Prosecutors Ask Eleventh Circuit To Sh*tcan Judge Cannon’s Special Master Order For Being … Total Sh*t

// On Friday, prosecutors in the Mar-a-Lago documents case asked the Eleventh Circuit to find that US District Judge Aileen Cannon abused her discretion by arrogating jurisdiction for herself and appointing a special master where none was needed.

“The exercise of equitable jurisdiction over an ongoing criminal investigation is reserved for exceptional circumstances, and Plaintiff failed to meet this Court’s established standards for exercising that jurisdiction here,” they wrote.

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When Trump and his lawyers failed to cite Richey v. Smith, the relevant case, Judge Cannon argued it for them, applying its four-factor test to justify her own equitable/anomalous jurisdiction over the documents seized from the former president’s home pursuant to a warrant issued by Magistrate Judge Bruce Reinhart. And while she conceded that the FBI had not behaved with “callous disregard” for Trump’s rights, the first and most critical Richey factor, she found that the other three factors — personal interest in items seized, risk of irreparable harm, and no adequate remedy at law — militated in favor of a special master. She further restricted the government from using any of the items seized in its pending criminal investigation.

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Prosecutors immediately appealed to the Eleventh Circuit on an emergency basis only as pertaining to the hundred or so classified documents seized from Trump’s property, and the appellate panel granted the request in a scathing order that was blatantly hostile to the trial judge’s entire analysis, noting that the first Richey factor is more or less indispensable, and that should have ended the matter. But even if the government had acted improperly, none of the other three factors were satisfied either, at least re the classified documents. Last week, the Supreme Court declined Trump’s invitation to intervene.

In the meantime, the government appealed the order in its entirety and requested an expedited briefing schedule. The instant motion in support of that appeal requests that the court “reverse the district court’s injunction and end the special master’s review.”

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Prosecutors note that the Richey factors are no more satisfied here than they were for the subset of classified documents. The FBI continues to have not callously disregarded the plaintiff’s rights when it executed a judicially authorized warrant including an on-site taint team. This would be the end of the story for literally anybody else. There aren’t a lot of drug dealers filing Rule 41 motions to get the contents of their safes back before being charged, because, after all, those stacks of cash were only stored next to contraband. Or, in the event, not filing such a motion, and still asking the court to return personal property as if such a motion had been filed — because that’s exactly what happened here.

Trump is getting a special layer of review from Judge Cannon, who assumed he had personal interest in the documents “based on the volume and nature of the seized material” and treated the possibility of future criminal prosecution as an irreparable harm the court must leap in to prevent.

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“[T]he injuries described by the district court, far from constituting exceptional circumstances justifying equitable jurisdiction, were both wholly speculative and could be claimed by anyone whose property was seized in a criminal investigation,” the government notes incredulously, adding that Trump has failed to demonstrate “any likelihood that he will be irreparably harmed by adhering to the ordinary process in which any challenges to the government’s use of evidence recovered in a search are raised and resolved— through standard motions practice in criminal proceedings in the event that charges are brought.”

The government also takes issue with the trial court’s ban on using the non-classified documents seized as part of its criminal investigation, noting that the warrant specifically authorized the seizure of any items found commingled with classified documents, since those may constitute evidence of improper handling. And the trial court’s airy mention of Trump’s potential ability to magically transform government documents into personal property and/or to assert executive privilege to thwart a criminal investigation are belied by both the Presidential Records Act and all Supreme Court precedent arising out of Richard Nixon’s legal fight to keep his papers under wraps. 

“A district court’s exercise of civil equitable jurisdiction to constrain an ongoing criminal investigation prior to indictment is limited to ‘exceptional’ circumstances,” the US Attorney argues. “And the injuries described by the district court, far from constituting exceptional circumstances justifying equitable jurisdiction, were both wholly speculative and could be claimed by anyone whose property was seized in a criminal investigation.”

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At bottom, the trial judge inserted herself into the process on the theory that the government requires additional supervision when dealing with this particular criminal suspect, and there’s no legal basis for that argument.

“[T]o the extent the district court suggested that Plaintiff’s former elected office entitles him to treatment different from that afforded to any other subject of a court-authorized search, such a notion would be contrary to the public interest and the rule of law,” prosecutors conclude, adding later that, “[if] Plaintiff wishes to contest the legality of the search or to assert any claims of privilege, he may do so through ordinary motions practice in a criminal proceeding in the event that charges are filed.”

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Trump’s legal team will have to submit its response by November 10. And this time they won’t have Judge Cannon to correct their homework for them.

Government Brief [via Politico]

Topics

Aileen Cannon, Courts, Donald Trump, Government