The DoJ Argues that the Intelligence Community Overrides the Judiciary

The DoJ Argues that the Intelligence Community Overrides the Judiciary by Clarice Feldman for American Thinker

At this point in time I have no regard for the probity or competence of the Intelligence Community and neither, apparently, does Judge Aileen Cannon, who earlier this week ordered the appointment of a Special Master to review those documents seized in the Mar-a-Lago raid, which it claims are classified. The Department of Justice appears to have been surprised that it has lost credibility and filed a motion seeking a stay on that portion of the order and a Notice of Appeal to the Eleventh Circuit indicating its intention to file an interlocutory appeal.

I don’t think the trial judge who issued a very well-considered order will grant the stay. I don’t think the Eleventh Circuit will, either. I don’t think the Eleventh Circuit will even grant an interlocutory appeal on this matter. I do think all of these pleadings reveal the weakness of the grounds for a search and seizure of materials at the home of Donald J. Trump, the overreach of the warrant, and the expansive search itself. Worse for the DoJ and FBI, I believe their actions amount to a claim that under no circumstances does the judiciary have a right to question anything the Intelligence committee does as long as it makes a claim of “national security.” Such a claim is scary and should be — and I think will be — denied.

Without going into all the fine points of what it means to say a trial court order is an interlocutory order, basically it means that the order is not a final one. In this case, it is merely an order covering discovery matters in a trial. As Seth Barrett Tillman tweeted, ”The government has not been forced to return any materials, and no privilege rulings have been made for which to take an appeal.” He also gives an example of such an interlocutory, unappealable action by a trial court: He notes that J. Messitte refused to decide Trump’s motion to dismiss the Emoluments Clauses case and sat on it for three years until after the election when he dismissed it as moot after Trump lost.

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Why is the DoJ so desperate to prevent a Special Master, even one with security clearance, to view those documents the department asserts are classified? (The parties each have offered two candidates for the position, one of Trump’s candidates, in fact, sat on the FISA court. Is he less certain to do this job properly than the National Archivist?) There are several possible explanations for the desperation I can think of — none of which do credit to the attorney general. The first and most common supposition is that the documents which they claim must be kept even from the eyes of the Special Master relate to the FBI and DoJ’s role in fashioning and perpetrating the phony Russian Collusion fairytale. That would be damning indeed, and frankly, I see it as the most likely explanation: It is improper to classify documents simply to prevent embarrassment to persons or agencies. And anyone who does this is subject to sanctions. Obama’s Executive Order 13526 reads in relevant part:

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