DOJ has a persuasive argument, even as Trump seeks intervention from the Supreme Court.
DOJ has a persuasive argument, even as Trump seeks intervention from the Supreme Court.
A day after Judge Aileen Cannon intervened on former president Donald Trump’s behalf, against the very special master whom she had appointed at his request and recommendation, the Justice Department asked the Eleventh Circuit Court of Appeals to rule, on an expedited basis, that Cannon lacked jurisdiction to appoint a special master in the first place.
As previously detailed here, a three-judge panel of the Circuit, including two Trump appointees, has already unanimously vacated Judge Cannon’s directives that (a) included 100 documents bearing classification markings in the review by the special master, senior Judge Raymond Dearie, and (b) barred the government from using those documents in its ongoing criminal investigation of the former president, pending the completion of Judge Dearie’s review. Beyond that, the appellate court set a timetable for a full review of Judge Cannon’s rulings, to the limited extent that they affect the 100 classified documents. Under that schedule, the matter would not have been fully briefed until December 9, with no date for argument set. Assuming the Trump team sought delays, as has been its wont, the appeal would not be decided until well into 2023, unless the government sought and the Circuit granted an expedited process.
The Justice Department filed its request for an expedited appeal last Friday (September 30). On Tuesday (October 4), the Trump team attempted to move the case out of the Eleventh Circuit by asking the Supreme Court to intervene. As I will explain in a separate post, the high court is virtually certain to decline to get involved in the case at this premature stage. Expect the justices to reject Trump’s application for now, and for the Eleventh Circuit to agree to resolve the Justice Department’s appeal on a fast track — after which Trump could again seek Supreme Court review.
For all the ado, there is less happening here than meets the eye. We are getting an object lesson, however, in why litigation is supposed to proceed before one court at a time — i.e., why, once an appeal is filed in the federal system, the lower (“district”) court loses jurisdiction and must wait for the higher (“Circuit”) court to decide the appeal before taking further action; and why the Supreme Court will generally stay its hand until proceedings in the courts below have run their course. Things get confusing when courts of differing rank act on the same case at the same time, so they usually try to avoid that.
Here, what triggered the ensuing, multi-tier activity was Judge Cannon’s wayward decision to grant President Trump a special master. In the search of Trump’s Mar-a-Lago residence, conducted on August 8, pursuant to a court-authorized warrant, the FBI seized 11,000-plus documents and other items. Cannon probably lacked jurisdiction to grant Trump a special master, and delayed in doing so until nearly a month after the search. The purpose of the special master’s review of the seized materials is to determine (a) which documents are subject to claims of attorney-client or executive privilege, and (b) which documents are personal records, as opposed to presidential records, as those categories are defined by the Presidential Records Act (PRA).
To make a long story somewhat shorter, though the Justice Department believed that Judge Cannon’s ruling was wrong in its entirety, it limited its appeal before the Eleventh Circuit to just the 100 classified documents. In other words, the government acceded to the special-master process for the non-classified materials — i.e., the remaining 11,000 documents. That is why we have the unusual, maddening situation of ongoing proceedings in the lower court even as an appeal is proceeding in the Circuit.
The special master, Judge Dearie, had tried to move the privilege review process along expeditiously. Though matters were slowed by difficulties in finding a vendor willing, at Trump’s expense, to digitize the seizures (the documents are estimated to comprise over 200,000 pages), Dearie directed a process in which Trump would receive the documents in installments every few days (rather than waiting until all of them were digitized to get them), and would immediately begin lodging his privilege and PRA claims on a “rolling basis” (i.e., as he received each installment). Dearie also expected the Trump team to provide any evidence that would back up the former president’s public claims that he had declassified the documents bearing classification markings and that the FBI had planted incriminating evidence.
Nevertheless, in a six-page order on September 29, Judge Cannon (whom then-president Trump appointed to the federal district court in Florida in 2020) intervened on Trump’s behalf against the special master — extending the timeline, and rejecting Dearie’s directives that Trump (1) file his claims on a rolling basis (Cannon would let him wait until he has received all the documents), (2) provide evidence supporting his public claims, and (3) fully explain his theory for any assertion of executive privilege (see my column from last week).
The next day, the Justice Department asked the Eleventh Circuit to expedite the pending appeal.
Over two weeks ago, when it first decided to appeal, the Justice Department was clearly concerned that the appellate process could bog down its investigation for months. That is why it sought a narrow review. Instead of appealing the entirety of Cannon’s special-master ruling, prosecutors focused only on the classified documents and the damage caused to the government’s interests by Cannon’s inclusion of them in the special-counsel privilege-review. Moreover, prosecutors initially sought to persuade the appellate court merely to lift Cannon’s injunction against their use of the classified documents in the criminal investigation. On that, the government felt confident it could win quickly because (1) it was highly unlikely that Trump could have plausible privilege claims in connection with government’s national-defense secrets, and (2) Judge Cannon’s hamstringing of a criminal investigation, which is trying to determine whether such secrets are still missing or have fallen into the wrong hands, was patently against the public interest.
This strategy succeeded beyond the government’s modest hopes. In vacating Cannon’s restrictions, the unanimous Circuit panel unmistakably signaled that it believes that Cannon should not have granted Trump’s special-master petition in the first place, and that Trump’s executive-privilege claims, at least as to classified materials, are untenable.
Then, in the aftermath, far from being tamed by the Circuit’s slap-down, Judge Cannon curiously countermanded the reasonable directives of the highly experienced, widely respected Dearie. In its frustration, the Justice Department has gotten more aggressive. It has now asked the Eleventh Circuit not only to expedite the appeal but to follow the logic of its September 21 ruling (the afore-described lifting of Judge Cannon’s injunction) and rule that Judge Cannon lacked jurisdiction to grant Trump’s special-master petition. Reading the same tea leaves, Trump’s lawyers figure they haven’t got much of a shot at winning in the Eleventh Circuit, so they’ve made their improbable request to kick the case up to the Supreme Court.
This chess game can be head-spinning for the non-lawyer, so let me try to simplify.
For tactical reasons (i.e., to try to notch a quick win that would keep the most important aspect of its criminal investigation on track), the Justice Department focused solely on the classified documents in its appeal. More fundamentally, however, to grant a special master to review all of the documents (classified and unclassified), Judge Cannon needed jurisdiction — which refers to the court’s legitimate authority to rule on an issue. She claimed to have what the law calls equitable jurisdiction.
We need not get into the weeds on what equitable jurisdiction is. For present purposes, the salient question is: What triggers equitable jurisdiction? Everyone agrees that the precedent by which Cannon was bound was the Eleventh Circuit’s 1975 decision in a case called Richey. First and foremost, Richey required Trump to show that the government exhibited “callous disregard for [his] constitutional rights.” There was no such showing, and Cannon did not claim otherwise. (Trump’s rights were respected throughout: The search was conducted only after the government obtained a court-authorized warrant, and the procedure for filtering privileged material that the government applied to the seized documents was implemented only after it was explicitly authorized by the magistrate judge who issued the warrant.)
Instead, Cannon rationalized that the other Richey factors weighed in Trump’s favor. She was wrong about that, as the Circuit explained (and as I discussed here, here and here). But we need not retrace that ground. The Circuit concluded that even if Trump’s position on the other Richey factors had truly been stronger, his failure to come close to showing a flagrant violation of his constitutional rights was dispositive. (I would add, however, that the panel also relied on a 1987 opinion by D.C. Circuit Judge Laurence Silberman, the iconic jurist whose passing we’ve mourned in recent days, who explained that prospective criminal defendants are not permitted to “circumvent federal criminal procedure” by filing “ancillary equitable proceedings.”)
The Circuit’s reasoning on the jurisdiction question is crucial. Even though the Justice Department nominally limited its appeal to the classified documents, if Judge Cannon did not have jurisdiction, then she had no legitimate basis to grant a special master — for any of the documents. Consequently, if the Circuit panel expedites the appeal and simply reaffirms what it has already said about Cannon’s lack of equitable jurisdiction, Cannon could be forced to reverse herself entirely on the special master. That would abort Dearie’s review process. Such an outcome would give the government full and immediate access for investigative purposes to not only the classified documents but all 11,000 documents.
The Justice Department is also asking the Circuit to conclude that Trump has no plausible claim of executive privilege. As we’ve previously discussed, the doctrine that a former president retains executive privilege is deeply flawed (as illustrated by court decisions that readily find reasons to dismiss such privilege claims even after paying lip service to the doctrine). Furthermore, the notion that the privilege — which belongs to the executive branch, to facilitate the duties of the presidency — could be asserted against the executive branch itself is untenable. Consequently, the government has a very good argument that Trump has no viable executive-privilege claims to make.
If prosecutors persuade the Circuit to rule that way, the special master’s review process (assuming there is one) would be curtailed significantly. The government has already segregated hundreds of documents that it concedes may be subject to attorney-client privilege. In that regard, it has said it was over-inclusive (deeming as potentially privileged any document that merely contained names of lawyers, even if careful reading might show it not to be privileged). If the government has already done an adequate filtering for attorney-client privilege, and if the court were now to rule that Trump does not have executive privilege, there would not be anything for a special master to do as far as a privilege-review. (Theoretically, the special master could still review the documents for PRA purposes — to sort out which records are personal versus which are presidential — but that would have little or no bearing on the government’s investigation. Even if materials are deemed personal, the government may retain them for now if they are relevant to the investigation; and if personal items are not relevant, the government would likely return them anyway. Under the PRA, presidential records are the property of the government and would not be returned to Trump in any event.)
All that said, though, I doubt the court will wade into the executive-privilege question. First, if the appellate panel finds that Cannon did not have jurisdiction to grant a special-master petition (as I believe is likely), then the privilege point would be moot. (Trump would still be able to make privilege arguments later on, if prosecutors charged him with a crime and he claimed that they had done so in improper reliance on privileged information.) Second, to the extent the panel’s first opinion addressed potential executive-privilege claims, it did so only briefly and with reference to “the classified materials” (finding “no reason to expect” that the government’s use of such materials risked improper disclosure of Trump’s privileged information). The court will not want to grapple with potential privilege claims as to the nonclassified material; after all, the government represented that it was not appealing those documents. Third, and relatedly, the court will not want to decide privilege claims in the abstract, with no court having scrutinized an actual document concerning which Trump made a concrete privilege claim. While the court felt confident in concluding that classified intelligence reports are highly unlikely to be privileged, it would probably resist going out on the limb to rule, sight unseen, that no seized document could conceivably be privileged.
To summarize, the Justice Department has a persuasive argument in favor of an expedited appeal and a ruling from the Circuit that Judge Cannon lacked jurisdiction to grant Trump’s special-master petition. It is reasonable to suspect, moreover, that the Circuit will not be pleased by Cannon’s extraordinary interventions on Trump’s behalf against the special master. Not when, just days earlier, the unanimous panel had strongly suggested that Cannon should not have appointed the special master to begin with, and that criminal suspects should not be encouraged to file civil lawsuits for the purpose of delaying or derailing criminal investigations. And watching all of this, the Supreme Court will say “no thanks” to Trump’s invitation to enter the fray prematurely — and the justices probably hope to stay out of it completely.