DOJ takes it up a notch

I read the motion the DOJ filed with the execrable Florida judge today so you don't have to

The Department of Justice today put a federal court judge in Florida and the 11th Circuit Court of Appeals on notice that we are headed for a Constitutional crisis, not to mention a national security nightmare.  In its first filing, the DOJ notified the 11th Circuit that it intends to appeal  Judge Aileen Cannon’s order that a special master be appointed to review all 11,000 documents Trump removed from the White House to Mar a Lago when he left office. At the same time, the DOJ filed with Judge Cannon a motion for a “partial stay” of her order pending its appeal to the 11th Circuit.

What the DOJ is asking the Florida judge is to exempt approximately 100 highly classified documents from her order for the special master.  Trump has no legal right to claim that “he owns or has any possessory interest in classified records,” the DOJ told the judge.  Addressing the issue raised by Trump that he somehow can assert executive privilege over the seized documents, the prosecutors reminded the judge that in May when the department issued a subpoena for the records held at Mar a Lago, Trump “himself declined to assert any claim of executive privilege over the classified records” the FBI seized. That would have been Trump’s opportunity to claim executive privilege, the DOJ filing said.  That he failed to do so at that time, or when he turned over even more documents to the National Archive in January, should discount his recent claim of executive privilege as a delaying tactic and nothing more.

The DOJ quoted the 1974 Supreme Court case over the White House tapes,­ United States v. Nixon, reminding the judge that the decision found that any claim of executive privilege or any other privilege over “classified” (emphasis in the filing) records would be overcome by what the Supreme Court had called, “the government’s demonstrated, specific need” for the evidence in question, in this case, the 100 classified documents the DOJ is asking the judge to exempt from her order.

“The government, and the public would suffer irreparable harm absent a stay,” the motion said, reminding the judge that “the court correctly recognized the government’s vital interest in conducting a national security risk assessment of the possible unauthorized disclosure of the classified records and any harm that may have resulted.”

This is what is colloquially referred to as calling out the big guns. When the government puts “national security” and “risk” in the same sentence, they are putting members of the judicial branch on notice that what is at stake here is far above their pay grade to block, bar, or delay because national security is constitutionally the business of the executive branch, not the judiciary.

The rest of the DOJ motion consists of laying a groundwork and fact pattern for a potential appeal should Judge Cannon refuse to grant its request for a stay of her order regarding the classified documents. It’s complicated, but the DOJ began by explaining that the national security assessment and its investigation of Trump’s handling of the classified documents cannot be “segregated” from one another.  The motion included this blockbuster piece of news:  Because of “uncertainty regarding the bounds of the court’s order,” the intelligence community (read:  Director of National Intelligence, or DNI) consulted with the DOJ and decided it would have to “pause temporarily this critically important work.”  Pulling the lanyard on yet another big gun, the DOJ said that “the government and the public are irreparably injured when a criminal investigation involving risks to national security is enjoined.”

DOUBLE BOOM! Not one but two big revelations here: