Though the justices were unlikely to intervene at this juncture anyway, the solicitor general’s brief has given them ample cause not to.
Though the justices were unlikely to intervene at this juncture anyway, the solicitor general’s brief has given them ample cause not to.
T he government has urged the Supreme Court to reject a request from former president Donald Trump that the Court intervene in ongoing litigation over Florida federal district judge Aileen Cannon’s appointment of a special master in the legal fight over documents seized in a search of Trump’s Mar-a-Lago estate.
The Justice Department explained its position in a 32-page brief filed on Tuesday by Solicitor General Elizabeth Prelogar. My assessment when Trump appealed to the high court last week was that the government would be pushing on an open door: The justices would want no part of this case, particularly at this premature stage when Trump has not been charged with a crime, when the case is currently before the Eleventh Circuit Court of Appeals on an expedited schedule, and when the flaws in Judge Cannon’s order involve a straightforward application of Eleventh Circuit precedent which doesn’t conflict with other federal appellate courts’ precedents.
Nevertheless, the solicitor general has given the Court compelling reasons not to intervene.
Her brief recounts that, although it disagrees with Judge Cannon’s September 5 special-master order in its entirety, the government asked the Eleventh Circuit to grant an emergency stay of that order only insofar as Cannon had (a) required that approximately 100 classified documents seized by the FBI pursuant to the Mar-a-Lago search be included in the privilege review being conducted by the special master; and (b) forbade the government from using those classified documents in its ongoing criminal investigation of whether Trump mishandled national-defense secrets and committed obstruction (among other possible offenses).
SG Prelogar further notes that, while the Eleventh Circuit sided with the government on both these points, Trump’s lawyers challenge only the Circuit’s ruling on the first point in their appeal to the Supreme Court. Clearly, this is because Trump is claiming — weakly, in my estimation — that the appellate court lacked jurisdiction to rule on the first point. There is no plausible claim that the Eleventh Circuit lacked jurisdiction under federal law to review an injunction against the government’s use of evidence lawfully seized in a criminal investigation. So instead, Trump’s team takes aim at the Eleventh Circuit’s interference in the special-master review, which it portrays as an ancillary process — a mere subplot in the ongoing district-court litigation.
Generally speaking, cases cannot be appealed until they are concluded, or at least until a critical issue has been resolved by a final order. But the Trump team’s argument is meritless, anyway. The solicitor general endorses the Circuit’s sound conclusion that it had what’s known as pendent jurisdiction to issue a ruling that affected the special-master review. (See Circuit opinion, p. 15 n.3.) Under that doctrine, if the appellate court has jurisdiction to rule on a matter such as the injunction, it further has jurisdiction to rule on matters that are pendent to that matter — i.e., closely connected to it. Because Cannon’s special-master order was “inextricably intertwined” with the order barring the government from using the classified documents (indeed, the injunction was meant to remain in place until completion of the special-master review), the Circuit clearly had the power to issue a ruling that limited the special master.
Even more basically, the solicitor general argues, the special-master process was part of an order granting an injunction. That makes the entire order — all of its terms — reviewable by the Circuit under the plain text of the statute that controls the jurisdiction of federal appeals courts to review orders issued by lower courts during litigation (namely, Section 1292(a)(1) of Title 28, U.S. Code).
Finally, the Justice Department contends that an order in ongoing litigation that directs the government to disclose classified documents, the dissemination of which could damage national security, fits into a narrow category of “collateral orders” which qualify for appellate review. Citing Supreme Court and D.C. Circuit precedent, the solicitor general argues that such orders are immediately appealable if they (1) are “conclusive”; (2) “resolve important questions separate from the merits” of the underlying lawsuit; and (3) would be “effectively unreviewable” if appeal were delayed until a final judgment. Prelogar posits that those conditions are met here: Judge Cannon’s order conclusively determined that the government should disclose the classified materials in the special-master process; compelling the disclosure of national-defense secrets outside the executive branch is patently an important issue separate from the merits of Trump’s privilege claims; and if the materials are disclosed now, that disclosure can’t be undone by a later appeal.
Each of the government’s contentions is convincing and would, on its own, be sufficient justification for the Supreme Court to decline to intervene at this point. Certainly, the justices will want to wait to see what the Eleventh Circuit does with the government’s full, expedited appeal of Cannon’s order, which could be decided in November or early December.
On that score, the government’s brief clarifies a point about which I was confused. I had understood that the Justice Department had limited its appeal of Judge Cannon’s order to the 100 classified documents, not to the full order, which consigns to the special-master review upwards of 11,000 documents seized from Mar-a-Lago. The solicitor general explains, to the contrary, that only the government’s earlier motion in the Eleventh Circuit to stay Cannon’s order was narrowly focused on the 100 classified documents. The full appeal now before the Eleventh Circuit pertains to all of Judge Cannon’s order, not just the classified documents.
By winning the earlier motion for a stay, the government got back access to the classified documents and was not required, at least for now, to surrender them to the special master. In the full appeal, however, it hopes to establish that Cannon did not have jurisdiction to grant a special master at all. That would effectively end the privilege-review process now being conducted by the appointed special master, senior federal district judge Raymond Dearie (of the Eastern District of New York, in Brooklyn).
The Eleventh Circuit is very likely to side with the government when ruling on its full appeal, for the same reasons that the three-judge panel gave in vacating the stay as it pertained to the classified documents. If it does, Trump’s team can then try again to seek review in the Supreme Court. I am deeply doubtful that the Court would be inclined to entertain such an appeal — which would urge, in essence, that federal judges should micromanage pending criminal investigations, even when no one has yet been charged and there has been no claim of a constitutional violation. (As Solicitor General Prelogar emphasized, Trump’s team does not allege that the Mar-a-Lago search violated the former president’s Fourth Amendment rights.) Which means that the government’s odds of ultimately getting its way in this matter remain high.