Conservative Condition Trump
The Eleventh Circuit Court of Appeals
reversed↱ the decision of Judge Aileen Cannon leading to the appointment of a Special Master to review documents seized under warrant at Mar-a-Lago in August. Early reviews suggest a brutal takedown, nearly definitive rejection.
But there is a particular comparison we might observe, about the conservative condition:
• Look at the judges on this panel. Two Trump appointments and one from Bush Jr. And that one, Chief Judge William Pryor: I actually despise his appointment and consider his Senate confirmation a dereliction of duty. The man is a bigot who let his prejudice guide his actions as a state attorney general. Nonetheless, he is a judge, a federal judge, and a federal chief judge, at that; there is only so far he will go in service of politics. The difference between conservative approaches to law, process, and justice ought not be overlooked when assessing the contemporary conservative condition.
The Opinion of the Court opens:
This appeal requires us to consider whether the district court had jurisdiction to block the United States from using lawfully seized records in a criminal investigation. The answer is no.
That's pretty direct, albeit unspectacular compared to a
Tallahassee federal court order↗ against Florida in a First Amendment dispute, nor exasperated as a
Georgia judge↗ ruling against an anti-abortion law. Still, in the politics of justice, there is only so much a court can be expected to take.
The order then briefly outlines Trump's civil action seeking injunction, and then observes, "These disputes ignore one fundamental question—whether the district court had the power to hear the case." A court's power is "authorized by Constitution and statute", and "is not to be expanded by judicial decree". "This case", the court asserts, "was such an expansion." Trump's case fails all four factors of what is called the Richey test.
Again, the court is straightforward:
In considering these arguments, we are faced with a choice: apply our usual test; drastically expand the availability of equitable jurisdiction for every subject of a search warrant; or carve out an unprecedented exception in our law for former presidents. We choose the first option. So the case must be dismissed.
A note aside goes here, about carveouts, but we can come back to those, whenever. It's interesting simply because SCOTUS Chief Justice Roberts' first term is distinguished by two powerful carveout decisions (
Safford and
Ricci) in which the majority just didn't feel like enforcing the law. As a comparative question, a carveout simply exceeds what Eleventh Circuit Chief Judge Pryor is willing to countenance; it's not insignificant.
The rest of the twenty-one page decision recounts the facts of the case and compares them against the standards; even without spectacular language, it's a rough bludgeoning.
Marcy Wheeler↱ suggests "the facts of the case were copied from an earlier opinion--so a lot of this was already written". The Richey test is hard to explain outside its moment, but can lead to a jurisdictional allowance for civil action. The short answer, of course, is that nothing about Trump's complaint meets the standard. The
callous disregard standard, for instance, guards against "a flood of disruptive civil litigation" against investigations. "The callous disregard standard has not been met here," the Court explains, "and no one argues otherwise." Not even Trump's filings claimed callous disregard. The Court mounts its high horse:
Instead [Plaintiff] says callous disregard of his constitutional rights is not indispensable to Richey's test. That is an incorrect reading of our precedent, as well as inconsistent with the longstanding principles outlined above .... And the fact that Richey considers three other factors in its test does not suggest otherwise. To the contrary, these factors underscore how rare this exercise of jurisdiction should be—even a callous disregard of constitutional rights is not enough, on its own, to allow for the type of relief that Plaintiff seeks. As we did in Chapman, we will consider the remaining factors for the sake of completeness.
It is unspectacular language, but also a quiet thrashing. Note the sentence about three other factors not suggesting otherwise; that and the following sentence, "To the contrary …", are the a quiet scolding of Trump's attorneys. The footnote on the type of relief considers the claim that "the special master process is necessary to determine whether a constitutional violation happened". The answer is deadpan: "This justification finds no support in our precedent and would result in a dramatic and unwarranted expansion of equitable jurisdiction."
The second factor of the test involves a the plaintiff's "individual interest in and need for the material whose return he seeks". Here, the court must take a moment to point out—
Plaintiff’s jurisdictional brief mischaracterized this standard, referring to “the parties' need for the seized material” (emphasis added). He is wrong to suggest that jurisdiction somehow depends on the balance of interests between the parties—the relevant inquiry is if he needs the documents.
—before explaining—
Plaintiff has made no such showing. His jurisdictional brief in the district court asserted that the government had improperly seized his passports and that its continued custody of "similar materials" was "both unnecessary and likely to cause significant harm." But the passports had already been returned before he filed his first motion, and his jurisdictional brief did not explain what "similar materials" were at issue or why he needed them.
The district court was undeterred by this lack of information ....
And, yes, that last is an attention-grabbing line. It's an extraordinary paragraph:
The district court was undeterred by this lack of information. 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. Courts that have authorized equitable jurisdiction have emphasized the importance of identifying "specific" documents and explaining the harm from their "seizure and retention" .... Neither the district court nor plaintiff has offered such specifics.
It is in trying to account for the district court that the Appeals Court opinion heats up and starts to glow. A simple sentence, "Indeed, Plaintiff does not press the district court's theory on appeal," takes on a whole new tone insofar as it criticizes not simply Trump and his attorneys, but Judge Cannon and the district court. "Instead," the Appeals Court continues, "he argues that the Presidential Records Act gives him a possessory interest in the seized documents. This argument is unresponsive."
It's like a multi-hit in a video game, and watching the multiplier count: "Even if Plaintiff's statutory interpretation were correct (a proposition that we neither consider nor endorse), personal interest in or ownership of a seized document is not synonymous with the need for its return." The footnote recalls oral arguments, golf shirts, pictures of Celine Dion, and also the government's concession that Trump "may have a property interest in his personal effects", and it really is a great setup. This is a court opinion, though, so the punch line is just that much heavier: "While Plaintiff may have an interest in these items and others like them, we do not see the need for their immediate return after seizure under a presumptively lawful search warrant."
(A note aside: There was some chatter about when we would get this decision, as if it was somehow late, and in that context part of the delay would be the complicated task of following Trump's argument well enough to figure out how to address it.)
The Appeals Court observes that Trump, having failed to establish his own need, tries to turn the standard back toward the Department of Justice, "arguing that the government does not need the non-classified documents for its investigation". The Court is straightforward: "This is not self-evident, but it would be irrelevant in any event. Plaintiff's task is to show why
he needed the documents, not why the government did not."
Predictable, Trump "has failed to meet his burden under this factor".
The third factor is irreparable harm, "whether the plaintiff would be irreparably injured by denial of the return of the property". And if Trump failed to meet his burden, "again, the district court stepped in with its own reasoning".
The Appeals Court's patience is clearly thin at this point, but in addition to not being overly spectacular, there is also a tone of simplicity, as if talking to a child or, as such, barely competent adult.
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