Late Wednesday night, the U.S. Court of Appeals for the 11th Circuit issued an emergency ruling that allows the Department of Justice to continue its unprecedented investigation into former president Donald Trump’s improper handling of classified documents.
The 11th Circuit’s ruling partially overturns a decision by U.S. District Judge Aileen M. Cannon that appointed a special master — Judge Raymond Dearie — to review the documents that the FBI seized from Mar-a-Lago. Her ruling paused the DOJ’s investigation until Dearie’s work is complete, but the 11th Circuit is now allowing the DOJ to continue its review of the classified documents.
The 11th Circuit’s ruling was issued by three judges — two of whom were Trump appointees. Who were these judges, and how were they chosen? And why did two Trump appointees side with the DOJ and overturn Cannon’s ruling?
Here’s what you need to know about how the U.S. Court of Appeals has reignited the DOJ’s investigation — and how it could have easily gone the other way.
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Who heard the DOJ’s appeal and why?
The U.S. Courts of Appeals hear cases in randomly selected three-judge panels. The three judges who heard the DOJ’s appeal were — by chance — two Trump appointees and one appointed by Barack Obama. At the U.S. Court of Appeals for the 11th Circuit, there are 11 active judges, of whom six were appointed by Trump.
District judges vary considerably in their ideological outlooks. As we’ve seen with Cannon, who sided with Trump on most points, which judge you get can dramatically influence the direction of your case.
By hearing cases in panels, the U.S. Courts of Appeals are designed to rein in district judges who make partisan rulings. The rulings of a three-judge panel are supposed to be at least slightly more representative of all U.S. Courts of Appeals judges than the ruling of any individual judge.
Is the FBI impartial? Over half of Republicans say ‘no.’
Trump could have won if different judges had been selected
The outcome of the DOJ’s appeal may have come down to which judges happened to hear the case. This panel had two Trump appointees, Britt Grant and Andrew Brasher, who were willing to side with the DOJ. The third judge, Robin Rosenbaum, was appointed by Obama.
We can’t know how any of the other judges on the 11th Circuit would have ruled, but it’s plausible that other Trump appointees, had they been selected, would have sided with Trump — as Cannon did. In other words, with a different panel of judges, the DOJ could have lost its appeal. That’s the risk the department took when it appealed Cannon’s ruling because it had no way of knowing ahead of time who would hear the case.
This system undermines the application of U.S. law
All this underscores a problem with how the U.S. federal court system is designed: When judges are highly partisan, it really matters which three judges you get.
In a study, I show how panel systems can undermine the consistency of law. Consistency means that courts would decide similar cases in similar ways, regardless of which judges are involved. In a fair legal system, the law is applied consistently. When there’s more variation in judges’ beliefs — as can happen when judges are more partisan — the outcomes of similar cases depend more on which judges are on the panel.
The uncomfortable reality of the U.S. legal system is that your odds of winning an appeal can come down to luck of the draw. As judges have become more partisan, the U.S. Courts of Appeals’ application of U.S. law seems increasingly unpredictable. The fairness of the system has eroded.
The DOJ has been strategic — and that could have made the difference
The panel that heard the DOJ’s appeal had two Trump appointees, so why didn’t Trump win? My research shows that when the facts of a case strongly favor one side over the other, which judges you get matters less. Even judges who don’t agree with you ideologically can’t easily ignore clear-cut facts. When the facts are weaker, there’s more room for judges to insert their partisan opinions into a case.
In this case, the facts clearly favored the DOJ. The government has a strong interest in protecting national security secrets, and Trump didn’t make a compelling argument that the documents at Mar-a-Lago that were marked classified had, in fact, been declassified.
No, presidents can’t declassify documents with Green Lantern superpowers
The strength of the facts in this case wasn’t an accident. Like many institutions with prosecutorial power, the DOJ is strategic in choosing which cases to prosecute, and it prefers to prosecute cases it is likely to win.
Attorney General Merrick Garland has been particularly careful in his handling of this case, which could result in the first indictment of a former president. For example, none of the three statutes that the DOJ cited in applying for the Mar-a-Lago search warrant hinges on the recovered documents actually being classified.
The DOJ’s investigation has been saved by chance
The fact that the DOJ has been so strategic in its handling of this case helps to mitigate the unpredictability of the U.S. Courts of Appeals. However, if the two Trump-appointed judges on the panel had been more partisan, the DOJ’s appeal could have easily gone another way. The DOJ’s history-making investigation into Trump has — at least for now — been saved by chance.
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Joshua C. Fjelstul (@joshfjelstul) is a postdoctoral research fellow in the department of political science and international relations at the University of Geneva and a researcher at the Arena Centre for European Studies at the University of Oslo.
Source link: https://www.washingtonpost.com/politics/2022/09/23/trump-maralago-documents-fbi-ruling/