Another possible DOJ strategy (NARA-lago)

[BootinUp]

Secrets and Laws
@secretsandlaws

I'll bet DOJ is contemplating filing a motion for reconsideration rather than seeking immediate appeal. Why if it will be futile? To attach a declaration from an FBI Special Agent detailing the harm to nat'l security that may result from any restrictions on FBI's investigation./1

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I'll bet DOJ is contemplating filing a motion for reconsideration rather than seeking immediate appeal. Why if it will be futile? To attach a declaration from an FBI Special Agent detailing the harm to nat'l security that may result from any restrictions on FBI's investigation./1

As explained below, DOJ has a strong argument that restrictions on its investigation into potentially EP docs that are classified will (a) harm the IC assessments and (b) harm its own active counterintelligence investigation into what has transpired. /2

The problem when you're looking to appeal is that an appeals court might look at this argument and say "fine, but can you point me to factual support for this in the record?" Appeals courts are used to having a record. That's understandably difficult to create in emergency... /3

...litigation seeking a preliminary injunction. With the benefit of hindsight, DOJ would love to have a declaration from an FBI agent making the points in my earlier tweet about the nat'l security issues at stake, and how you can't separate the FBI investigation and IC review. /4

You can get that in by filing a motion for reconsideration. Yes, she'll deny it and there will be a delay, but then the FBI declaration will be part of the district court record. And then if I'm DOJ, I appeal only to the extent the SM is considering executive privilege. /5

That way, you get the SM appointed & working through the attorney-client privilege & personal record issues. If you lose EP on appeal, at least the SM will already be in place. And seeing how things go with the SM will allow DOJ to determine whether to give up on the appeal./6

But most importantly, this allows you to get the FBI declaration in the record, and then the 11th Circuit can hang its hat on that declaration. Even a favorable panel for DOJ will be leery of making a sweeping decision about an FPOTUS's inability to claim executive privilege. /7

The declaration allows the court to say: "Based on the unique and serious nat'l security issues raised in this case, we find that any potential EP assertion is overriden by the current Executive's compelling need to conduct its investigation into these records. See FBI Decl." /8

Narrow ruling. If DOJ does this, it will enhance its ability to win on appeal -- the delay is worth it IMO. Even the conservative Supreme Court would have problems ignoring this declaration. I would imagine the prosecutors are having this debate with Civil Appellate right now. /9

Civil Procedure Twitter can likely explain that it's not clear that the judge would even permit this filing under the standards for a motion for reconsideration (not a final order or based on newly discovered evidence), and she might not, but I don't see the harm in trying. /

Oh, and of course this declaration would give us yet another unprecedented view into an active national security investigation. Given the stakes, DOJ would likely reveal even more than it has previously, esp. about the work that lies ahead. So if you see this on the docket...

[Lovie777]

1. K & R . . .

[crickets]

2. Interesting. K&R for visibility.

[MustLoveBeagles]

3. K&R