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On Sept. 20, Senior Judge Raymond Dearie, the special master chosen by Judge Aileen Cannon to evaluate disputes over the records seized by the FBI from former President Trump’s Mar-a-Lago estate, conducted a preliminary hearing to resolve initial matters and establish a plan for the conduct of the review. Meanwhile, the U.S. Court of Appeals for the Eleventh Circuit is considering the Department of Justice’s request to remove all classified documents from the universe of records before Dearie, after the Trump legal team responded to the government’s motion on Sept. 20. I’m going to leave the play-by-play to others and simply outline here what issues are going to need to be resolved in the near future and what form that resolution is likely to take, and in the interest of clarity I will style this as a Q&A.
When Is the Eleventh Circuit Likely to Decide, and What Are They Actually Deciding?
Based on my own unscientific sampling of case filings from the past year, the Eleventh Circuit does have a history of resolving motions to stay a lower court’s injunction pending appeal in a fairly prompt fashion, often within days. The government did rather curiously fail to style its motion as an “emergency motion” or even a “time sensitive motion,” both of which are specifically allowed by Eleventh Circuit Rule 27-1(b), but it does not appear that this oversight will detract from the speed with which the circuit decides the motion, since it already issued a Saturday order directing the Trump team to respond by noon Tuesday to a motion filed on Friday. If I were to venture a guess, I’d suspect that the circuit is aware of the fact that Cannon specifically instructed Dearie to review the classified documents first—a fairly transparent broadside against the Justice Department for filing its interlocutory appeal—and will not let a simple filing oversight dictate the speed with which it renders a decision on a motion that Cannon has already denied. In my opinion, we should expect a decision from the circuit regarding the Justice Department’s motion within the week.
With that being said, it is important to recall that the Justice Department actually filed two documents with the Eleventh Circuit, and the one does not directly affect the other. On Sept. 9, the department filed a notice of appeal regarding Cannon’s order declaring that she would appoint a special master, which may seek reversal of the entire order or just part of it. That appeal is still underway, and nothing has been filed by either party regarding the merits or even the scope of that appeal (which is not unusual, as such things generally do not happen for weeks after noticing the appeal).
What the Justice Department filed on Sept. 16 is a motion to stay Cannon’s order insofar as it directs the government to allow Dearie or the Trump team to review the 100-odd classified documents included in the seized records. If the circuit grants this motion, that will simply mean that Dearie will continue his review of all the unclassified records while the parties argue about the merits of the appeal itself before the circuit. If Trump loses the merits argument, then the classified records stay outside of the scope of Dearie’s review; if Trump wins the merits argument, then Dearie will then review the classified records, after having resolved any disputes over the unclassified records.
Because the Justice Department has a significant chance of succeeding in its appeal—and in my opinion, can only succeed unless the Eleventh Circuit tosses aside decades of compelling precedent—I feel comfortable predicting that the circuit will grant the department’s stay motion and allow the parties to argue the merits of the overarching controversy, likely in an expedited fashion.
What Is the Scope of Dearie’s Review?
Cannon instructed Dearie to hear arguments over three key questions: (a) Which records are protected by an attorney-client privilege between Trump and a private attorney; (b) which records are protected by executive privilege; and (c) which records are Trump’s personal records as opposed to official presidential records? After evaluating all of the arguments, Dearie will make recommendations to Cannon for how to resolve any controversies, but Cannon will make the final call. As currently envisioned, Dearie’s recommendations are likely to be filed on the public docket, but that may change, and recommendations—and responses to them—may be filed under seal. The Justice Department has already requested that a protective order be entered in the case, which would authorize such filings.
One of the questions Dearie will not be addressing is whether or not the records are classified. This is true regardless of whether or not the Eleventh Circuit grants the Justice Department’s motion to stay. However, this does not mean that the classification status will not be addressed at all, especially if the circuit denies the department’s motion. Classification of a record—or lack thereof—will serve as an indicator of other characteristics. For instance, while there is nothing expressly prohibiting a president from classifying a personal record—such as, for example, a diary in which he discusses his daily work—classification is generally used only for government records, and therefore a finding that a record is classified creates a rebuttable presumption that it is not a personal record. Furthermore, if it is not a personal record, it cannot be protected by attorney-client privilege, since government records would not reflect a privileged relationship between Trump and a private attorney. Contrariwise, if it is an unclassified personal record, then it cannot be protected by executive privilege, as that only protects information about the president’s work. It’s worth noting that these last two points are my own analysis based on first principles, as nobody has ever litigated this before, but we can expect to see a lot of that in the coming weeks and months.
However, this is not to say that personal records can never be classified, and in fact, arguing this point may place Trump in further legal jeopardy. As I and several others have argued many times before, the Espionage Act does not require that information be classified, only that it be “related to the national defense.” Classification of a document creates a presumption that it is related to the national defense, and if Trump argues that he declassified a classified personal record before he took it home, he can still be found liable for any national defense information contained in that personal record. This is not a wholly unprecedented situation; former Director of Central Intelligence John Deutch lost his security clearance—although the Justice Department admittedly declined to prosecute him—for writing classified national defense information in his private diary on his personal home computer.
What About Agency Records?
Several observers, myself included, have pointed out that not all of the records seized by the FBI are likely to be categorized as either presidential or personal records; some will be considered agency records, which are not controlled by the Presidential Records Act and belong to the agency that created them. Cannon’s order does not appear to contemplate this possibility, and so Dearie will need to resolve that discrepancy and will likely recommend to Cannon that the order be amended to allow for this third category of records.
The difference is potentially relevant because the PRA is clear that an agency record, such as a CIA intelligence report, does not become a presidential record simply because it went to the White House. If the president adds new information to it, even by simply highlighting a passage or writing a note in the margin, then that copy becomes a presidential record, while the unmarked copy that still exists at CIA headquarters remains an agency record. The president also arguably has the authority to declare that any record is a presidential record—as President Obama did with the Senate Intelligence Committee’s report on the CIA torture program—but either way, it requires some affirmative action by the president to convert an agency record into a presidential record.
The question becomes, can a president take an agency record and convert it into a personal record? The answer is, maybe. Could President Trump receive a confidential report from the State Department about French President Emmanuel Macron; say, “I hereby declassify this and declare it to be a personal record”; and then legally put it in his briefcase? Setting aside any questions of national defense information, as discussed above, the answer appears to be no, but nobody could stop him. No, that record would not meet the traditional definition of a “personal record,” but the PRA gives the president virtually unlimited discretion to categorize records as presidential or personal during his tenure.
The PRA restricts the president from converting a presidential record into a personal record without jumping through several hoops, such as asking the archivist’s position on the matter, because doing so would be functionally equivalent to destroying the presidential record; however, it says nothing about agency records. While there would be a potential argument for the archivist to file a lawsuit seeking the return of the record under a writ of replevin after the end of the president’s term, as happened with Peter Navarro recently, such a lawsuit would be extraordinarily technical, hinging on the exquisitely nuanced question of whether a president’s formal designation of a personal record during his administration is reviewable after the end of his term. This may in fact be why the archivist has not pursued such an avenue until this point, since there is no guarantee that a court would agree with the government’s position (assuming that Trump was able to offer evidence to back up such a claim).
How Will Classified Records Be Handled?
If the Eleventh Circuit denies either the Justice Department’s stay motion or the government’s appeal, Dearie will be required to address the question of how to handle records marked as classified. Cannon’s order envisioned review of such records by both Dearie and Trump’s legal team, but that will not look the way she might have intended it.
First, as far as Dearie is concerned, I continue to maintain that he would need to be processed for a security clearance or a limited security access (LSA), which is akin to a one-time security clearance for specific information. As he is a sitting Article III judge, he would not normally be required to obtain a clearance to review classified information, as he is a representative of a co-equal branch of government. However, in this particular case, he is not acting as a representative of a co-equal branch of government; he is acting as a “judicial adjunct,” providing assistance to an Article III judge in much the same way as a magistrate judge or a law clerk—both of whom require security clearances to review classified material. To draw a loose analogy, a sitting Article III judge does not require a security clearance to review classified information in the context of a case before him, but he would need one if he wanted to review in the context of the national security law class he teaches at the National Defense University. This may be an academic concern, however, since the government could just grant Dearie a clearance or LSA without any process, and likely would if it comes to that.
As far as the Trump legal team is concerned, however, the Justice Department is going to be extremely reluctant to grant access to classified information to many—if not all—of Trump’s lawyers. Moreover, the admittedly sparse case law on the matter will strongly support the department’s position. A federal court has the undeniable authority to order the government to process a private lawyer for access to classified information, but it lacks the authority to order the government to grant such access if the government determines that it is not in the best interests of national security for that lawyer to be given access. Put more simply, Cannon can order the Justice Department to process Trump’s lawyers for security clearances, but she cannot order the department to give them security clearances. This is a hill that the Justice Department will die on, regardless of how they feel about the particular lawyers in question. And should any—or all—members of the Trump legal team fail a background investigation, those lawyers will not be given access to the classified information in question unless Cannon, the Eleventh Circuit, and potentially even the Supreme Court directly orders it to happen. A plaintiff in a civil case has a First Amendment right to have a cleared counsel if the judge orders it, but he does not have a right to have the cleared counsel of his choice over the government’s security-based objections.
There are numerous other issues that may arise in this case as it proceeds through the system, ranging from potential invocations of the state secrets privilege to prevent information from being given to Dearie or Trump’s legal team to a potential effort by the archivist to bring a replevin claim in D.C. federal court as discussed above. But nothing groundbreaking is likely to occur until the above matters are resolved, either by Dearie, Cannon, or the Eleventh Circuit. Accordingly, to keep this article timely and to the point, I’m going to stop here and watch for a while to see what the future holds.