For now at least, this up-is-downism is failing Trump in spectacular fashion.
That’s the upshot of a new federal appeals court ruling that allows the Justice Department to continue accessing classified documents seized from Trump’s Mar-a-Lago resort. That temporarily reversed District Judge Aileen M. Cannon’s previous order in favor of Trump, dealing a blow to Trump’s efforts to evade accountability for his hoarding of state secrets.
Again and again, the ruling asserts in various ways that Trump is not entitled to privileged treatment, that he is not above the law. Meanwhile, in a jarring contrast, Trump appeared Wednesday night in Sean Hannity’s hermetically sealed-off Fox News universe, where actual legal arguments against him were treated as if they simply don’t exist.
The ruling’s upshot is that Trump’s tactics in court — which relied on a friendly judge to delay the investigation for as long as possible — have been decisively upended. The Justice Department had sought narrow relief from Cannon’s district court ruling by requesting continued access to approximately 100 classified documents seized in the search.
The court granted that. But it also telegraphed with unusual clarity that in the long run, Trump’s arguments will fail, meaning the investigation will continue.
“It’s about as thorough a repudiation of the district court’s ruling as one could get,” Stephen Vladeck, a law professor at the University of Austin at Texas, told me.
The appeals court ruling systematically dismantled many of the dubious arguments that Cannon employed to halt the investigation.
First, the ruling rebuked the idea that Trump has a legitimate “interest” in the classified documents, which had been based on the specious claim that a handful of seized documents were personal. The ruling archly noted that this latter fact didn’t concern documents that were actually classified:
For our part, we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings.
Translation: What the bleedin’ heck is Trump even doing with all these highly classified secrets, anyway?
The ruling also knocked down the idea that Trump had declassified the documents, calling this a “red herring.” After all, it noted, even if Trump had declassified them (which he didn’t), that wouldn’t mean he had a legitimate interest in getting them back.
In short, the ruling reaffirmed that Trump is not entitled to these documents. They belong to the public. What’s more, the ruling declared that the public has a legitimate interest in the government investigating whether his hoarding of them posed a serious national security threat, and if so, how.
Meanwhile, the ruling also dismantled one of Cannon’s most contested arguments of all: That as an ex-president, Trump would face unusual “stigma” associated with an ongoing prosecution, giving the lower court cause to intervene in the investigation.
To knock this down, the ruling noted that Trump is not entitled to such a presumption. If the stigma associated with prosecution were an argument for a court to intervene, it said, that could be invoked by “every potential defendant.”
Of course, Cannon’s idea was in effect that Trump is not any old “potential defendant.” It was that he should get special treatment. The ruling said, in effect: No he should not.
Put this all together and the ruling affirms that the law should be applied to Trump, just as it is to everyone else. As a private citizen, he doesn’t retain magical declassification powers. He doesn’t get to keep classified documents that belong to the public. And he doesn’t get special treatment that places him above any other potential defendant.
“It’s restoring a sense of normalcy to a dispute that had gotten hijacked,” Vladeck told me.
In short, Trump is not being victimized here. He’s being subjected, at least for now, to the rule of law.
The lengths to which Trump and his propagandists go to cast him as uniformly a victim of lawless prosecutorial overreach is remarkable. Even as this ruling came out, journalist Aaron Rupar flagged the following exchange on Hannity, in which Trump accused the FBI of planting incriminating information at Mar-a-Lago:
TRUMP: Did they drop anything into those piles? Or did they do it later? There’s no chain of custody here with them.
HANNITY: Wouldn’t that be on video tape, potentially?
TRUMP: I’d — nah, I don’t think so. They’re in a room.
You may recall that for a time, Trumpworld threatened to release Mar-a-Lago surveillance footage that would expose the search’s truly jackbooted nature. Shockingly, he hasn’t released anything yet. Hannity correctly asked whether such footage would confirm Trump’s claims, but then accepted Trump’s dissembling and politely moved on.
Trump will no doubt rage at this new ruling. But he won’t be angry because the law is treating him differently. He’ll be angry because it isn’t.