Executive Branch

Eleventh Circuit Grants Justice Department's Motion for Partial Stay

Natalie K. Orpett
Wednesday, September 21, 2022, 8:45 PM

Published by The Lawfare Institute
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On Wednesday evening, the Eleventh Circuit Court of Appeals issued an opinion granting the Justice Department's motion for a partial stay. The department's motion, which was filed only last week, had asked the court to stay that portion of Judge Aileen Cannon's order that enjoined its review and use of approximately 100 classified documents.

In granting the stay, the court first held that the government was likely to succeed on the merits of its claim that Judge Cannon had erred in exercising equitable jurisdiction to enjoin the department's review and use of the marked classified documents and to require their production for the Special Master's review. To reach this conclusion, the court applied the four factors set forth in Smith v. Richey, finding that none favored jurisdiction. 

Second, the court concluded that denying the stay would result in irreparable harm because the national-security review led by the Director of National Intelligence, which Judge Cannon's order allowed to proceed, is "inextricably intertwined with [the government's] criminal investigation." The court also agreed with the government's contention that allowing the special master and former President Donald Trump's counsel to review the marked classified documents would separately constitute irreparable harm.

Third, the court held that Trump had failed to establish that he would suffer a substantial injury as a result of the stay. The court found that Trump "does not have a possessory interest" in the marked classified documents and that these documents likely do not contain privileged information such that the government's use of them would harm him. The court further found "unpersuasive" Trump's claim that he would suffer irreparable harm as a result of the criminal investigation against him.

Finally, the court held that because it is "self-evident" that the public has a strong interest in insuring secure storage of classified materials, public interest favored a stay.

You can read the Eleventh Circuit's opinion here or below:


Natalie Orpett is the executive editor of Lawfare and deputy general counsel of the Lawfare Institute. She was previously an attorney at the law firm Jenner & Block, where she focused on investigations and government controversies, and also maintained an active pro bono practice. She served as civilian counsel to a defendant in the Guantanamo Military Commissions for more than eight years. She also served as counsel to the National Security and Foreign Policy Legal Team of the Biden-Harris Transition Team.

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