In the seized-documents case, Trump is trying to convince the Supreme Court to intervene and reverse the Eleventh Circuit.
Even as the Justice Department is asking the Eleventh Circuit to expedite consideration of its appeal of Judge Aileen Cannon’s injunction against the government’s use of classified documents seized from Donald Trump’s Mar-a-Lago estate, the former president is trying to convince the Supreme Court to intervene and reverse the Eleventh Circuit.
It won’t work.
As I explained last night (in a column mainly about the Justice Department’s appeal to the Circuit), even if Trump’s position were colorable, the high court would not prematurely involve itself in the case. The justices would dismiss the emergency application Trump’s lawyers filed on Tuesday, without prejudice to their ability to seek Supreme Court review after the Eleventh Circuit — to which Trump can address his claims — has disposed of the Justice Department’s appeal.
As it happens, Trump’s position is not very colorable. In essence, Trump’s team has submitted to the Supreme Court a brief that presses, in 38 pages, a claim of which the three-judge Circuit panel (with two Trump appointees) thought so little they devoted all of a footnote to its rejection (specifically, footnote three on page 15 of the court’s 29-page opinion, most of which Trump’s Supreme Court submission treats as irrelevant).
Trump’s lawyers factitiously contend that the order the Circuit addressed was not really the order granting a special master. The lawyers insist that, technically, Judge Cannon’s original September 5 order — the order that granted Trump’s special-master petition and enjoined the government from using seized documents in its ongoing investigation, and the order as to which the government filed a notice of appeal the very next day — did not appoint a special master. In their view, in the September 5 order, Cannon merely announced her intention to grant a special master. It was not until September 10 that Cannon formally appointed the special master (Judge Raymond Dearie). The government, Trump claims, failed to appeal the September 10 order. Presto! The Eleventh Circuit lacks jurisdiction.
This is some dodgy history, with no small amount of chutzpah mixed in.
Cannon’s September 5 order enjoined the government, in the middle of an investigation involving mishandled and potentially missing classified information, from using in the probe the classified information seized at Mar-a-Lago. That order not only granted the special master but explained why the court supposedly had jurisdiction to appoint one, and what it was expected that the special master would do. Cannon rationalized that a special-master review of the 11,000-plus documents seized was required by fairness and equity, because the government’s unilateral privilege review was inadequate — notwithstanding that it had been pre-approved by the magistrate judge who issued the warrant. The September 5 order conveniently sidestepped the facts that Trump had delayed two weeks in seeking the special master (which is supposed to be an emergency application) and that Cannon herself then dallied an additional two weeks before granting the petition (without directing the government to halt its privilege review, which was thus completed by the time Cannon got around to ruling).
The reason the September 5 order did not formally name the special master is that Cannon instructed the parties to negotiate over who should be appointed — which they did, the government acceding to Trump’s suggestion of Judge Dearie. In the meantime, besides promptly filing a notice that it would appeal the September 5 order, the government sought reconsideration of that order, which Trump’s team opposed and Cannon ultimately declined to grant it — though she did clarify that Dearie should prioritize review of the 100 seized documents that bore classification markings.
It was very clear: The government objected to the entirety of Cannon’s order granting the special master, not to the appointment of Dearie to fill that role, which was just a formality. The contested litigation between the parties was strictly over whether there should be a special master and whether the government should be enjoined from using seized documents in its investigation pending a special-master review that would take months.
Nevertheless, the main damage to the government’s investigation — which is probing apparent felony violations of the Espionage Act, obstruction, and the unlawful retention of government records — involved (a) being compelled to submit highly classified information to a special-master review under circumstances where Trump had not established that the classified documents should be deemed either privileged or his personal property; (b) being barred from using these classified documents in the ongoing investigation of mishandling classified information; and (c) the resulting delay of its investigation under circumstances where classified documents may have fallen into the wrong hands and may still be missing. The Justice Department thus narrowly appealed the injunction on these grounds.
As the Eleventh Circuit explained in the aforementioned footnote 3, these grounds were the focus of its review. Trump claimed that the appeals court lacked jurisdiction “to review the special master’s authority,” which is arguably non-appealable at this early stage. The appellate panel countered that it did not prevent the special-master process from going forward (which it was not asked to do, and which is in fact proceeding). Rather, the panel focused on Cannon’s September 5 injunction barring the government “from reviewing and using the seized materials for investigative purposes pending the completion of the special master’s review[.]”
The panel clearly had jurisdiction to do that, despite Trump’s specious claim that appellate review is premature at this point because the injunction is “temporary” – i.e., the government’s criminal investigation is “only” to be hamstrung for however many months it takes to complete the special master review. And as the panel explained, it had to affect the special-master review to a limited extent because doing so was necessary in order to address the injunction as it related to classified information. Circuit precedent clearly permitted this: Under the doctrine of “pendent jurisdiction,” an appeals court may address an arguably non-appealable issue (here, the special master’s authority) that is “inextricably intertwined” with an appealable issue (here, the injunction barring the government from using classified documents in its investigation).
The audacious thing about Trump’s appeal to the Supreme Court is that he is claiming the Eleventh Circuit lacked jurisdiction to review Judge Cannon’s special-master order when, in reality, this whole morass owes to the fact that Cannon lacked jurisdiction to grant a special master in the first place (a point on which I dilated in last night’s above-linked column).
Plainly, the Supreme Court gambit is yet another attempt by the former president to derail the investigation, this time by scoring a chaos hat-trick: not one not two, but three courts all contradictorily acting on the same case at the same time. As I said last night, the Supreme Court will want no part of that; it will want to restore order. Ergo, expect the justices to turn Trump away for now. The former president’s team filed its attempt to end-around the appeals court with Justice Clarence Thomas because he is the justice assigned to handle emergency applications related to the Eleventh Circuit; in all probability, Justice Thomas will either to deny the application, or refer it to the full Court, which will quickly deny it.
In the interim, the Eleventh Circuit is likely to grant an expedited appeal, and the special-master review will proceed as to the non-classified seizures. Once the Eleventh Circuit rules, hopefully by late November, the parties can sensibly decide their next moves.
In all likelihood, the Circuit will rule in the Justice Department’s favor (as it already effectively has in lifting Judge Cannon’s injunction). If that happens, former president Trump can then decide whether to appeal to the Supreme Court, which, again, will be highly unlikely to take the case (presumably that at that point, the criminal investigation will still be ongoing and Trump will not have been charged). For its part, if the Circuit rules in its favor, the Justice Department can then decide whether it should ask Judge Cannon to abort the special-master review. In the alternative, the government could just live with the special-master review since (a) the review should be substantially complete by then, (b) it only affects the non-classified documents, (c) Judge Dearie seems favorably disposed to the government’s position, and (d) Judge Cannon is unlikely to intervene further on Trump’s behalf if the Circuit has again made clear that she shouldn’t have appointed a special master in the first place.