A higher authority threatens to thwart both President Trump’s efforts to fend off criminal charges relating to the documents found at Mar-a-Lago and Judge Aileen Cannon’s judgments regarding those efforts: the United States Court of Appeals for the 11th Circuit. 

That challenge came into focus as three riders of the 11th Circuit  vindicated the Department of Justice’s request that 100 classified documents — the core of the government’s case — be excluded from the purview of the special master’s review and the freeze imposed by Judge Canon. In other words, the DOJ can get back to work on its investigation. 

This is sure to jar Mr. Trump’s attorneys, who have enjoyed a sympathetic ear in Judge Cannon’s courtroom. On the heels of their bruising appearance before the special master, Judge Raymond Dearie, it now appears as if Judge Cannon’s solicitousness could be the exception, not the rule.      

In its 29-page opinion, the unanimous panel asserted that Mr. Trump “has not even attempted to show that he has a need to know the information contained in the classified documents,” and has not “established that the current administration has waived that requirement for these documents,” rejecting Mr. Trump’s blanket assertion of a canopy of privilege over the documents. 

Swatting down the argument that Mr. Trump retains a stake in the records, the riders asserted that “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.”

Brushing aside Mr. Trump’s expansive claims in respect of the presidential prerogative to declassify, the panel observed that “the record contains no evidence that any of these records were declassified.” Mr. Trump’s lawyers have resisted disclosing their posture on this question, indicating that they want to preserve it for trial. 

Even if they were declassified, the riders noted that focusing on that status would be a “red herring” because “declassifying an official document would not change its content or render it personal.”  This means that Mr. Trump has no ongoing claim to claw the records back into his possession.   

In a sharp jab at Judge Cannon, the appellate jurists said the district court made no “mention in its analysis” of “why or how” Mr. Trump would have an “individual interest in or need for the classified documents.” By granting the stay, the riders decided, the judge erred.    

The riders also noted that while “the threat of prosecution can weigh heavily on the mind of someone under investigation,” that alone is not enough to halt the process that could lead to an indictment. The law demands another harm aside from the specter of conviction.  

In a pre-taped interview that aired Wednesday on Fox News, Mr. Trump ventured an exotic argument on this head. The former president speculated to Sean Hannity that when “you’re the president of the United States, you can declassify just by saying, it’s declassified, even by thinking about it, because you’re sending it to Mar-a-Lago.”