Good trial lawyers learn early never to ask a question you don’t already know the answer to—and the federal Court of Appeals for the 11th Circuit clearly knew the answer to the question it posed at the start of its slam-dunk opinion on Trump-appointed Judge Aileen Cannon’s decision to appoint a special master in that Mar-a-Lago matter.
Queried appeals court judges Pryor, Grant and Brasher:
“This appeal requires us to consider whether the district court had jurisdiction to block the United States from using lawfully seized records in a criminal investigation. The answer is no.”
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With this simple set-up, the appeals court put a likely end to Donald Trump’s meritless attempt to interfere with a criminal investigation through a civil lawsuit. While Trump can still seek to appeal the case to the full 11th Circuit—and then the Supreme Court—the full 11th Circuit is unlikely to take it. This also isn’t the kind of case the Supreme Court is likely to take given its lack of conservative ideological issues.
His legal team treated his status as a former president as a reason he should not be subject to what any other citizen faces when subjected to a search warrant and criminal investigation. That is an argument even the current politicized Supreme Court conservative majority is unlikely to want to go on record as supporting.
Following months of treating Trump with great patience and deference by repeatedly asking for him to return documents to the Archivist, pursuant to polite requests as well as by subpoena, DOJ evidently became alarmed at the possible exposure of national security documents in Trump’s resort home and got a search warrant approved to search his home. The warrant yielded over 100 documents marked confidential, secret or top secret.
Trump responded with his tried and true habit of using civil litigation to delay and grind down his opposition through expense and delay–a tactic that has worked well for him in non-criminal cases.
But criminal cases are different because they are not disputes about money or property, but about crime. This is what made Judge Aileen Cannon’s decision to insert herself into the criminal investigation of whether Trump had mishandled sensitive national security documents, including possibly classified documents, so dangerously unwarranted. Her legal reasoning was baseless and threatened to derail not only the Mar-a-lago matter, but “future criminal investigations of every ilk.”
Let’s be clear: Judge Cannon tried to halt a national security investigation by enjoining DOJ from access to documents seized in the search warrant through what’s called “equitable relief’ – the powers judges use to issue injunctions.
The 11th Circuit appeals judges explicitly recognized the danger in Judge Cannon’s action, noting that Trump’s arguments for a special master “would allow any subject of a search warrant to invoke a federal court’s equitable jurisdiction”–in other words, every criminal defendant could seek to use civil litigation to interfere with criminal cases. In fact, the appeals court brushed aside the numerous arguments raised by Trump (and contested by DOJ) about the definition of personal records versus ones that fall under the Presidential Records Act, executive privilege, attorney-client privilege, and whether Trump had de-classified documents–even ignoring Trump’s claim that he can declassify by the power of thought alone–to focus on simply whether Cannon had lacked any jurisdiction to hear the case at all.
Their reversal of Judge Cannon’s decision was done in an unsigned per curiam opinion–indicating unanimous agreement in their decision. Their language was crisp but brutal in its rebuke to Cannon’s overstepping of her bounds reminding her and Trump that federal courts have jurisdiction limited by Constitution and statute and cannot expand their powers merely “by judicial decree.” Perhaps it is not surprising that a Trump-appointed judge appears to share Trump’s belief that power can be exerted merely by decree.
In Cannon’s case, she believed that power arose from merely being a judge. In Trump’s case, he believed the power arose from merely being a former President. Both were proven wrong today. When our system functions the way it should, then no one, including federal judges and former presidents, get to stand above the law.
