{"id":1638917,"date":"2022-09-12T08:02:43","date_gmt":"2022-09-12T12:02:43","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1638917"},"modified":"2022-09-12T08:03:52","modified_gmt":"2022-09-12T12:03:52","slug":"bidens-doj-doesnt-want-to-disclose-classified-mar-a-lago-documents-except-through-selective-leaks-to-leftist-media","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/bidens-doj-doesnt-want-to-disclose-classified-mar-a-lago-documents-except-through-selective-leaks-to-leftist-media\/","title":{"rendered":"Biden\u2019s DOJ Doesn\u2019t Want To Disclose \u2018Classified\u2019 Mar-A-Lago Documents\u2014Except Through Selective Leaks To Leftist Media"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"&quot;\"><div class=\"counts mashsbcount\">30<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Fbidens-doj-doesnt-want-to-disclose-classified-mar-a-lago-documents-except-through-selective-leaks-to-leftist-media%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1638917&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><div><\/div>\n<p>Hiding behind the horror of 9\/11, the Biden administration demands that a federal judge and the country trust its targeting of a top political opponent\u2014all while leaking details of classified documents to a pliant press.<\/p>\n<p>This development and six others flow from recent court filings in former President Donald Trump\u2019s efforts to obtain a special master\u2019s oversight of the FBI\u2019s seizure of thousands of documents and personal effects from his Mar-a-Lago home. The government doesn\u2019t want to allow an independent review of the documents it\u2019s seized. Trump\u2019s legal team does.<\/p>\n<h2><strong>First, The Backdrop<\/strong><\/h2>\n<p>Three days after the August 8, 2022, raid om Trump\u2019s Florida home, an attorney representing the former president spoke with Jay Bratt, the chief of the Counterintelligence and Export Control Section of the Justice Department\u2019s National Security Division. Bratt has apparently been leading the investigation into the former president.<\/p>\n<p>Trump\u2019s lawyer asked Bratt \u201cto agree to the appointment of a Special Master to protect the integrity of privileged documents.\u201d Bratt refused. A week-and-a-half later, Trump <a href=\"https:\/\/storage.courtlistener.com\/recap\/gov.uscourts.flsd.618763\/gov.uscourts.flsd.618763.1.0_15.pdf\">filed<\/a> a separate action in a Florida district court seeking judicial oversight and the appointment of a special master.<\/p>\n<p>Federal judge Aileen Cannon, a Trump appointee, <a href=\"https:\/\/storage.courtlistener.com\/recap\/gov.uscourts.flsd.618763\/gov.uscourts.flsd.618763.64.0_5.pdf\">granted<\/a> that motion last week, holding a special master shall be appointed to review the seized property, \u201cmanage assertions of privilege and make recommendations thereon, and evaluate claims for return of property.\u201d Significantly, Judge Cannon also entered an injunction prohibiting the government from using the documents \u201cfor criminal investigative purposes pending resolution of the special master\u2019s review process.\u201d The court then ordered the parties to recommend individuals to fill the special master role, along with proposed procedures for the process by last Friday.<\/p>\n<h2><strong>DOJ Files a Notice of Appeal<\/strong><\/h2>\n<p>Before submitting the list of proposed special masters and the other details ordered by Judge Cannon, the Department of Justice filed a notice of appeal with the trial court, which the Eleventh Circuit Court of Appeals then docketed, starting the appeal process. Of interest, here, the clerk of court entered a corrected notice of appeal on behalf of the government, indicating the appeal was \u201cinterlocutory.\u201d<\/p>\n<p>Generally speaking, an \u201cinterlocutory appeal\u201d is filed before the proceedings in the lower court are final. The right to appeal interlocutorily is limited, but federal rules of procedure provide for jurisdiction over an interlocutory appeal where a party challenges the issuance of an injunction.<\/p>\n<p>In this case, because the Biden administration seeks to challenge the trial court\u2019s issuance of a preliminary injunction barring the government from using the seized materials \u201cfor criminal investigative purposes pending resolution of the special master\u2019s review process,\u201d the Eleventh Circuit has jurisdiction to hear this interlocutory appeal.<\/p>\n<p>What issues the Eleventh Circuit will address as part of the interlocutory appeal, such as the propriety of the appointment of a special master, present a different question, however. A federal appellate court with jurisdiction to review, interlocutorily, a lower court\u2019s decision granting an injunction <em>may <\/em>also review other interrelated issues decided by the trial court. Significantly, it is a <em>may <\/em>and not a <em>must, <\/em>meaning the federal appellate court holds discretion to decide whether to review ancillary, albeit interconnected, issues.<\/p>\n<p>The Biden administration has not yet filed its brief on appeal, but it seems likely that the government will ask the Eleventh Circuit to review Judge Cannon\u2019s decision appointing a special master at the same time the appellate court addresses her decision enjoining the DOJ from using the seized materials for \u201ccriminal investigative purposes.\u201d Trump will likely oppose any review of the decision to appoint a special master. But it is too early now to predict what issues the Eleventh Circuit will take up.<\/p>\n<h2><strong>Biden Admin Claims Terrorism Requires a Stay<\/strong><\/h2>\n<p>In addition to filing a notice of appeal, the Biden administration filed a motion for a partial stay of the injunction, asking Judge Cannon to \u201cstay\u201d or put on hold the injunction to the extent it \u201c(1) enjoins the further review and use for criminal investigative purposes of records bearing classification markings that were recovered pursuant to a court-authorized search warrant and (2) requires the government to disclose those classified records to a special master for review.\u201d The government further asked the court to rule promptly on its motion, telling Cannon that if she does not stay those portions of the order by Sept. 15, the government would seek a stay from the Eleventh Circuit.<\/p>\n<p>While stressing that it disagrees with the court\u2019s injunction, broadly speaking, the Biden administration limited its request for a stay to those portions of the order affecting the seized documents bearing a classification marking. In arguing for a stay, the government attempts to present the request as a matter of vital national security, even evoking 9\/11 to frame their argument.<\/p>\n<p>\u201cThe FBI itself is part of the Intelligence Community, and since the 9\/11 attacks, the FBI has integrated its intelligence and law enforcement functions when it exercises its national security mission,\u201d the government stressed in its motion. Further, the FBI conducts investigations that \u201cmay constitute an exercise both of the FBI\u2019s criminal investigation authority and of the FBI\u2019s authority to investigate threats to the national security.\u201d In this case, the government then noted, \u201cthe same personnel from the FBI involved in the criminal investigation were coordinating appropriately with the IC in its review and assessment.\u201d<\/p>\n<p>According, while the court \u201cspecifically authorized the Office of the Director of National Intelligence (\u2018ODNI\u2019) to continue with \u201cthe classification review and\/or intelligence assessment,\u201d the government argues that the injunction\u2019s application to the records bearing classification markings \u201cwould thus frustrate the government\u2019s ability to conduct an effective national security risk assessment and classification review and could preclude the government from taking necessary remedial steps in light of that review\u2014risking irreparable harm to our national security and intelligence interests.\u201d<\/p>\n<p>The Biden administration\u2019s claimed urgency strikes a surreal chord given that the DOJ waited six months to seize the classified documents after learning materials returned to the National Archives and Records Administration included documents bearing the classification markings. Further, given that the government has already segregated those 100 documents, a special master could expeditiously review the material, limiting the supposed harm to our national security and intelligence interests.<\/p>\n<p>How Judge Cannon, and ultimately the Eleventh Circuit, will rule on the motion remains to be seen. Trump\u2019s legal team still has a chance to respond to that motion by 10 a.m. today.<\/p>\n<h2><strong>Biden Admin Seeks to Relitigate Trial Court\u2019s Order<\/strong><\/h2>\n<p>The government\u2019s motion to stay also, in effect, attempts to reargue the DOJ\u2019s position that there is no basis for a special master to review the documents bearing classification markings. The arguments presented in the motion thus serve as a preview of those the government will likely make to the Eleventh Circuit.<\/p>\n<p>First, the government maintains that because the documents bearing classification marking cannot possibly be private records in which Trump has an interest, the court lacked the authority to appoint a special master to review those documents. But this argument presumes the government can be trusted\u2014something Judge Cannon called into question given the mistakes made concerning documents preserved by attorney-client privilege. At a minimum, then, the special master\u2019s review of the documents bearing classification markings provides assurances that the agents reviewing the documents properly segregated them.<\/p>\n<p>The government also challenged Judge Cannon\u2019s view that the special master should review the documents for potential executive privilege. According to the DOJ, as part of the executive branch, it has complete authority to review the documents marked classified and Trump has no right to assert executive privilege.<\/p>\n<p>In enjoining the government from using the seized documents as part of its criminal investigation, Judge Cannon stressed that the question is not that simple. She is right. Because of a dearth of cases law, there is no clear answer to the scope and limits of executive privilege. Some parameters appear clear, however, such as that documents privileged by executive privilege cannot be used by the grand jury, yet the DOJ can nonetheless review those documents.<\/p>\n<p>A problem arises, however, if the same FBI agents who reviewed documents protected by executive privilege then present a criminal case to a grand jury, taking advantage of the knowledge they gleaned from the content of the privileged documents. The FBI avoids that problem with documents protected by attorney-client privilege by using a taint team to review the material for privileged communications. The taint team ensures the investigative agents, who may later present a case to a grand jury, have no exposure to the material protected by attorney-client privilege.<\/p>\n<p>The government and critics of Judge Cannon\u2019s opinion fail to appreciate that absent a \u201ctaint team\u201d to review any documents protected by executive privilege, the investigative agents may improperly use their knowledge during grand jury proceedings. Having a special master identify documents potentially protected by executive privilege provides a mechanism for both the DOJ and Trump to address the effects (or lack thereof) of the potential executive privilege claim.<\/p>\n<p>Unsurprisingly, there is no case law considering these points because the targeting of a former chief executive in this situation has never occurred before. But handling executive privilege similarly to attorney-client privilege makes sense, which explains Judge Cannon\u2019s ruling last week\u2014a ruling the government ignores in its motion to stay.<\/p>\n<h2><strong>Biden Admin\u2019s Request Proves Trump\u2019s Point<\/strong><\/h2>\n<p>Another significant point from last week\u2019s filings comes from the government\u2019s argument in its motion to stay. In arguing against Judge Cannon\u2019s order that it not use the materials seized \u201cfor criminal investigative purposes pending resolution of the special master\u2019s review process,\u201d the Biden administration proves the need for a special master.<\/p>\n<p>Throughout its motion, the government stresses the interconnectedness of the criminal and intelligence community\u2019s work. The FBI uses the intelligence community\u2019s classification review \u201cto inform its \u2018criminal investigation into the potential mishandling of . . . national defense information,\u2019 as to which classification status is highly relevant,\u201d the government highlights.<\/p>\n<p>\u201cThe government must assess the likelihood that improperly stored classified information may have been accessed by others and compromised,\u201d the DOJ continues, adding that \u201cthat inquiry is a core aspect of the FBI\u2019s criminal investigation.\u201d For these reasons, the DOJ argues it cannot separate the intelligence aspect of the investigation from the criminal investigation aspect.<\/p>\n<p>In its motion to stay, the Biden administration further argues:<\/p>\n<blockquote class=\"wp-block-quote\">\n<p>The integration of the FBI\u2019s criminal investigative and national security-related missions would also make it exceedingly difficult to bifurcate the FBI personnel working on the criminal investigation from those working in conjunction with other departments or agencies in the [Intelligence Community.] Any FBI agent or analyst who investigated whether the classified records were improperly accessed, for instance, would by definition be gathering information highly relevant to\u2014and thus in furtherance of\u2014\u2019criminal investigative purposes.\u2019 And such bifurcation would make little sense even if it were feasible, given that the same senior DOJ and FBI officials are ultimately responsible for supervising the criminal investigation and for ensuring that DOJ and FBI are coordinating appropriately with the IC on its classification review and assessment.<\/p>\n<\/blockquote>\n<p>These arguments seek to force the court into allowing its criminal investigation to continue prior to the special master\u2019s review, by framing the court\u2019s order as effectively halting intelligence agencies\u2019 work protecting our national security interests. Beyond creating a false dilemma, the government\u2019s argument proves precisely why a special master is needed to assess privilege: because the Biden administration\u2019s review of the documents, including potentially privileged documents, concerns its criminal targeting of Trump.<\/p>\n<h2><strong>Full Tilt to Target Trump Before Midterms<\/strong><\/h2>\n<p>The argument and analysis presented in the government\u2019s motion reveals another reality: The Biden administration intends to pursue a criminal case against Trump, likely before the 2022 midterms. After the first wave of shock over the raid of the former president\u2019s home passed, the conversation quickly turned to the end goal. Would the government be content with retrieving the documents, or was the government intent on indicting Trump?<\/p>\n<p>While not conclusive, the government\u2019s motion strongly suggests the Biden administration is all-in on pursuing a criminal case against the former president. Every word of the DOJ\u2019s motion frames the case as representing a serious affront to national security and one deserving of criminal penalties.<\/p>\n<p>For example, the Biden administration argues that \u201cwithout a stay, the government and public also will suffer irreparable harm from the undue delay to the criminal investigation.\u201d \u201cThe public has an \u2018interest in the fair and expeditious administration of the criminal laws,\u2019\u201d the brief continues, adding that \u201cany delay poses significant concerns in the context of an investigation into the mishandling of classified records.\u201d \u201cThe government\u2019s need to proceed apace is particularly heightened where, as here, obstructive acts may impede its investigation,\u201d the Biden administration further stresses.<\/p>\n<p>A few months\u2019 delay to allow the special master to review the documents, however, is far from an \u201cundue delay,\u201d unless the Biden administration\u2019s focus isn\u2019t a \u201cfair and expeditious administration of the criminal laws,\u201d but midterm elections.<\/p>\n<h2><strong>Only Leaks Are Allowed to See the Light of Day<\/strong><\/h2>\n<p>In seeking to expedite its criminal investigation and in opposing the special master, the Biden administration relies heavily on its claims that the documents marked classified put the country at grave risk. But as Trump\u2019s lawyers note in their briefing, material once classified does not always remain classified. This concerns not merely the documents Trump declassified, but that other documents, such as the former president\u2019s travel itinerary, lose any top-secret nature with time.<\/p>\n<p>The Biden administration clearly wants Americans to believe the documents Trump had at Mar-a-Lago represent serious threats to our national security, as evidenced not merely by the court filings but by the many leaks to the press. To protect that narrative, the DOJ remains adamant that the special master not have access to the documents it has segregated as marked classified.<\/p>\n<p>The Biden administration argues it \u201cwill also suffer irreparable harm if . . .it is forced to disclose classified materials outside the Executive Branch in circumstances where there would be no valid purpose served by such disclosure.\u201d But, as Judge Cannon detailed, there are several valid purposes, including ensuring the documents were properly segregated and do not involve privileged documents.<\/p>\n<p>Further, transparency proves especially important in this case, where \u201cconcerns about the perception of fair process are heightened where, as here, the Privilege Review Team and the Investigation Team contain members from the same section within the same DOJ division, even if separated for direct reporting purposes on this specific matter.\u201d \u201c[P]rosecutors have a responsibility to not only see that justice is done, but to also ensure that justice appears to be done,\u201d Judge Cannon stressed.<\/p>\n<p>Beyond these points, there is the irony that while the government bemoans the use of a special master, it continues to leak to the press supposed details about their content. <a href=\"https:\/\/thefederalist.com\/2022\/09\/02\/deja-vu-dojs-classified-documents-narrative-feels-like-a-get-trump-trick-weve-seen-before\/\">History<\/a> also teaches that the more the government screams about the need to keep supposedly classified information secret, the more likely the details represent not national security intel but information harmful to the deep state.<\/p>\n<h2><strong>Master Names Floated, Including a DNC Donor<\/strong><\/h2>\n<p>On Friday, the DOJ and Trump filed a joint response to the court\u2019s order, setting forth individuals to serve as the proposed special master. On the DOJ side, the Biden administration recommended retired federal judges Barbara S. Jones and Thomas B. Griffith. <a href=\"https:\/\/twitter.com\/ProfMJCleveland\/status\/1568433176401297409\">Jones<\/a> is a Democratic National Committee and Act Blue Donor, while Griffith appears a Biden <a href=\"https:\/\/twitter.com\/ProfMJCleveland\/status\/1568439372713758722\">favorite<\/a>, having previously been called to serve on a committee to reform the Supreme Court.<\/p>\n<p>Trump\u2019s legal team proposed Judge Raymond Dearie and Florida\u2019s former deputy attorney general, Paul Huck Jr. While likely similarly biased, but in Trump\u2019s favor, that is precisely what is needed to ensure that the Biden administration\u2019s DOJ isn\u2019t playing fast and loose with the facts.<\/p>\n<p>For all these developments, there will be many more over the next week, with the government filing its opening brief in the Eleventh Circuit. Trump\u2019s legal team will also be responding shortly to the Biden administration\u2019s motion to stay and Judge Cannon will need to rule on that motion. Should she deny the motion, the government will then seek a stay from Eleventh Circuit. Judge Cannon must also decide on the individual to appoint as a special master and whether he (or she) will have access to the documents marked classified.<\/p>\n<p>With every development, there will be more media coverage of Trump and the raid\u2014and less of the disastrous condition Biden and Democrats have put the country in over less than two years.<\/p>\n<hr class=\"wp-block-separator\" \/>\n<p>\n  Margot Cleveland is The Federalist&#8217;s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. <\/p>\n<p>Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize\u2014the law school\u2019s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. <\/p>\n<p>As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Hiding behind the horror of 9\/11, the Biden administration demands that a federal judge and the country trust its targeting of a top political opponent\u2014all while leaking details of classified<\/p>\n","protected":false},"author":499,"featured_media":2315279,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"","fifu_image_alt":"","footnotes":""},"categories":[],"tags":[],"class_list":["post-1638917","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1638917","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/499"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=1638917"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1638917\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2315279"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=1638917"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=1638917"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=1638917"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}