Published by The Lawfare Institute
in Cooperation With
It is 2:03 p.m. at the Elbert P. Tuttle courthouse in Atlanta, Georgia, and it’s time for a rematch between Donald Trump and Department of Justice prosecutors over the former president’s request—granted by a lower court judge—for a special master to review documents seized by the FBI at Mar-a-Lago.
Just half a mile down the road, Sen. Lindsey Graham (R-S.C.) testified this morning before the Fulton County special purpose grand jury investigating election interference in Georgia. But here in federal court, we’re talking classified documents and the search at Mar-a-Lago.
Different block, different criminal investigation involving Trump.
When the parties faced off on the matter in the lower court, the case was heard by District Judge Aileen Cannon, whom Trump only recently had appointed to the bench, in a federal courthouse just a few miles from the white-sand shores of Trump’s Florida country club. At the hearing, court marshals policed a de facto media blackout. Reporters were unceremoniously expelled. And Trump’s attorneys compared the former president’s alleged retention of classified documents to an “overdue library book scenario.” Cannon, for her part, seemed to agree.
In the end, Trump emerged as the first-round victor: Cannon appointed Senior Judge Raymond Dearie as special master and prohibited the Justice Department from using material seized by the FBI in its criminal investigation of Trump.
But much has changed in a few short months.
For one thing, a unanimous panel of the U.S. Court of Appeals for the Eleventh Circuit granted the Justice Department’s request to block the portion of Cannon’s order that prohibited its use of approximately 100 classified documents for investigative purposes. And the Supreme Court refused to intervene.
Then, following Trump’s Nov. 15 announcement that he will seek the presidency again, Attorney General Merrick Garland announced his decision to appoint a special counsel, Jack Smith, to take over the Justice Department’s investigations of Trump.
So now, as oral argument begins in the Justice Department’s appeal of what’s left of Cannon’s special master order, the sense around court is that this time, Trump will lose.
One reason why that outcome feels inevitable has something to do with the trio of judges who sweep into courtroom 339 when the bailiff shouts, “All rise!” just after 2 p.m.
Chief Judge William Pryor, wearing his characteristic horn-rimmed glasses, claims the center position behind the bench. Pryor is a stalwart conservative—you might recognize his name from headlines last week, when he mocked reporters and critics of the Federalist Society at the organization’s annual convention in Washington, D.C.
To his right sits Andrew Brasher, a Trump appointee who served on the Trump presidential transition team back in 2016. Rounding out the panel is Britt Grant, another Trump appointee, whose professional history includes a clerkship with Brett Kavanaugh and a stint in the Bush administration.
All of which might, under other circumstances, lead one to conclude that the former president should be very optimistic about the panel hearing this appeal. But this is actually a bad panel for the former president. The reason is that both Judges Grant and Brasher were on the panel that decided against Trump in September. In that decision, the Eleventh Circuit granted the Justice Department’s request to block Judge Cannon’s order to the extent it prohibited the use of seized materials bearing classification markings for investigative purposes.
The logic of that panel decision requires the dismissal of the entire case every bit as much as it required the partial stay the panel then granted. And everyone in the courtroom today knows it. So as the judges settle into their blue-leather chairs behind the bench, there’s an air of ineluctability to the day’s proceedings.
Chief Judge Pryor kicks things off by inviting the Justice Department to argue the merits of its appeal. At this, Sopan Joshi, an assistant solicitor general, hurries to the lectern. His colleagues–Jay Bratt, Julie Edelstein, Sophia Brill, and Juan Antonio Gonzalez—look on from their seats at a table on the left side of the courtroom.
Calling the district court’s decision an “extraordinary judicial intrusion,” Joshi announces that Cannon’s order to enjoin the Justice Department from reviewing materials seized at Mar-a-Lago should be reversed for three reasons. First, he argues, Cannon should not have exercised the court’s “equitable” or “anomalous” jurisdiction to entertain Trump’s request in the first place. The controlling case, Richey v. Smith, articulated a four-factor test for exercising equitable jurisdiction in challenges to searches pre-indictment. As the panel already held in the earlier case, Trump met none of them.
Second, he contends, Trump failed to prove one of the required elements a plaintiff must show to receive an injunction: likelihood of success on the merits.
Finally, Joshi urges, Trump has not and cannot demonstrate another necessary element for injunctive relief: that he will suffer “irreparable injury” in absence of the injunction.
As Joshi turns to expound on the jurisdictional argument, Pryor interjects: “Is there any precedent for exercising equitable jurisdiction where there is no showing that the seizure was unlawful?”
Joshi, answering in the negative, asserts that the Justice Department has not been able to identify such a case. He stresses that the exercise of anomalous jurisdiction is supposed to be “rare” and “extraordinary.” That is why, he says, Eleventh Circuit precedent has cabined its exercise to circumstances in which the government’s seizure of property displays “callous disregard” for the plaintiff’s constitutional rights.
At this, Brasher pipes up to ask whether a plaintiff must always show callous disregard before a court can exercise its equitable jurisdiction. Joshi replies that the court’s precedent has suggested as much in United States v. Chapman, in which the court noted that “callous disregard” is an “indispensable” factor in the Richey analysis. Still, he continues, the panel doesn’t need to reach that question here, because Trump has failed to prove any of the factors described by the court in Richey.
Now Grant chimes in to ask about another factor the court has considered when weighing the exercise of equitable jurisdiction: whether the plaintiff has an adequate remedy at law to redress his grievance. She wants Joshi to explain the remedies available to Trump beyond the injunction. In turn, Joshi says that Trump, if indicted, could later seek a motion to suppress evidence if he is concerned about the lawfulness of the search or seizures at Mar-a-Lago.
Next comes an exchange between Pryor and Joshi about what the Eleventh Circuit should do, procedurally, if it sides with the Justice Department. While the Justice Department asked the court to reverse and remand to the district court with instructions to dismiss the case, Pryor thinks the appropriate procedural step would be to vacate the injunction. Joshi, who I suspect realizes all this talk about “reversing” and “vacating” the order bodes very well for him, ultimately tells Pryor that he’s not going to fight him too hard on the procedural minutiae.
Thanking the court, Joshi treads away from the lectern as Trump’s counsel, James Trusty, rises from the table where he has been sitting alongside Lindsey Halligan and Evan Corcoran. Chris Kise, the former Florida solicitor general whom Trump reportedly shelled out $3 million to hire, remains conspicuously absent.
When he reaches the lectern, Trusty starts by urging the court to look at the broader “context” of the case. That context, he stresses, is necessary because the government’s briefs fail to address the “thoughtfulness” of Cannon’s order below.
Before Trusty can explain exactly how Cannon’s order could be described as “thoughtful” or whether “thoughtful” is synonymous with “correct,” however, Pryor interjects: “Can you point to a single decision where a court exercised this kind of jurisdiction pre-indictment, without showing that the seizure was unlawful?” It’s the same question he asked Joshi only minutes earlier, but Pryor practically hisses as he points it at Trusty.
Trusty admits that there is no case law directly on point but presses the court to consider that there has also never been an authorized “raid” on a former president’s home.
At Trusty’s mention of a “raid,” Grant pounces. “Do you think ‘raid’ is the proper term for execution of a warrant?” she asks, tilting her head to the side as she peers down from the bench. Trusty, backpedaling, apologizes for using a “loaded” term to describe the FBI search at Mar-a-Lago. It’s a conservative panel, but the former president’s lawyer is not on Fox News.
It’s at this point in the hearing that Pryor asks what is really the key question: “So what are we even doing here?” He observes that an unlawful seizure is the basis for the exercise of equitable jurisdiction. “But you haven’t established that,” he tells Trusty. In reply, Trusty insists that Trump’s legal team is “in the process” of establishing the unlawfulness of the seizure.
Grant wonders aloud if Cannon could exercise equitable jurisdiction absent a showing of “callous disregard.” Maintaining that the Richey factors, including “callous disregard,” are non-exhaustive, Trusty argues that it was permissible for her to consider other factors, like “faith in the criminal justice system.”
Next, Grant wants to know what distinguishes this case from that of every other criminal defendant who wants to challenge a warrant pre-indictment, aside from the fact that it involves a former president. After assuring the court that the former president is “not seeking special treatment,” Trusty claims that he is merely asking the court to recognize the “context” of the situation.
But Pryor is having none of this “context” talk. “I don’t know if that’s responsive,” he chides. “The question is, set aside that the subject of the warrant is the [former] president, what’s to distinguish this?”
Trusty, apparently unable to point to any other distinguishing facts, admits that other subjects of criminal investigations have the same Fourth Amendment rights. But, he emphasizes, Cannon simply gave Trump an “opportunity to explore” whether those rights were infringed.
The problem, Pryor explains, is that the court has to be concerned about precedent that would allow any “target” of a federal criminal investigation to ask for this kind of injunction, which interferes with an ongoing executive branch investigation. And, he queries in response to Trusty’s concerns about the scope of the warrant that authorized the Mar-a-Lago raid, how is it the fault of the government if someone intermingles classified documents with other property?
Trusty, apparently indignant at Pryor’s latter question, claims that the FBI took “golf shirts” and “pictures of Celine Dione” from Mar-a-Lago, because the agents had “carte blanche” from the magistrate. Then, continuing on this line of argument, Trusty accuses the government of making “overblown” arguments about how the injunction has affected the status of its criminal investigation. It’s not realistic, he complains, to think that the government’s investigation has been hobbled by losing access to the golf shirts and Celine Dione photos.
Finally, as Trusty’s time before the panel wanes, Brasher asks about the status of the special master review. He wants to know when this appeal would be mooted by the conclusion of Dearie’s review. In response, Trusty explains that the number of disputed documents has been narrowed to around 930 materials, and the next status conference will be held in Brooklyn on Dec. 1. He estimates that the special master’s review will be complete by late December.
Trusty is done, and Joshi jumps back up to offer his rebuttal. Briefly, he disagrees with Trusty’s estimation that the special master’s review will be complete in late December. He notes that decisions on the remaining disputed documents would likely be subject to appeal, which could lock the parties in litigation for several more months.
With that, Pryor perfunctorily wraps up oral argument: “Thank you, court is adjourned.” Rising from the bench, Pryor opens the large wooden door behind him, propping it ajar for Brasher and Grant as the trio retreat to their chambers.
Look for a quick reversal or vacature of the district court’s order. The government will be fine with either.