On Thursday, writing for the National Review, conservative legal analyst Andrew McCarthy argued that last night's ruling by the U.S. Court of Appeals for the Eleventh Circuit nullifying Trump-appointed Judge Aileen Cannon's block on the DOJ's classified document investigation may have actually been a blessing in disguise for the former president — by relieving him of the need to make spurious legal claims that only put him in further jeopardy.
"It would be hard to fathom a more conclusive rejection of Judge Cannon’s ruling, notwithstanding that the government’s appeal challenged just a slice of it," wrote McCarthy. "The Eleventh Circuit panel observed that on the most critical question before the court — namely, whether the government had exhibited a 'callous disregard' for Trump’s constitutional rights — even Trump did not claim such a thing, and Judge Cannon concluded there was no such evidence. That alone would have been sufficient grounds to deny Trump’s special-master petition, let alone to carve the classified documents out of it."
The ruling only addresses the Justice Department's narrow request to allow them to review the documents marked classified; the special master, Senior Judge Raymond Dearie of Brooklyn, will continue to review the other thousands of documents for privileged material. Nonetheless, it is a legal defeat for Trump, who has demanded the classified information be returned to him and privately raged to his attorneys about the loss of "my" documents — even though he doesn't actually own them.
Even so, argued McCarthy, the appeals court decision is "probably doing Trump a favor" in the long term.
"As I detailed in a column on Wednesday, Judge Dearie seemed poised to order Trump’s counsel to provide evidence to back up the claim that the former president declassified the documents," wrote McCarthy. "With the Eleventh Circuit panel having now concluded both that Trump failed to proffer such evidence and that, in any event, Trump had no cognizable interest in retaining the classified intelligence, the point is moot. Since Dearie will not weigh privilege issues in connection with the classified documents, there is no need for Trump to try to persuade him that the documents are not classified."
"Bizarrely, Trump is apt to take that as encouragement to keep publicly claiming that he has declassified the documents," wrote McCarthy. "In the long term, those assertions are likely to be used as evidence against him. In the short term, they strengthen the hand of Justice Department prosecutors who are trying to persuade Attorney General Merrick Garland that Trump should be indicted."
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