[The Trump-appointed judge, who tried to do the former president a
favor in the Mar-a-Lago affair, received a stern correction from the
Eleventh Circuit.]
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JUDGE AILEEN CANNON’S REIGN OF ERROR IS OVER  
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December 2, 2022
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_ The Trump-appointed judge, who tried to do the former president a
favor in the Mar-a-Lago affair, received a stern correction from the
Eleventh Circuit. _

Donald Trump, by Gage Skidmore (CC BY-SA 2.0)

 

Former President Donald Trump is still not above the law. That’s the
ruling from the Eleventh Circuit Court of Appeals on Thursday, where a
three-judge panel dismantled
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Trump-appointed judge’s radical intervention in the Mar-a-Lago
documents case. The panel rejected outright that Trump could seek any
remedy from the civil courts for the investigation while it was still
ongoing.

“The law is clear,” Judge William Pryor wrote for the unanimous
panel. “We cannot write a rule that allows any subject of a search
warrant to block government investigations after the execution of the
warrant. Nor can we write a rule that allows only former presidents to
do so. Either approach would be a radical reordering of our caselaw
limiting the federal courts’ involvement in criminal investigations.
And both would violate bedrock separation-of-powers limitations.”

The main thrust of the appeals court’s rebuke was not really
directed at Trump, however. It was instead aimed at Judge Aileen
Cannon, the district court judge who had initially approved the former
president’s request for a special master to review the seized
materials on privilege grounds. The Eleventh Circuit’s ruling
amounts to not just a reversal of her decisions but a pointed rebuke
of how she handled the entire case.

This saga began in August when Trump, frustrated with the federal
magistrate judge who signed off on the search warrant of his Florida
resort-home, tried his hand at getting a favorable ruling from a
different one. His case ended up before Cannon, who had been appointed
by Trump to her current job in 2020. He filed something titled a
“Motion for Judicial Oversight and Additional Relief,” which is
not a real thing.

“The motion was a civil filing and did not explain how the district
court had jurisdiction to act on all of its requests,” Pryor wrote.
“It did, however, claim to be a precursor to an eventual motion
under Federal Rule of Criminal Procedure 41(g). That rule permits a
‘person aggrieved by an unlawful search and seizure of property or
by the deprivation of property’ to ‘move for the property’s
return.’” Cannon, after requesting additional briefing from
Trump’s team, began to treat the motion as something more normal and
sidestepped questions about her jurisdiction to hear the case at all.

Even after it was procedurally normalized, Trump’s request was still
extraordinary. Subjects of criminal investigation cannot generally sue
prosecutors for investigating them in the civil courts.
Constitutionally flawed prosecutions are instead dealt with through
the criminal appeals process after charges are brought. There is a
rare exception known as equitable jurisdiction. It’s a
break-glass-in-case-of-emergency sort of thing where civil courts can
intervene in truly exceptional circumstances.

The panel was kind enough to walk Trump’s case through the
four-factor test that it uses for these sorts of claims. First, did
law enforcement show a “callous disregard” for Trump’s
constitutional rights during the search? This is a high bar for anyone
to clear, and the Eleventh Circuit concludes that Trump did not even
really try. “The district court’s entire reasoning about this
factor was that it ‘agrees with the Government that, at least based
on the record to date, there has not been a compelling showing of
callous disregard for [Trump’s] constitutional rights,’” Pryor
wrote. “None of [Trump’s] filings here or in the district court
contest this finding.”

The second factor is whether Trump has a strong individual interest in
reacquiring the seized materials—something that outweighs the
government’s need for them for investigatory purposes. Trump
originally claimed he needed his passports and “similar
materials,” without ever really clarifying what these latter
documents were. Pryor, in his ruling, sounds almost incredulous that
Cannon did not attempt to probe that vague terminology any further.

“The district court was undeterred by this lack of information,”
he wrote. “It said that ‘based on the volume and nature of the
seized material, the Court is satisfied that Plaintiff has an interest
in and need for at least a portion of it,’ though it cited only the
government’s filings and not Plaintiff’s. But that is not
enough.” Pryor noted that even Trump did not bother to embrace
Cannon’s drive-by analysis on this point. The former president
instead claimed that the material rightfully belonged to him under the
Presidential Records Act. “In most search warrants, the government
seizes property that unambiguously belongs to the subject of a
search,” Pryor archly noted in response.

The third factor involves irreparable injury. Would Trump be
irreversibly harmed if the Justice Department kept the material? Yes,
Cannon had concluded, for two reasons that Trump recycled for the
panel: First, he claimed that prosecutors could improperly reveal
“sensitive information” included in the cache of materiel; second,
Trump claimed that he might face the stigma of future prosecution.
“It is not clear whether [Trump] and the district court mean
classified information or information that is sensitive to [Trump]
personally,” Pryor pointedly observed. The panel said that the
former concern would injure the United States, not Trump personally.
As for the latter matter, a rule against the possibility of being
stigmatized by a potential prosecution would affect just about every
single criminal case tried in the republic.

Oh, speaking of the stigma of prosecution, Pryor and the rest of the
panel seemed less than amused by that supposed injury. “No doubt the
threat of prosecution can weigh heavily on the mind of anyone under
investigation,” he wrote, before adding that “that ordinary
experience cannot support extraordinary jurisdiction.” On the fourth
and final factor—whether this is Trump’s only lawful remedy—the
panel’s patience finally thins. “All these arguments are a
sideshow,” Pryor wrote. “The real question that guides our
analysis is this—adequate remedy for what?” There was no
constitutional violation here, he observed, so there is nothing for
the court to resolve.

That brought the panel to the unspoken final factor that shaped the
lower court’s reasoning, such as it was: the notion that Donald
Trump is a very special guy who deserves very special treatment
because he used to be the president of the United States. “It is
indeed extraordinary for a warrant to be executed at the home of a
former president—but not in a way that affects our legal analysis or
otherwise gives the judiciary license to interfere in an ongoing
investigation,” Pryor wrote, quoting from a founding-era Supreme
Court ruling. “To create a special exception here would defy our
Nation’s foundational principle that our law applies ‘to all,
without regard to numbers, wealth, or rank.’”

Much of the panel’s analysis is aimed at Trump’s specific
arguments before it, but there is also a palpable disdain for
Cannon’s handling of the case to this point. At every point
possible, the Eleventh Circuit highlighted the shortcomings in her
analysis of precedent, the limited scope of her inquiries on factual
matters, and the perfunctory way in which she applied the appropriate
legal tests—all of which happened to tilt things in Trump’s favor.
By their very nature, appeals courts often criticize rulings made by
lower court judges. Even by these standards and expectations, the
panel took great pains to make it unusually clear that Cannon had not
just made a few simple mistakes.

This is, technically speaking, not the end of the road for Trump on
this matter. He could theoretically ask the entire Eleventh Circuit to
review the panel’s decision in a special super-panel. Trump might
very well take a glance at the roster of judges on the court—one
George W. Bush appointee, four Democratic appointees, and six Trump
appointees—and reckon that the math will work out in his favor. But
even this cynical approach would probably be a mistaken one: All three
judges on the panel that issued the ruling were Republican appointees,
and two of them had been appointed by Trump himself.

That would leave the Supreme Court as Trump’s last best possible
hope to delay and obstruct the Mar-a-Lago investigation. As
I recently noted
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however, the justices aren’t exactly an ally of Trump when it comes
to his personal legal battles. Within the last few weeks, the justices
have turned down Trump’s requests to intervene in this very case on
a separate procedural question, and to keep his tax returns from
Congress. Both efforts went nowhere. Trump was lucky last August to
find a judge who was willing to embrace his self-serving, slapdash
theories of special presidential immunity. The rest of the country is
lucky that Cannon’s judicial colleagues don’t agree with her.

_Matt Ford is a staff writer at The New Republic. Matt Ford
[[link removed]] @fordm
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_Your donation to the Fund for The New Republic provides the
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