This Week at the 11th Circuit Court of Appeals

[This is a long post. Probably the longest, and most legally detailed one, I’ve written yet. So don’t feel bad if you want to skip some of the nerdier, in-the-weeds legal bits. But because we’re likely to see an opinion from the 11th Circuit in the coming week, I wanted to give you sufficient context to understand the likely legal basis for that ruling. Please leave me any questions you have in the comments, and I’ll try to get back through them before the Court rules.]

I fully expected the 11th Circuit to rule promptly following Tuesday’s oral argument in Donald Trump v. USA. But I was wrong. Here it is, Saturday morning, and they’ve yet to enter an order.

Just to make sure everyone is up to speed since it’s been a while, here’s what this case is about:

• DOJ searched Mar-a-Lago after a federal magistrate judge signed off on a search warrant based on probable cause to believe that evidence or “fruits of crime” would be recovered in the search.

• Trump then filed, not in front of the judge who issued the warrant in the criminal matter, but in a separate civil case asking a federal judge (who he just happens to have appointed) to interfere in the ongoing criminal investigation.

• Instead of promptly dismissing the case as the law suggests she should have, Southern District of Florida Judge Aileen Cannon ordered the government to temporarily stop using items recovered in the search and appointed a special master to review them before she would decide whether to permanently enjoin DOJ from using them in its investigation. That sort of interference by a judge in a criminal investigation is unprecedented, which the judge, as a former federal prosecutor, should be well aware of.

• Special master review is sometimes used in cases where an attorney’s office is searched, and a neutral third-party reviews seized items to make sure anything that is covered by attorney-client privilege is excluded, but that’s not the situation here. And Trump waited two weeks, until DOJ was most of the way through its review, before filing anything, suggesting that this wasn’t much of an emergency.

• DOJ went to the 11th Circuit immediately, appealing the entire order and asking for an immediate stay of the part of it that applied to the 100 or so classified documents it seized. The 11th Circuit agreed with the government and permitted them to continue using those materials.

• After that ruling, DOJ filed a motion to expedite consideration of the full appeal, which asks the court to decide whether the special master process should be terminated and DOJ permitted to proceed with its investigation unhindered. That was the subject of Tuesday’s argument, and it had a lot to do with whether or not Judge Cannon had jurisdiction to hear Trump’s case in the first place.

So now you’re caught up to what was at stake in Tuesday’s argument. It always seemed unlikely to me, for reasons that had little to do with Trump himself, that the appellate court would endorse a precedent that would make it possible for virtually anyone under investigation (or at least those with sufficient means to file a lawsuit) to engage in wholesale interference with the criminal justice process. Prosecutors routinely provide federal judges with evidence sufficient to establish probable cause, obtain search warrants, and use what they discover to advance investigations. Sometimes, not always, this results in an indictment. A defendant who objects to the use of seized items can file a motion to suppress their use at trial if they can establish that they were seized in violation of Fourth Amendment rights. They can file a lawsuit seeking civil damages. But what’s unprecedented here is a judge kneecapping a criminal investigation before any determination could be made about whether a crime was committed and, if so, who should be charged.

The situation is so unprecedented that the judge had to take a highly unusual path to find jurisdiction over the case. Jurisdiction of the subject matter of a lawsuit is essential before a court can hear a case. If a court lacks jurisdiction, it can’t act. Here, Judge Cannon determined that she had what’s called equitable jurisdiction. Equity is used to “give relief in extraordinary cases, which are exceptions to general rules” — that’s how Alexander Hamilton referred to it in Federalist No. 83.

While Article III, section 2, clause 1 of the U.S. Constitution extends federal jurisdiction to “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority” (my emphasis), it has been left to the nation’s courts to decide under what circumstances it’s appropriate to invoke this very limited jurisdiction, which can be used to craft non-monetary “equitable” remedies based on principles of fairness when a litigant’s rights have been violated. In the 11th Circuit, which covers Florida, Georgia, and Alabama, and which is where appeals from the court Trump filed his case in go, a 1975 case called Richey v. Smith governs when equitable jurisdiction can be invoked to address a situation like this one, when there are, as of yet, no criminal proceedings pending against a potential defendant who, like Trump, seeks to prevent the government from using items obtained during a lawful search to further its criminal investigation. You can read the whole case here.

In Richey, the former Fifth Circuit (your legal trivia for today: the 11th Circuit used to be part of a massive Fifth Circuit that stretched from Texas to Florida until it was split off in 1981 to make two more manageable-size districts—Fifth Circuit cases from before the split, like Richey, are binding precedent in the 11th Circuit) created a four-factor test that district courts use to decide whether they should exercise their “anomalous” equitable jurisdiction before permitting someone under investigation, like Trump, to challenge the propriety of a search before they’ve been charged.

The first factor is whether the government displayed a “callous disregard” for constitutional rights in seizing the material in question. When it ruled on the classified documents motion earlier, the court focused on this as the “foremost consideration” pointing out that Circuit precedent emphasizes the “indispensability of an accurate allegation of callous disregard.” But Trump didn’t even attempt a showing of callous disregard when he filed his case, and indeed, it would have been hard to do since the government obtained a lawful search warrant and executed it pursuant to well-established procedures. The failure to prove callous disregard is something that you’d expect to be fatal to Trump’s case.

In reviewing a case like this, the appellate court’s job is to decide whether a district court “abused its discretion” when it decided to hear a case under an equity theory. Abuse of discretion is a very deferential standard of review. In the vernacular, a trial judge must have really screwed the pooch before they will get reversed for abusing their discretion. Their decision must run contrary to reason, evidence, or well-established law. So Judge Cannon’s decision to exercise equity where Trump failed to even make a showing of, let alone prove, the callous disregard factor made her decision dubious at best. That’s how the Court ruled in the earlier motion regarding just the classified documents, and analytically, there’s no reason this hearing on the full case should have a different result.

But there’s a procedural quirk in the 11th Circuit where the panel of judges who decided that early motion to stay Judge Cannon’s order — the motions panel — isn’t necessarily the same set of judges that decides the case itself — the merits panel. And the motions panel’s decision isn’t binding on the merits panel. Here (and rather unusually in my experience), the merits panel that heard Trump’s case on Tuesday included two of the three judges from the earlier panel, Judge Andrew Brasher and Judge Britt Grant, both Trump appointees, along with Chief Judge William Pryor, a Bush administration appointee. The motions panel had included Judge Robin Rosenbaum, an Obama appointee. So there were some questions about whether this panel would see the issues the same way as the motions panel.

We got clarity on that issue within minutes of the oral argument beginning. It was fast, like a ping-pong match. I rapidly scribbled notes the entire time. It was a hot bench, meaning the judges jumped straight in with questions and demonstrated they were fully conversant with the facts and the law. I’ve had arguments in this court where I didn’t get my full name out of my mouth before the first question was thrown at me. Here, Sopan Joshi, a former Scalia law clerk, now a lawyer in DOJ ‘s Solicitor General’s office, got his opening comments out before he drew the first questions from the panel. Trump’s lawyer, a former DOJ prosecutor named Jim Trusty, got waylaid mid-first-sentence.

Joshi got straight to the point, telling the panel that DOJ executed a lawful search warrant, signed by a federal magistrate judge, and the district court’s “extraordinary” interference in the criminal case was not warranted for three separate reasons (in other words, if the court buys any one of them, that’s enough to dismiss Trump’s appeal). In addition to the callous disregard factor, he argued, Trump failed to demonstrate a likelihood of success on the merits in the underlying case and an irreparable injury if the court didn’t hear his case, two of the additional Richey factors.

Judge Pryor jumped in early, with a series of questions that seemed to acknowledge that a failure to establish callous disregard meant it was error for a district court to use equitable jurisdiction. In other words, game over.

If you’re interested in the technicalities, Pryor wanted to explore whether callous disregard had to mean more than “mere” unlawful action by DOJ, but the implication was that here, DOJ’s actions were fully lawful, so the question was theoretical. Pryor asked whether Joshi was aware of any case where a court exercised equitable jurisdiction absent a showing of unlawful conduct, and Joshi responded that he’d been unable to find one, which he thought meant there was not one out there. Pryor seemed to agree.

Arguing for Trump, Trusty was forced to concede that he was not aware of a case either. In fact, Pryor interrupted his introductory sentence to cut straight to the chase and ask if he could cite a single case where a court used equity jurisdiction, pre-indictment, to return property seized during a search. Trusty responded that he couldn’t but that he started with a “broader premise.” That argument made no sense, and Pryor retorted that Judge Cannon didn’t find callous disregard, Trump didn’t argue it existed, and without that, no rationale existed to exercise equitable jurisdiction. “So why are we here?” Pryor asked.

Trusty also came out on the losing end of an exchange with Judge Grant over 11th Circuit precedent on whether the absence of callous disregard prevented an exercise of equity jurisdiction. Like Pryor, she seemed to believe that in its absence, Trump would have to lose. Trusty’s effort to argue that the cases didn’t say what they clearly said didn’t seem to sit well with her, either.

Trusty, apparently realizing after the argument that he’d been mistaken to argue that a court could act in equity where a client like his failed to establish callous disregard, tried to fix things by submitting what’s called a 28(j) letter. In it, he pointed to a case that, he wrote, showed that a court found callous disregard in the absence of unlawful action. Federal Rule of Appellate procedure 28(j) permits lawyers to bring new authority to the court after briefing in a case is complete or even after oral argument, but it is typically reserved for new court opinions issued after briefing or oral argument such that the parties could not have brought them to the court’s attention because they hadn’t been issued yet. It’s embarrassing for a lawyer to have to cite to an available case on such a critical point that they missed, reflecting a failure to thoroughly assess the issues. Unfortunately for them, even the late filing was unavailing on this point. Special counsel Jack Smith jumped straight in, filing a response the following day—on Thanksgiving—pointing out the case they cited didn’t say what they said it did and didn’t apply to a pre-indictment defendant like Trump who was having his residence searched, not a lawyer’s office. In fact, the case they cited involved the search of Rudy Giuliani, Trump’s lawyer. If it seemed clear following the oral argument that the court was very likely to rule for DOJ, it seemed even more so after the embarrassing debacle of the 28(j) letter.

During the argument, the judges did engage with the lawyers on the other Richey factors, apparently just for the sake of “completeness,” as the motions panel said in its opinion, when they too considered them after finding against Trump on callous disregard. Trusty had a tough time trying to show Trump was likely to succeed and would suffer irreparable injury if Judge Cannon’s exercise of equitable jurisdiction was disallowed and her decision reversed (or vacated; there was some technical back-and-forth between Pryor and Joshi on what the technicalities of the order dismissing her ruling should look like), because he could litigate the issues like any other defendant following indictment and receive a full measure of relief if warranted. All in all, it was not a particularly encouraging outing for Trump. And during the government’s rebuttal argument, Pryor seemed to dispense with some of the additional arguments Trusty had raised, including one that the search warrant itself was faulty because it was insufficiently specific, and the insinuation Trump was entitled to a “Franks hearing,” which looks into whether police lied to obtain a search warrant, dismissing them as “new.” Parties are required to raise issues in their opening briefs, or they’re deemed waived in this Circuit. But even if they had been raised, neither argument seemed meritorious.

One final part of the exchange during Trusty’s argument is worth noting. Judge Grant asked Trusty whether only Trump could make the argument being made here, or whether it applied to every potential litigant. Danger, Will Robinson! She was asking whether ruling for Trump would open the floodgates for anyone under criminal investigation to try to interfere with the process.

Ruling for Trump in a way that created a precedent like that  would probably be a non-starter anywhere, but especially so in a conservative, pro-law-enforcement Circuit like the Eleventh that likes to let prosecutors go about their work. You could see it coming from a mile away. Trusty didn’t.

Trusty responded that “the president” isn’t looking for any special treatment. Pryor couldn’t contain himself at this point and interrupted to ask whether there was any difference between Trump and everyone else. No, said Trusty, other defendants have the same rights. Pryor gave Trusty a second chance, spelling it out for him: “the problem” he identified was that the Court had to decide when a district court can insert itself into a criminal investigation, and Trump’s position was that he is no different than any other person under investigation. Pryor suggested that meant the Court had to be concerned about the precedent they’d create in every other case if they ruled for Trump.

Even after that explicit layout, Trusty didn’t seem to realize he’d been boxed in. This, he told Pryor, in a strictly non-responsive fashion, “is a case about political rivals.”

It seems to me that it’s all over but the shouting, or in this case, the legal writing, which I’d thought the Court might finish with ahead of Thanksgiving. In the earlier motion involving the classified documents, the Court ruled within 24 hours of DOJ filing its final brief. Even though they didn’t do it in advance of the holiday, I wouldn’t expect them to delay too long. Judge Raymond Dearie, the special master Judge Cannon appointed, is looking to close out his review of seized materials in December, but it doesn’t end there. His decisions will be subject to objections by the parties, a briefing to the judge, and an appeal, so it could be months down the road before final decisions are made and the government can proceed unhindered with its investigation. That’s something the 11th Circuit is unlikely to tolerate. As DOJ argued, Trump’s position is “fatal to the vindication of criminal law” — former presidents, like anyone else, must be able to be held accountable in a timely fashion when they break the law. Whatever Trump’s attorneys may have claimed, they’re looking for special treatment for him here. The 11th Circuit didn’t seem interested in letting him have it.

Let’s hope the tea leaves here turn into the reality. Every time a court or an institution stands for the rule of law in the face of another effort by Trump to subvert it for his own benefit, our institutions feel more secure. Baby steps add up, and this is an important one. I’ll read the opinion as soon as it’s out and let you know where we stand.

We’re in this together,

Joyce