In my more than 25 years of practice as a criminal and civil judge (including three years as an Assistant US Attorney), I do not believe I have read an appellate decision that was more dismissive of the lower court. The 11th Circuit sent a clear message to Judge Cannon and Trump: stop doing this. Let’s take them one by one.

  1. The 11th Circuit (in footnote 4 of its decision) expressly threw cold water on the idea that the FBI raid was designed solely to harass Trump: The Supreme Court has recognized an exception to this general rule—where “threats to enforce statutes against appellees are not made with any expectation of valid convictions, but are part of a scheme to arrest, seize, and threaten prosecution under color of the harassment statute of the appellants”. Plaintiff has made no such allegation here, nor do we see any evidence in the record to support it.
  2. The 11th Circuit completely overruled Judge Cannon’s finding that the prospect of criminal prosecution was a harm from which Trump deserved protection: Second, we find Plaintiff’s insistence that he would be prejudiced by a criminal investigation unpersuasive. “To bear the trouble and expense of a prosecution for a crime even by an innocent person is one of the painful obligations of citizenship.” Cobbledick v. United States, 309 US 323, 325 (1940). “In my more than 25 years of practice … I don’t think I’ve read an appellate decision that was more dismissive of the lower court.”
  3. The 11th Circuit literally held that none of the relevant factors favored granting Trump’s injunction: In sum, none of the Richey factors favors the exercise of equitable jurisdiction in this case. Accordingly, the United States is substantially more likely to succeed in proving that the district court abused its discretion in exercising jurisdiction over Plaintiff’s motion with respect to the classified documents.
  4. The 11th Circuit also fired Judge Cannon’s attempt to split the baby by holding that the intelligence community could continue its national security review of the 100 classified documents, but the FBI could not do any criminal work with them the documents: This distinction is unfounded. Through [Assistant Director of the Counterintelligence Division of the FBI] In Kohler’s statement, the United States has adequately explained how and why the national security review is inextricably intertwined with its criminal investigation. When matters of national security are involved, “we must give substantial weight to an agency’s affidavit.”
  5. The 11th Circuit also upheld the Justice Department’s argument that allowing the Special Master—or Trump’s defense team—to review the 100 classified documents would cause “irreparable harm” to the United States. The United States also argues that allowing the special master and Plaintiff’s counsel to review the classified records would separately inflict irreparable harm. We agree. The Supreme Court has recognized that for reasons “too obvious to require extended discussion, the protection of classified information must be committed to the broad discretion of the appropriate agency, and that must include broad discretion in determining who may have access to they”. As a result, courts should order review of such materials only in the most extraordinary circumstances. The record does not allow the conclusion that this is such a circumstance.
  6. Finally, the 11th Circuit essentially held that the DOJ had already satisfied the most important element of a potential prosecution under the Espionage Act (18 USC Section 793(d). Here’s what Section 793(d) says: “Whoever, lawfully possessing [a document] relating to the national defense, which information which the possessor had reason to believe might be used to the injury of the United States or to the advantage of any foreign nation … willfully withholds and fails to deliver upon demand to the officer or employee of The United States entitled to receive it” violates the Espionage Act and “shall be imprisoned not more than ten years” for each document willfully withheld. Yesterday the 11th circuit was held: The documents in question contain information “the unauthorized disclosure of which would reasonably be expected to cause extremely serious harm to national security.” The 11th Circuit almost certainly chose this parallel language to send Judge Cannon and Trump a message: the former president has no legal defense to an indictment for violating the Espionage Act. If charged, the indictment will not be dismissed. If convicted, the conviction will not be overturned. In short, since the documents were properly marked as classified in the first place, Trump is wrong. In summary, my view of the 11th Circuit’s response to Judge Cannon’s order is best captured by Vincent LaGuardia Gambini in his opening statement in the 1992 film My Cousin Vinny: “Everything the guy said is bullshit.”