February 9, 2023

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The Legal System

Eleventh Circuit Ends the Use of a Special Master in the Mar-a-Lago Case – JONATHAN TURLEY

The United States Court of Appeals for the Eleventh Circuit rejected the use of a special master in the Mar-a-Lago case as well as broad challenges from the lawyers of former President Donald Trump. Notably, the three-judge panel included three Republican appointees, including two Trump appointed judges. While Democratic members and pundits have attacked Trump appointees as activists and ideologues, these jurists have repeatedly ruled against the former president in major cases like this one.

The panel was headed by Chief Judge William H. Pryor Jr., who was appointed by George W. Bush and reportedly considered by Trump for the Supreme Court. It also included  Judge Andrew L. Brasher, and Elizabeth “Britt” Cagle Grant, both Trump appointees.

The per curiam decision was not unexpected after an oral argument where the judges expressed great reservations over the rare appointment of a special master to review these documents by U.S. District Judge Aileen Cannon.

Cannon was motivated by a number of factors, including the broad scope of the search. It allowed the seizure of any box containing any document with any classification of any kind — and all boxes stored with that box. It also allowed the seizure of any writing from Trump’s presidency.

Judge Cannon noted that the Justice Department’s own taint team missed privileged material and rejects the government’s assurance that it still caught the errors (emphasis added below):

“Counsel from the Privilege Review Team characterized them as examples of the filter process working. The Court is not so sure. These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material. The Government’s other explanation—that these instances were the result of adopting an overinclusive view of potentially privileged material out of an abundance of caution—does not satisfy the Court either. Even accepting the Government’s untested premise, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the Investigative Team. Perhaps most concerning, the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team [see ECF No. 40]. In sum, without drawing inferences, there is a basis on this record to question how materials passed through the screening process, further underscoring the importance of procedural safeguards and an additional layer of review.“

After her decision, the judge was subjected to vicious attacks for her order by pundits who dismissed her and other Trump appointees as virtual ideological robots. MSNBC host Joy Reid hosted a frenzy of condemnations of this “corrupt” judge. Reid said that Cannon is little more than an extension of Trump like other possessions stolen by the former president.MSNBC regular (and columnist for Above the Law and The Nation) Elie Mystal declared

“She’s biased and corrupt. Like, I don’t know what to tell everybody anymore. Like, I’ve been saying this since he took office. When you allow Republicans to control the courts you get nothing. Trump judges do not believe in the rule of law, they do not believe in precedent, they do not believe in facts, they do not believe in logic—they just believe in whatever’s going to help Donald Trump, and they’ve proven it again and again and again.”

Lawyers like former top Obama official Neal Katyal, said that Judge Cannon’s decision appeared designed to “protect their guy” or at the very least, “delay justice.” Harvard Professor Laurence Tribe declared that an order to appoint a special master to review the documents is analogous to the Dred Scott decision as an abuse of judicial power.

Notably, Donald Trump has criticized his own appointees recently for adverse decisions.

Despite these attacks on the integrity of Trump appointees as a group, the panel roundly rejected the claims of Trump and noted that

“Despite the certification from Plaintiff that “[a]ny and all” documents bearing classification markings had been produced, fifteen of the thirty-three seized boxes, containers, or groups of papers contained documents with classification markings, including three such documents found in desks in Plaintiff’s office. All told, the search uncovered over one hundred documents marked confidential, secret, or top secret.”

That does not sound like judges “protecting their guy,” as Katyal claimed.

The opinion itself has been inaccurately described by some. The panel did not reject the ability of courts to use equitable powers to appoint special masters. Previously, I noted that, while such an appointment is extremely rare and this appointment might be overturned by the Eleventh Circuit, it was not (as claimed by some) outside of the authority of courts to appoint special masters to help review seized material.

The panel found that the basis for such an appointment was refuted by the actions and arguments of the Plaintiff in this case, particularly in failing to establish a “callous disregard” of constitutional rights under Richey v. Smith: “Because the vast majority of subjects of a search warrant have not experienced a ‘callous disregard’ of their constitutional rights, this factor ensures that equitable jurisdiction remains extraordinary.”

Reports have zeroed in on the rejection of claims based on Trump’s status as a former president. That was actually one of a number of claims, not the sole or even the core claim in the case. The panel, however, correctly rejected that claim:

The law is clear. 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.

Here is the opinion: Trump v. United States