The Justice Department clearly hopes that the Eleventh Circuit’s likely ruling in its favor could be used to abort the special-master review process currently underway.
The United States Court of Appeals for the Eleventh Circuit quickly granted the Justice Department’s application that it expedite the government’s appeal of Florida federal district judge Aileen Cannon’s order granting former president Donald Trump a special master to review materials seized from his Mar-a-Lago estate. Although over 11,000 documents were seized by the FBI pursuant to a court-authorized search warrant, the appeal is technically limited to the approximately 100 classified documents recovered in the search.
I say “technically” limited because the Justice Department clearly hopes that the Eleventh Circuit’s likely ruling in its favor could be used to abort the special-master review process that is currently underway.
The special master, senior federal district Judge Raymond Dearie (of the Eastern District of New York, sitting in Brooklyn), is conducting the review. Its purpose is to determine which seized documents may have portions covered by attorney-client or executive privilege and thus should not be revealed to agents and prosecutors working on the criminal probe. The former president is under investigation for potentially violating the Espionage Act by mishandling classified information, as well as for obstruction and unlawful retention of government records.
In a column last night, I elaborated on the litigation before the Eleventh Circuit, concluding that the appellate court was highly likely to grant the government’s request to expedite the appeal. Rich and I also discussed the case at length today when we recorded The McCarthy Report podcast.
Trying to forefend a near certain loss in the Eleventh Circuit, Trump yesterday filed an emergency appeal in the Supreme Court, claiming that the Eleventh Circuit lacks jurisdiction. I pointed out in a column this morning that this is an ironic position: The problem at the heart of this controversy is that — as the Eleventh Circuit has already observed — Judge Cannon lacked jurisdiction to grant the special master in the first place.
In any event, some analysts wondered whether the Eleventh Circuit would wait to see what the Supreme Court (specifically, Justice Clarence Thomas who is the relevant Circuit Justice) would do with Trump’s appeal before deciding what to do with the Justice Department’s request to expedite the appeal. But there was no need to wait. The Circuit already ruled in the Justice Department’s favor on September 21, when it lifted the injunction Judge Cannon had imposed barring the government from using the seized documents (including the classified documents) in its continuing investigation.
In so ruling, after thorough briefing by the parties, the three-judge panel (including two Trump appointees) concluded that Cannon lacked jurisdiction. At issue now is not a motion regarding the injunction but the merits appeal of Judge Cannon’s ruling, but the issues raised are essentially the same. The Circuit has already concluded that the government is likely to prevail (otherwise, it wouldn’t have lifted the injunction).
Plainly, that is why Trump is seeking the Supreme Court’s intervention. But the Court is virtually certain to decline to entertain the matter now. It will instead wait for Trump to make his arguments to the Eleventh Circuit. Once the Circuit rules, Trump can consider appealing to the Supreme Court at that point. I doubt the Court will take the case even at that point, for the reasons I explained in this morning’s column.
When the government asked the Eleventh Circuit to lift Judge Cannon’s stay, Trump’s lawyers responded with the same jurisdictional argument they now hope the Supreme Court will entertain. The Circuit judges were so unpersuaded, they gave the argument the back of the hand in a footnote of their 29-page opinion.
The briefing schedule the Circuit announced in its short order on Wednesday anticipates that the Justice Department will file its brief by next October 14 (a week from Friday). Trump’s responsive brief would be due on November 10, and the government — because it is the appellant — will be permitted to file a responsive brief the following week, on November 17. The Circuit did not set an argument date, but we can anticipate that it will be in late November or early December. There is no deadline for the Circuit to rule, but I expect it will be prompt.
As I explained in last night’s column, although the Justice Department limited its appeal to only the 100 classified documents, not the 11,000-plus non-classified documents, its contention is that Judge Cannon lacked jurisdiction to grant Trump’s special-master petition. In the litigation over the injunction, the Circuit panel agreed with the government on this point. I would expect the Circuit to reaffirm its rationale in the merits appeal. Consequently, even though only the 100 classified documents central to the appeal would be directly affected, the Justice Department could then go back to Cannon and ask her to reconsider her ruling as to the other 11,000 documents based on the Circuit’s conclusion that she lacked jurisdiction and thus should not have granted a special master in the first place.
If Cannon agreed, that could abort the special-master review process, there and then. Prosecutors, however, could also stay their hand, on the theory that (a) the non-classified documents, while not unimportant, are not nearly as critical to the government’s investigation as the classified documents, to which the Circuit has already restored the government’s access; and (b) Judge Dearie, the special master, has seemed sympathetic to the government’s arguments and is likely to agree with prosecutors that Trump cannot legitimately assert executive privilege against the executive branch.
On the other hand, Judge Dearie would not be the last word. A special master merely makes recommendations; Judge Cannon, who is presiding over the case, would make the final rulings. From the Justice Department’s perspective, that would probably tilt the balance in favor of asking Cannon to abort the special-master review.