BENCHSLAP: Eleventh Circuit Rips Trial Judge’s Ruling In Trump Warrant Case


Last night, a three-judge panel from the Eleventh Circuit issued a spectacular smackdown of US District Judge Aileen Cannon’s handling of the Trump warrant case.

“Whether a court should exercise its equitable jurisdiction in this context ‘is subject to the sound discretion of the district court,’” wrote Judges Grant and Brasher, both Trump appointees, and Judge Rosenbaum, who was put on the bench by Obama. “But that discretion is not boundless.”

In a per curiam ruling, the panel laid waste to Judge Cannon’s refusal to exclude classified documents seized at Mar-a-Lago from the special master review process, as well as her ban on the FBI using them in its ongoing criminal investigation. And while the government’s motion for partial stay was narrow, it’s clear that, should the government file a fuller appeal, the logic undergirding last night’s holding would be fatal to the trial court’s finding of anomalous jurisdiction to appoint Judge Raymond Dearie as special master.

Although Trump’s lawyers failed to plead it, Cannon used the four factor test from Richey v. Smith, 515 F.2d 1239, 1243 (5th Cir. 1975) to find equitable jurisdiction over the case. Despite Donald Trump’s public tantrums on his social media sites, none of the parties have alleged in court that the FBI behaved with “callous disregard” for Donald Trump’s rights when it conducted the search pursuant to a duly executed warrant. And so the exercise of jurisdiction fails on the first, and most important prong of the Richey test.

The absence of this ‘indispensab[le]’ factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here,” the panel writes witheringly. “But for the sake of completeness, we consider the remaining factors.”

Cue the Jaws music.

Note that, while this ruling pertains only to the classified documents, that logic would be fatal to Judge Cannon’s entire exercise of jurisdiction here. And in case that hearty judicial dunking wasn’t clear, the panel points out that her reliance on Rule 41(g) of the Federal Rules of Criminal Procedure in a civil dispute where no Rule 41 motion has ever been pled is similarly ridiculous.

As to the other Richey factors, the panel had major side eye for Judge Cannon’s disregard of classification markings in an effort to pretend that perhaps those documents were personal property in which Trump could have a possessory interest.

“For our part, we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings,” they write, noting in an ominous echo of the statutes mentioned in the search warrant that there’s simply no reason for anyone to stash national defense documents in a pool locker, and that “

Nor could the appellate court make out any irreparable harm which could come to Donald Trump from the government being able to examine his own documents — or at least no harm which is legally cognizable, because, “while the threat of prosecution can weigh heavily on the mind of someone under investigation,” it’s not generally a basis for criminal suspects to claw back evidence.

As to the fourth prong, if Trump really wanted his personal property back, he could just file the damn Rule 41 motion already and take his chances with Magistrate Judge Bruce Reinhart.

The court goes on to spend four whole pages reading Judge Cannon for filth over her blatant disregard for national security, both in her blasé treatment of classified documents and her contemptuous dismissal of the government’s sworn affidavit that it cannot bifurcate the national security investigation of the mishandled documents from the criminal one.

“The Supreme Court has recognized that for reasons ‘too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to decide who may have access to it, ‘” they write. “As a result, courts should order review of such materials in only the most extraordinary circumstances. The record does not allow for the conclusion that this is such a circumstance.”

As to Trump’s suggestion that maybe he declassified the seized documents before leaving the White House, the court notes that “the record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents.” Which does not bode well for Trump’s prospects at the Eleventh Circuit should he be indicted in the state of Florida.

All in all, it was a humiliating bench slap for Judge Cannon from her appellate colleagues. But for Donald Trump… it was worse.

Eleventh Circuit Opinion

Liz Dye lives in Baltimore where she writes about law and politics.



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