When I posted the first article over the weekend I never expected that I’d almost immediately have to post a Part II.
But recall towards the end of my initial post I mentioned the “major” filing (as touted by Trump) in the Florida southern district court, where the first iteration of that filing was kicked back to the attorneys with instruction write something ”legal?” And recall that Team Trump managed to submit the supplemental pleading which was slightly more coherent, and managed to get the document filed two hours prior to the court’s bewitching deadline of Friday midnight?
And recall that I indicated that there might be more “bad law” arising from the cornucopia of legal perils confronting Trump, and because of him the courts, might face? When I wrote that, I anticipated maybe a week, perhaps more, before we got back to fever dream that is Trump litigation.
As it turns out, I didn’t need an egg timer to calculate how much time would elapse before we entered the next phase of compounded stupid law. Unlike David Letterman’s “stupid pet tricks” this isn’t funny.
There are three filings and one minute order (the court’s answer to Team Trump’s second, supplemental bite at the special master apple) that comprise this saga.
Let’s start with the first filing, Motion For Judicial Oversight and Additional Relief. This motion was filed on August 22, 2022, two weeks after the search of Trump’s residence/golf resort. To set the timeline, the search was conducted on August 8; due to public commotion largely stirred up Trump, on August 11 the DOJ moved the district court to release the warrant and inventory, but not the underlying affidavit; on August 12 the two documents were released to the public; shortly thereafter the media along with a right-wing legal organization moved the court to release the affidavit, the DOJ predictably opposed this motion, but the court ordered submission of proposed redactions that would protect sources and methods of any on-going investigation; on August 25 the court agreed with the proposed redactions and ordered the redacted affidavit be released to the public; and on August 26 the redacted affidavit was made public.
There was one missing party to the court actions related to the search warrant authorizing the search of the Trump property: Donald Trump. Aside from the usual bile and vomit on his website, he and his “lawyers” were missing in action. Legally, they were silent, standing idly on the legal sidelines.
Trump’s silence ended on August 22. The first thing to note is that instead of filing this Motion in the case already before Judge Reinhart, the attorneys filed this in a separate action in Judge Cannon’s court. A word about Judge Cannon: she was one of the last group of Trump nominated judges to be confirmed in December 2020. Imagine how stunned Trump and Judge Cannon were to have his Motion heard in the court of one of Trump’s last nominees! Only a cynic would think that this turn of events was serendipitous.
Why didn’t Trump’s attorneys file their Motion in Judge Reinhart’s court? From the Supplemental Filings filed on August 26, it was basically because Judge Reinhart was a big meanie. So they took the shot and got lucky.
As I wrote in the first post, the August 22 Motion was a hot mess. After reading it twice (masochist alert!) it seems to have been written with the adage “if you can’t befuddle them with brilliance baffle them with bullshit” in mind. And they were fresh out of brilliance.
There are so many low lights to this Motion so I’ll only touch briefly on a few. On Page 1 and extending throughout the 21 pages of text was the statement, “Politics cannot be allowed to impact the administration of Justice.” Then they proceeded to write about politics on pages1, 2, 10, 13, 14, and Footnotes 1 and 4.
The Motion paints Trump as the innocent victim of Jack Booted government thugs. It was a Raid! The FBI wouldn’t permit Trump’s attorneys entrance to the building so they could observe the conduct and scope of the search. The FBI asked that the closed circuit video cameras be turned off, which Trump righteously refused to do (in part because they were watching the search on CCTV).
The Motion launches into Trump being a model of cooperation with the Archivist relative to the return of documents that he took with him when he left the White House. All the Archivist had to do was just ask! In January 2022, after one year in his possession, he returned cartons of documents. In May he returned some docs ”discovered” not to have been returned previously, and in June he showed the government officials the (now) famed storage room. When it was noted that the lock on the door was insufficient to secure the contents, Trump had his crack maintenance staff to put another lock on the door! Trump was nothing if not cooperative!
Then there were the claims of executive and attorney client privilege. The motion’s authors dwell on these privileges to assert that Trump was somehow able to magically assert executive privilege over any documents in his possession. They cite several cases specifically for the proposition that there is a presumption of executive privilege regarding documents or materials under under the president’s control.
There are two minor problems with this line of argument: 1) that while his cited cases do mention the presumption, they all state that executive privilege applies only in the exercise of a president’s official duties and not to matters outside his duties; and 2) at noon on January 20, 2021 Trump was no longer president and thus lost any claim to privilege.
There was a pretty sharp attack on the search warrant itself for being over broad. At one point the Motion raises a “general warrant” analogy with the warrant served on Trump. Ok, it’s an argument, a weak one but an argument nonetheless. The Redcoats were not coming to search Mar A Lago. But the question remains, why wait two weeks to argue the point in front of a judge having nothing to do with the case rather than the controlling judge?
And on it goes until the dawn breaks and the light shines through, when on page 18 Trump finally asks that a Special Master be appointed to review the seized document, and that a particularized inventory of the seized items be given to Trump.
The judge, perhaps weeping as she slogged on through the Motion, asked for answers to her questions which can be summed up as follows: what do you want, why do you think I can give it to you, and why didn’t you file the motion in the existing case?
Thus the supplemental Motion submitted on Friday, August 26, at around 10 p.m.
There’s not much to say about the Supplemental. However, credit where credit is due, it’s better that the initial Motion if only because it’s shorter than the initial Motion. Gone are the political screeds that were so central in the Initial Motion. Not all, but most.
Actually the Supplemental resembled an actual legal filing! It did answer the Judge’s questions regarding why Team Trump filed these Motions outside of Judge Reinhart’s court (where all previous issues in this matter were joined) and basically, with more clarity, Trump’s request for the appointment of a Special Master and for a particularized inventory of the items seized.
Team Trump continued to bang the gong as to Trump’s privilege claims, citing cases in similar matters in which issues of Special Masters were resolved. After a quick review of those cites revealed that all but one involved instances where attorney’s offices were searched and documents seized.
The one tiny exception to the majority of cited cases involved a local south Florida business, owner of an office building, that had not just its records seized but also a tenant Attorney had his record seized. Evidently the attorney provided legal services to the business in exchange for some relief on the rent. Thus the need for a Special Master in this case.
One of the more interesting citations was to a 2021 case involving Rudy Giuliani and Victoria Toensing. Rudy was being investigated for violating the Foreign Agent Registration Act, and evidently - at least tangentially - it involved Teonsing. After the feds seized Giulian’s computer and Toensing’s phone, the government moved for the appointment of a Special Master. Giuliani and Teonsing resisted and eventually lost.
Team Trump seems to place a lot of confidence in the Giuliani citation. Lawyers, especially when they have a weak case, try to find citations that while rarely exactly on point with their case, try to analogize to other cases. It’s not always perfect, but if it stands for the proposition the lawyer is advancing in service to her client, then you go for it.
But when the lawyer has to turn a citation inside out and stand it on its head in order to analogize to the case at bar, then that attorney has a problem.
But in these instance where a lawyer has a weak case, and speaking on my own behalf it happens, every lawyer is wise to remember the admonition, “When the facts aren’t on your side, argue the law; when the law isn’t on your side, argue the facts; and when neither law nor facts are on your side, pound the table and scream JUSTICE!”
To sum up, it appears that Team Trump is doing a lot of table pounding.
But now to the worst part of this thread, the Judge’s minute order issued around noon on Saturday, advanced that the bad case as detailed above, may - and at this point I stress “may” - be another step of making “bad” law.
Judge Ailene Cannon was nominated by Trump to the southern Florida Federal District Court prior to Trump’s 2020 election loss, and confirmed by the senate in late December 2020. Based on her resume, I’m certain that the ABA rated her at least “qualified.” In the senate’s confirmation process under then Senate Majority Leader McConnell, that and three bucks will get you a Starbucks coffee.
Judge Cannon would never have been considered for a federal judgeship if she weren’t also stamped “approved” by the Federalist Society, or FedSoc for short. FedSoc is an organization of right wing legal activists masquerading as a legal think tank. FedSoc recommends people to the bench not because the are “qualified” by temperament, experience, and judgment to be jurists. But rather, because specific nominees adhere to the advancement of a specific judicial philosophy.
In general, FedSoc seeks those who support the dismantling the past 70(ish) years of legal precedent, the precedent that safeguarded and advanced the rights of all of us. By way of example with which we are all familiar, Alito, Gorsuch, Kavanaugh, Coney-Barrett are the more recent prominent FedSoc nominees.
So Judge Carter, in her Saturday minute order, set dates by which pleadings were to be filed, along with setting a hearing down on September 1. But that wasn’t the headline. The headline was, and still is, her pronouncement that even before the feds were served Team Trump’s new pleadings and obviously before the feds submitted their answers to Team Trump, Carter stated that she was “inclined” to grant Team Trump’s Motion!
Let me try a loose analogy. In a baseball game, on a warm and dry summer’s evening, the visiting team is one run ahead of the home team. After the third inning, the Umpire unilaterally declares that the game is over and the visiting team wins! There still remains six more innings when the game could be conclusively decided based on the evidence - which team had the most runs at the end of the full nine innings.
If it is more on point, what if the judge called the game in favor of the visiting team in the first inning before the home team ever had a chance to bat?
By disclosing her “inclinations,” Judge Cannon, due to the “special circumstances” in this matter, revealed a bias in this case and should be recused from this case. Of course that’s unlikely to happen so once more, an opportunity to make bad law.
NOTE: Last night the DOJ, just making the Judge’s filing deadline, filed it’s reply brief. Team Trump has until end of day today, August 31, to file a rebuttal brief. I have only skimmed the DOJ’s brief, insufficient to form an opinion.
So yes my friends, there will be a Part III!
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