Executive Branch

Justice Department Asks Eleventh Circuit to Partially Stay Cannon's Order

Natalie K. Orpett
Saturday, September 17, 2022, 4:24 PM

Published by The Lawfare Institute
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On Sept. 16, the Justice Department filed in the U.S. Court of Appeals for the Eleventh Circuit a Motion for a Partial Stay Pending Appeal. The government noted that although it "believes the district court fundamentally erred" in its Sept. 5 Order appointing a Special Master and imposing an injunction, it was asking to stay only those portions of the order relating to approximately 100 documents marked as classified.

The government reiterated many of the arguments set forth in its Sept. 8 and Sept. 13 filings in the district court, which had sought a partial stay from U.S. District Court Judge Aileen Cannon. (She had rejected that request in a Sept. 15 Order.) First, it argued that any potential claims of attorney-client or executive privilege, as well as any potential claims under Federal Rule of Criminal Procedure 41(g), were "categorically inapplicable to the records bearing classification markings." Second, it argued that the government and the public would suffer irreparable harm if a stay is not granted. Third, it argued that former President Trump would not suffer any cognizable harm from the grant of a stay. Finally, it asked the court to rule on the motion "as soon as practicable."

The government's motion was accompanied by an Addendum containing all relevant district court filings, including orders, declarations, the grand jury subpoena, and the warrant materials. 

You can read the motion 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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