The Mar-a-Lago documents case has been briefed and argued; all we need now is a decision from the 11th Circuit to undo the nonsense generated by Judge Cannon so that DOJ can proceed with its prosecution of Trump for pilfering government documents, including highly classified ones.
In the recent oral argument, the misleadingly named Trump lawyer, Trusty, struggled to persuade three Federalists — Pryor (Dubya), Grant (Trump), and Brasher (Trump) — that Cannon had correctly taken the case and enjoined DOJ from using the materials recovered from Mar-a-Lago to conduct a criminal investigation of Trump. It’s not as if he didn’t try, though.
Trusty wailed about the seizure of personal items (memorabilia, photos, and letters). Pryor made quick work of that by pointing out that Trump had intermingled personal items with classified and other government documents: “I don’t think [that]’s necessarily the fault of the government….” Why he qualified this with “necessarily” is unclear. Criminals (at least the clever ones) often try this sort of intermingling in hopes of a winning Fourth Amendment argument. As with every other criminal, the 11th Circuit panel should have left no doubt that intermingling is Trump’s problem, not the government’s.
What also was missing from the skeptical panel’s responses to the arguments from Trump was context, even though it was the very first thing that Trusty argued the need for. None of the three judges ever raised the question, for example, as to Trump’s motive in filing for equitable relief before having been indicted. Or how he engineered it so that Cannon, his appointee, even ended up with the case.
Nor did they question why Trump ran to Cannon when there was already a warrant-related proceeding before Magistrate Judge Reinhart who had issued the warrant that authorized the recovery of documents from Trump’s place. If Trump had wanted to object to the warrant or its execution, he should have made his case to Reinhart. Although that’s where any legitimate judge would have sent him, Cannon had other ideas.
Note that even on social media Trump never claimed the government had acted unlawfully: “My beautiful home … Florida, is currently under siege, raided, and occupied by a large group of FBI agents.” And, “There is no way to justify the unannounced RAID of Mar-a-Lago, the home of the 45th President … by a very large number of gun toting FBI Agents, and the Department of ‘Justice’. But, in the interest of TRANSPARENCY, I call for the immediate release of the completely Un-redacted Affidavit pertaining to this horrible and shocking BREAK-IN.”
When Pryor asked if there was a single case in which a federal court, absent a claim of “callous disregard” of Constitutional rights, granted injunctive relief in a pre-indictment setting, Trusty babbled about this being “a process” by which to establish that there was an unlawful seizure. Neither Pryor nor his colleagues followed up. Pryor could have asked, but didn’t, for Trusty to confirm that what Trump really wanted was the right to go fishing for a claim.
DOJ’s attorney rightly told the court that Trump has copies of the documents the FBI recovered; he’s had them since September. By now, he should know if he had a Fourth Amendment case to make. That he hasn’t made one tells us he doesn’t have one but still wants the right to keep looking while prohibiting the government’s investigation, which Cannon’s order was designed to prevent or delay. Whether that registered with the panel remains to be seen.
Brasher came close to something useful when he asked, if the FBI’s seizure was lawful — and Trump has never argued, before Cannon or the 11th Circuit, that it wasn’t — “what are we doing here?”. But, yet again, the panel didn’t pursue the line of thought. It would have led directly to the obvious, which is that Trump was abusing the judicial processes to obstruct a lawful investigation. If courts are criticized for being slow and cumbersome, this is why.
Trusty repeatedly referred to “this … extraordinary case,” but the judges failed to force him to explain what made it so. He’d be right if “extraordinary” meant a former president’s stealing, and playing keep-away with, government documents. But what he was after, and what the judges let him get away with, was to allude to, but not be required to say outright, was to plead for special treatment of a private citizen who used to be president.
Instead of cutting him off at the knees, they let him argue “[t]he greater context of this case … where a political rival has been subjected to a search warrant where thousands of personal materials have been taken … We can’t ignore that in the context of equity to consider … the impact on the community when it comes to their view of the criminal justice system. … [The FBI] took golf shirts and pictures of Celine Dion. … They had carte blanche from a magistrate.”
Apparently, Trump, ever mindful of the greater good, wants equitable relief to make sure the “community” (of Palm Beach millionaires?) views the criminal justice system favorably. Who knew? Grant did manage to ask Trusty whether objections to the breadth of a search weren’t routine — who does like to have their home searched by the FBI — but left it at that. “Why should Trump be treated differently?” was never asked.
Although there was skepticism of Trusty’s arguments, a more energetic rejection of them would have been welcome. Ultimately, and to Brasher’s point, are we really here because of memorabilia, golf shirts, and Celine Dion photos as grounds for a Fourth Amendment claim? Icing on the cake would have been: “Mr. Trusty, can you explain to us why Rule 11 sanctions aren’t appropriate in this case?”
We can hope the panel puts an end to the matter by overruling Cannon, both on the injunction and her even having jurisdiction. But if it remands (a politically safe course for right-wingers), Cannon will simply find other grounds on which to again find for Trump, at which point the cycle starts all over again. DOJ will be back at the 11th Circuit. Whatever the outcome there, the case will end up at the Supreme Court, where law and justice go to die.
