District Judge Aileen Cannon on Thursday struck portions of her special master ruling barring the Justice Department from investigating former President Donald Trump just hours after the 11th U.S. Circuit Court of Appeals ripped apart her decision to halt the criminal probe.
The three-judge panel — which included two Trump appointees — said Cannon, a fellow Trump-appointee, "abused" her discretion by barring the DOJ from continuing to investigate the classified documents seized from Trump's Mar-a-Lago residence and allowed investigators to resume their probe.
"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," the panel said. "Classified documents are marked to show they are classified, for instance, with their classification level."
Cannon on Thursday issued a revised order stating that the special master in the case would review all documents "except the approximately one-hundred documents bearing classification markings." She also struck two portions from her original order preventing the DOJ from probing the classified documents during the special master review and requiring them to disclose the materials to the special master.
These are the two sections of Cannon's original order that she has now stricken: https://t.co/tttZG7qBz7 pic.twitter.com/zoVpAzXDAW
— Kyle Cheney (@kyledcheney) September 22, 2022
Some legal experts, like NYU Law Professor Ryan Goodman, say that Cannon's revised order essentially "erased Trump's chance to appeal to Supreme Court."
Steve Vladeck, a federal courts expert at the University of Texas School of Law, explained that Cannon's amendment doesn't "formally" kill Trump's ability to ask the court to vacate the stay — since the stay is still out there — but in practical terms, it makes it impossible.
"Cannon's amendment moots DOJ's appeal, and means Trump can't show any harm — let alone irreparable harm — that the Eleventh Circuit's stay is causing," he explained on Twitter. "So there's still *technically* a stay for #SCOTUS to vacate, but no possible legal justification for asking the Court to do so."
Former appellate lawyer Teri Kanefield agreed that "changing the order moots Trump's appeal to SCOTUS."
"I suspect that [Cannon] doesn't like being overturned on appeal and wants to avoid more appellate thrashings," Kanefield said.
Even if Trump does appeal, legal experts say he will likely lose.
"I know some justices have stunned us before, but I see no way they overrule 11th Circuit on this issue," tweeted Barbara McQuade, a former U.S. attorney and law professor at the University of Michigan.
Vladeck agreed that the odds of there being five votes to override the ruling — even on a court stacked with Trump appointees — are "exceedingly close to zero."
Former US Acting Solicitor General Neal Katyal explained that Trump can attempt to go to the US Supreme Court but "it's a loser every day of the week." He added that the former president got "obliterated" by the appellate court and that they confirmed what legal experts have been saying, "the whole declassification thing is a red herring."
