What It All Means 🐉

Professor Vladeck explains it for you:

Judge Cannon has just ruled that the January 6 volume of the Special Counsel's report *can* be released as early as tomorrow (when her injunction expires), but she is extending her bar on release of the Mar-a-Lago volume pending a hearing that she has scheduled for this Friday afternoon.

What that means:

This may seem technical, but what Trump would need from #SCOTUS to prevent the January 6 volume of the Special Counsel report from coming out tomorrow *isn't* a "stay"; as of midnight (ET) tonight, there's nothing to "stay." 

What he'd need is an *injunction,* which carries a much higher burden.

That’s been mooted by Cannon’s latest order, but we need to walk through this step by step. And to explain that:

If this sounds familiar, it's because this is the *exact* procedural technicality at the heart of the TikTok case before #SCOTUS — an "administrative stay" isn't viable because there's no lower-court ruling to "stay," so the only way to prevent things from happening is an injunction pending appeal.

Which leads him to conclude:

We're now in "Scenario 1" of the possibilities I laid out this morning: 

https://www.stevevladeck.com/i/154621642/the-one-first-long-read-mar-a-lago-palooza

What he’s referring to:

Scenario 1: Cannon does not extend the injunction today. Here, the path to the Court would be for Nauta and De Oliveira to seek emergency relief from the justices—asking them to do what the Eleventh Circuit declined to do on Thursday. Such an ask would be a longshot, but it’s at least a procedurally viable path to getting this dispute before the justices

Except, as I said, she did extend her injunction. As I’ll argue below, I think that shields the matter from the Supremes for now (because the 11th Circuit has to rule on this new order first). All of which means, I still have questions:

1)  Trump would need an injunction? Set aside the question of obtaining the injunction (as the Professor says, harder than getting a stay), how does Trump have standing here? 

The answer is, of course, he doesn’t. He’s not a party to this case anymore. He can’t get back in. I understand Professor Vladeck means Trump’s interest is served by an injunction, not that Trump must obtain it. But I need to get into these weeds, in order to explain, and critique, Scenario 1.

So…

Trump can’t get to the Supremes from here. He doesn’t have a case related to this report, or a chance of filing one that could conceivably leapfrog to the Justices before the report could be published (so basically, after noon on January 20th. Nor can he attach himself to the case in the 11th Circuit. He has no mechanism to put his case to the Supremes. EOD.

The only people with a direct interest in that report, because of the impact it could have on their possible criminal trial. I’m sure Alito could conjecture some reason why Trump should have a say in this matter (but not Biden in the release today of the Weiss report on Hunter, because…well, not Trump, duh! At oral arguments on the Tik-Tok case, Alito was leaning towards Trump’s argument to “stay” the statute so Trump could…do something. This is not a power the Court has, but…Alito! Nuff said.). But again, not soon enough. Nor is it likely Alito could get four more votes just to hear the case.

We’re narrowing down the options, here.

Now, one Justice (the one assigned to the 11th Circuit; Google tells me it’s Thomas, so there’s almost no point in going on) could reject the appeal without involving the whole Court (see?). But if I understand correctly, a majority of the court has to agree to take the case (the New York sentencing matter). I still take that, provisionally, as instructive. I don’t really think the fundamental legal question is any different here than there. Although one case involved intervention in a state proceeding, and this would involve intervention in a federal proceeding, the situation is the same in this: should the Court weigh in at this point?

“Loose” Cannon doesn’t have jurisdiction over this matter. Professor Vladeck is more circumspect on that point than me. But let me give you the background of this case:

Last week, Nauta and De Oliveira filed two emergency motions to block the release of both volumes—one in the Eleventh Circuit (as part of the government’s appeal of Cannon’s dismissal) and one with Judge Cannon. They’re also seeking to block the volumes from being shared, even in camera, with the chairs and ranking members of the House and Senate judiciary committees. Even though Garland’s letter stipulates that he won’t publicly release the MAL volume so long as the case against Nauta and De Oliveira remains pending, the co-defendants (and Trump, who has filed as an amicus) have argued that both volumes should be blocked—because they are “inseverable.” DOJ, meanwhile, has represented to the Eleventh Circuit that the January 6 report “does not refer to either [of the co-defendants] or describe the evidence or charges against them.” Thus, the MAL defendants are trying to use the pendency of the case against them as an excuse to block release to the public or the relevant members of Congress not only of the MAL volume (which isn’t going anywhere), but also of the apparently unrelated January 6 volume. Last Tuesday, Judge Cannon granted Nauta’s and De Oliveira’s request to block the release of both volumes—while the Eleventh Circuit decided whether to block the release as part of the federal government’s appeal on the appointment issue. Cannon’s order, which came before the government had even had a chance to respond, enjoined any dissemination of both volumes outside the Department of Justice (including to the chairs and ranking members of the House and Senate judiciary committees) until “three days” (more on this in a moment) after the Eleventh Circuit ruled on the co-defendants’ similar pending request. 

It’s not at all obvious that Cannon even had jurisdiction to provide that relief. It’s well-settled that a notice of appeal, especially after a final judgment, divests district courts of almost all of their jurisdiction over a dispute. None of the exceptions courts have recognized to this general rule (e.g., to stay or un-stay the ruling under appeal; to aid the appellate court’s consideration of the appeal; or to modify existing injunctions) seem to remotely encompass what Cannon did. In any event, at least initially, the stated justification for the district court’s intervention was solely to ensure that the Eleventh Circuit would have time to consider the matter. That’s now happened because… 

On Thursday, the Eleventh Circuit denied Nauta’s and De Oliveira’s request to block release of the volumes. In the same order, it declined (correctly, in my view) the government’s invitation to provide additional relief against Cannon—because the government hadn’t yet appealed Cannon’s order. That ruling started the three-day clock on Cannon’s injunction.

There’s an important point there I need to emphasize: in general, courts cannot do what they are not asked to do. The DOJ did not formally invoke the 11th Circuit’s authority to overrule Cannon last week when the court ruled, and after Cannon had ruled. The DOJ needed to notify Cannon of the appeal (which they did Friday). That appeal is now before the 11th Circuit.

I recount this tedious detail because the devil is truly in these details, as we’ll see.

Also on Friday, having lost in the Eleventh Circuit, Nauta and De Oliveira, rather than going to the Supreme Court, went back to Cannon and asked her to extend her Tuesday injunction—to prevent release of the report indefinitely, and to prevent it from being made available, even on an in camera basis, to anyone outside of the Department of Justice, including the chairs and ranking members of the House and Senate judiciary committees. 

Overnight Friday/very early Saturday morning, the government asked the Eleventh Circuit to consolidate its new appeal (item #11) with its existing appeal of the dismissal of the whole prosecution (item #1)—so that the Special Counsel report dispute can be expeditiously and conclusively resolved by the same panel hearing the appeal in which it ostensibly matters. 

On Saturday, Cannon ordered the government, in conjunction with Nauta’s and De Oliveira’s request to extend the injunction, to provide additional information about what, exactly, is in the January 6 volume—and how, if at all, it relates to the case against Nauta and De Oliveira. The government complied with that request yesterday, and appears to have filed sealed material supporting its response. 

In other words, at least as of a little after 7:00 ET on Monday morning, (1) Cannon’s injunction is still in effect; (2) it is currently set to expire at midnight tonight; (3) Nauta’s and De Oliveira’s request to extend it remains pending before Judge Cannon; and (4) the government’s appeal of the injunction (in its current form) remains pending in the Eleventh Circuit. If your head is spinning, you’re not alone.

Which brings the timeline back to where we started; and we’ll probably be here tomorrow:

Well after 7 p.m., and no filing at #SCOTUS from Trump or the other Mar-a-Lago defendants. 

Looks like Volume I of the Special Counsel’s report (on the January 6 case) will be out in the world as soon as tomorrow.

At this point, this is screwy as shit. Cannon doubled down on her error by backing away from the DC report but reimposing an injunction on the MAL report. It seems to me that actually prevents Trump or the defendants from seeking relief from the Supreme Court, if only because Cannon has so badly muddled the record. That may be strategic on her part. The Court may well decline such a confused record, preferring to let the lower courts clean it up. (For one thing, somebody has to appeal Cannon’s new order and get a ruling from the 11th Circuit that the Supremes can review. The Supremes, or five of them, could decide to grab the case now, but the record is such a mess they’d spend an inordinate amount of time trying to straighten it out. I think they have enough to do.)

Now, will the circuit court overrule Cannon? The DOJ asked them to give that question and the question of the dismissal to the same panel. Will that delay the resolution? Probably. But that’s where the case is, and the chances of the Supremes stepping in are practically nil.

So what should happen?

The 11th should, IMHO, decide the injunction/jurisdiction issue as rapidly as they did before. Nothing has really changed except the party involved, and Cannon is running amok with a case that is no longer hers to adjudicate. She dismissed it, for pity’s sake!  If not for the appeal, that dismissal would have become final by now, ending her ability to act. The appeal ended her authority sooner, is all. She can’t reactivate a case she dismissed after the judgement becomes final anymore than she can after her dismissal is appealed.

Again, I emphasize this for a reason.

I am outraged that Cannon took these wholly unlawful actions which she has no authority to enforce. But court orders are lawful and enforceable until they are declared unlawful and unenforceable…by a superior court. That’s the system, and we can’t undo it for one circumstance we don’t like.

I’m referring to all the commentary that Biden should use the power Trump v US gave him to release the MAL report. But Biden releasing both reports on his own authority would not be a criminal violation of law. It wouldn’t even be criminal contempt, since it wouldn’t be done in the presence of any court (of competent jurisdiction). It might arguably be civil contempt, but no court is going to level that charge against a sitting POTUS. Especially when Biden could use the DOJ’s argument that Cannon had no  jurisdiction over the AG, the report itself, or, arguendo, the POTUS. Separation of powers, IOW. Biden would not be in contempt of court; but he would be showing contempt for the courts. Something we might expect Trump to do; if he had the balls to back up his mouth.

Biden can order Garland to release both reports, but he’d be doing so in defiance of a court order. I think the order is improper and unlawful, but my opinion and $5 will get you a cup of coffee at Starbucks. I can no more reverse that order than Biden can. All he can do is show contempt for it. And I don’t see the upside of that.

Trump will declare the report a sham and a hoax. And who will read it? I have a copy of the J6 Committee report, and I haven’t read it through. Most people will hear about these Special Counsel reports from Trump or news reports. And all indications are most Americans didn’t pay attention to any of the reporting on Trump’s campaign (that it was a complete farce obviously didn’t matter at all). Do they even know what happened on J6, and how involved Trump was in it? The media didn’t report on the J6 report enough to inform people of its conclusions. Do you think they’d do better with the Special Counsel reports? I can find out right now what the remaining defendants in Florida stand accused of, and why. Will the report tell me more?

I mean, I think it should be released. But I don’t think the courts should be treated with contempt, even when a judge’s behavior is contemptible. I think Alito’s opinion in Dobbs is absolutely indefensible; but that doesn’t mean Biden can reimpose Roe, or introduce a conflict between the states on whether or not it is still the state of the law. Nor can he pull these reports away from the courts and ask how many divisions the courts have.

This needs to work its way through the courts, and if it doesn’t by January 20th, that’s too bad. Those who fight dragons too long, become dragons themselves, Nietzsche supposedly said. This is not a matter worth releasing dragons over.