emptywheel: Aileen Cannon Prioritized Donald Trump's Reputation over CIA Assets' Lives

[Nevilledog]

Link to tweet

https://www.emptywheel.net/2022/09/06/aileen-cannon-prioritized-donald-trumps-reputation-over-the-lives-of-cia-assets/

I mentioned the Richey factors yesterday: the now-11th Circuit precedent laying out factors a judge should consider before nosing into the government’s warranted seizure of a subject’s property. Here’s how Judge Cannon laid them out before deciding she should nose into the government’s business.

In making this determination, the Court relies in part on the factors identified in Richey v. Smith. 515 F.2d at 1245. 9 In that case, the former Fifth Circuit counseled courts to consider, for equitable jurisdiction purposes, whether the government displayed a callous disregard for the movant’s constitutional rights, whether the movant has an individual interest in and need for the seized property, whether the movant would be irreparably injured by denial of the return of the seized property, and whether the movant otherwise has an adequate remedy at law.

As I laid out, Cannon did some crazy-ass stuff to get past the second factor, property ownership. She used materials that Trump might not even own that she herself had prohibited the government to share with Trump’s lawyers last week, then usurped the authority of the President of the United States (among other things), to claim that Trump had a property interest in the 11,000 stolen government documents the FBI seized on August 8.

Her argument about the irreparable harm that Trump faces because the government seized 11,000 documents — some highly classified — that he refused to return is still more appalling. I just want to look at one part of it, but I know you’ll all enjoy the bit where she says it would harm Trump’s reputation to be charged with a crime.

The same reasoning contributes to the Court’s determination that the third factor—risk of irreparable injury—likewise supports the exercise of jurisdiction. In addition to being deprived of potentially significant personal documents, which alone creates a real harm, Plaintiff faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public.11 Further, Plaintiff is at risk of suffering injury from the Government’s retention and potential use of privileged materials in the course of a process that, thus far, has been closed off to Plaintiff and that has raised at least some concerns as to its efficacy, even if inadvertently so. See infra Discussion III. Finally, Plaintiff has claimed injury from the threat of future prosecution and the serious, often indelible stigma associated therewith. As the Richey court wrote, “a wrongful indictment is no laughing matter; it often works a grievous, irreparable injury to the person indicted. The stigma cannot be easily erased. In the public mind, the blot on a man’s escutcheon, resulting from such a public accusation of wrongdoing, is seldom wiped out by a subsequent judgment of not guilty. Frequently, the public remembers the accusation, and still suspects guilt, even after an acquittal.” 515 F.2d at 1244 n.10; see also In the Matter of John Bennett, No. 12-61499-CIV-RSR, ECF No. 22 pp. 26–27 (S.D. Fla. July 23, 2013) (explaining that, although some courts have rejected Richey’s observation as to the harm posed by indictments, Richey remains binding on district courts in the Eleventh Circuit). As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.

11 When asked about the dissemination to the media of information relative to the contents of the seized records, Government’s counsel stated that he had no knowledge of any leaks stemming from his team but candidly acknowledged the unfortunate existence of leaks to the press. [my emphasis]

Yes, it is outrageous that Aline Cannon places more value on Trump’s reputation than those of hundreds of people he has falsely accused over his lifetime, most notably the Central Park Five, but also including Hillary Clinton and John Bolton, both of whom he falsely accused of the crime for which he is currently under investigation.

*snip*

[deminks]

1. Sleeper cell judge/Manchurian judge.

Just doing what she promised to do to get appointed. Flip her switch and she performs.

[2naSalit]

2. Yes she did.

[Bev54]

3. I always read Empty Wheel to get a proper perspective and because she

wades through the bs printed in the press, especially with NYTimes and WaPo.

[crickets]

4. She does cut through the BS very well. nt