Resolution criteria here is intentionally ambiguous, as many things could lead to a substantial reversal of this decision. Non-exhaustive examples would include:
A successful motion to reconsider
Inability to appoint a special master
Reversal by the 11th Circuit, DC Circuit, or SCOTUS
Absent a situation like this, this market will resolve NO
Close date updated to 2022-09-28 11:59 pm
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Okay, going off of BTE's article, the part that seems most relevant to this question is this:
Cannon on Thursday issued a revised order stating that the special master in the case would review all documents "except the approximately one-hundred documents bearing classification markings." She also struck two portions from her original order preventing the DOJ from probing the classified documents during the special master review and requiring them to disclose the materials to the special master
The most egregious part of the order by far was the inability for DOJ to review the documents marked as classified. In addition, I believe that, absent this amendment, the 11th Circuit would have made a stronger reversal
The three-judge panel — which included two Trump appointees — said Cannon, a fellow Trump-appointee, "abused" her discretion by barring the DOJ from continuing to investigate the classified documents seized from Trump's Mar-a-Lago residence and allowed investigators to resume their probe.
Given all of this, I can see no reason to resolve lower than 75%. I would like to use this comment as an opportunity for any to voice an objection to this being resolved YES. If there is one that I think is reasonable, and I haven't resolved the market yet, I will not do so. Otherwise I will wait >= 24 hours, then resolve YES
@LivInTheLookingGlass I think YES or a high percentage is the correct resolution, and I don't think I have a good answer as to which is better (I'm also biased).
One thought: was there any change to the part about executive privilege review? (I didn't see any change mentioned in the news.) That was another controversial part that was less immediately problematic but could have had more interesting long-term effects.
@jack Yes, it has been completely struck from the order by Judge Cannon. And it was laughed out of court at the 11th circuit by 2/3 judges appointed by Trump. They literally made fun of him in their opinion, like 'why is this asshole wasting everybody's time??'
@jack The important point here is that Cannon radically altered her original order such that not only does it change substantively, it eliminated the possibility Trump can appeal again to the supreme court because she has said he cannot show he could be harmed in his capacity as former Executive in any way by the continuing of the criminal investigation.
@jack First the Special Master told Trump's lawyers he couldn't understand how executive privilege applied and then the appeals court basically let Cannon save some face and she took them up on it. She realized Trump was only going to drag her down.
What is becoming very apparent is the judges are starting to get really pissed at Trump's lawyers because they won't answer for the things Trump is saying on TV since they aren't going to commit perjury. This is getting out of hand before it even really gets started. I am starting to think Trump is going to be held without bail or completely gagged when he is charged because a judge isn't gonna just sit back and take personal threats when they have the power to literally silence anyone on all channels through force of court order. He needs to shut up or he won't even get the fight he seems to be itching for.
@BTE I'm not seeing that in the stay or Cannon's update? https://www.lawfareblog.com/cannon-strikes-two-provisions-special-master-order-response-eleventh-circuit-ruling says it removed the part about classified documents, and also struck "Paragraph 6, which requires the Special Master to submit interim reports and recommendations to the court throughout their review". Nothing about executive privilege that I see there yet.
It looks like the order is still for the special master to review for attorney-client privilege and executive privilege.
@jack I think effectively unappealable meets the standard for "substantially reversed".
@jack That bit about Trump no longer being able to show irreparable harm is what I am referring to. Changes the significance of the entire situation.
@jack That was the reason for the special master in the first place, to ensure Trump didn't suffer irreparable harm. Typically only attorneys get the privilege of a special master, so this was already unusual. The potential outcomes of this now are just one, review of documents for attorney client privilege.
@jack I guess MKT is acceptable resolution since we are just going to continue splitting hairs.
The special master is still reviewing the documents, except for the 100 classified documents. Certainly the 100 classified documents were the most urgent for the DOJ, but it's not clear to me that they were the most imoprtant for Trump's legal strategy (they might be, or it might be that they just wanted to get as many documents considered privileged as possible, or that they just wanted to stall the process in general).
@jack What is the significance of the special master at all if he can't ultimately protect Trump from being prosecuted for possessing something he shouldn't. Trump was trying to use this to assert he was entitled to have the classified documents, everything else was just noise. That has been completely rejected so we are arguing over semantics. The substance is clear IMO.
@BTE The special master can still (hypothetically) protect Trump from possessing documents he shouldn't have. Note that the charges were about all the documents, the charges didn't even require the documents be classified.
@jack You are saying the special master can protect trump somehow still? He is just reviewing documents subject to the Presidential Records Act now, which is a law with no enforcement mechanism. The only documents Trump can get charged with the three crimes cited in the warrant must contain defense information, and need not be classified as you said. But the records the government is not contesting to be classified are actually a paperwork issue because the presidential records act can't be used to charge him. Only the Espionage Act.
@jack So I disagree that the three charges pertain to potentially all of the documents. The DoJ has only claimed that they pertain to the 100 or so documents that contain defense information and may or may not be classified. Remember, Trump claims on TV he declassified them via osmosis. Dearie has told Trump's lawyers they must address those claims as well as claims of planted documents by next week or those defenses are excluded permanently. That is why Trump's lawyers are trying so hard not to assert those things yet.
@BTE He can be charged with violations of the Espionage Act for unclassified information. He can also be charged with concealing records (including unclassified ones). These aren't coming from the Presidential Records Act.
From https://en.wikipedia.org/wiki/FBI_search_of_Mar-a-Lago.
violations of the Espionage Act regarding unauthorized retention of national defense information;
destroying or concealing records "with the intent to impede obstruct or influence" federal government activity;
illegal removal or destruction of federal government records (without respect to cause).[1][2]
unclassified "national defense information" would still be covered under the Espionage Act
@jack We aren't even talking about this question anymore. The DoJ got everything they asked for on appeal, so how could it possibly be it wasn't reversed? Wouldn't they have gone further then to get it reversed? If the DoJ isn't challenging it is it really a win for Trump - not likely. But again, we are not even talking about the special master anymore really but instead how Trump could be charged. The special master would have had to have found an improper search for Trump to be protected by him, that is totally off the table now.
@jack These are the only documents subject to criminal investigation. The DoJ appeal was to repair the harm to an ongoing investigation from Cannon's ruling that went against typical prosecutorial discretion by federal judges. Judges never stop investigations like Cannon did, so it was an exceptional ruling, thus does not need an exceptional reversal. Having all those other documents mixed in just bolsters the DoJ case that Trump knew what he had and hid it intentionally amongst innocuous looking stuff.
I don't think we are disagreeing anymore, right?
@BTE This was only one appeal about one small part. Let's say hypothetically the special master rules that documents XYZ are protected by privilege. DOJ certainly might want to appeal that. That appeal could be won or lost.