government would need to consider the records’ prior declassification as relates to the application of 18 U.S.C. § 793. See D.E. 69 at 14 (explaining the relevance of classification status in such matters).
And this:
Plaintiff’s suggestion that he “may have categorized certain of the seized materials as personal [records] during his presidency” pursuant to the PRA, D.E. 84 at 15, if true, would only supply another reason that he cannot assert executive privilege with regard to those records. If Plaintiff truly means to suggest that, while President, he chose to categorize records with markings such as “SECRET” and “TOP SECRET” as his personal records for purposes of the PRA, then he cannot assert that the very same records are protected by executive privilege—i.e., that they are “Presidential communications” made in furtherance of the “performance of his official duties.” Nixon v. GSA, 433 U.S. at 447, 456; see 44 U.S.C. § 2201(3) (defining “personal records” as records “of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President”).
And here they take direct aim at the judge:
The Court ordered the appointment of a special master solely to “manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property.” Id. at 23. The Court did not—and could not—appoint a special master to exercise roving “supervisory authority” over the government’s ongoing criminal investigation, contra D.E. 84 at 4, or to adjudicate matters ultimately irrelevant to Plaintiff’s potential privilege claims, such as whether Plaintiff might have declassified seized documents that bear classification markings or whether Plaintiff might have designated those documents as his “personal” records for purposes of the PRA.
Note the phrase "contra D.E. 84 at 4." D.E. 84 at 4 is page 4 of Trump's opposition to the motion for a partial stay (docket entry 84). That's an elegant and concise way of saying this: "Judge, they are arguing that you have power to appoint someone to exercise roving supervisory authority over a federal criminal investigation. You know very well that you don't have that power, and if you try it, even your Trump-loving buddies on the Eleventh Circuit will reverse you."
Of course, it's possible that Judge Cannon is so lost to shame as not to care.
![Mad :mad:](./images/smilies/mad.gif)
We'll see.