In the last post, I noted that Part III would come after I read the DOJ’s response to Team Trump’s filing(s). And by 8:00 p.m. Wednesday evening, Team Trump filed their rebuttal. Both filings couldn’t be more different, not just in tone but also in content.
A brief word about the DOJ’s filing before continuing. If the DOJ’s filing was written by adults in ink, it would be snarky to suggest that Team Trump’s filing were written in crayon by children. Snarky but not insulting. It’s not insulting if it’s true.
The DOJ’s filing was comprehensive in its scope, evidentiary basis, legal basis (with a time line of events leading to the search) for the application for a search warrant and its court approval, and its detailed take down of the various privilege assertions made by Team Trump.
When I read this filing I was reminded of a scene from the movie Untouchables when Officer Malone’s apartment entered by a man with a knife. To paraphrase Malone in this instance, “isn’t it just like a unprepared lawyer to bring a knife to a legal gunfight.” Team Trump was holding the knife.
But one issue raised by DOJ was the threshold issue of standing. Simply stated, standing determines the right of a person to bring a court action, or to make specific assertions in a case in which they are parties. This is to ensure that the court’s time and resources are not wasted by people bringing actions in which they have no interest.
A three part example might clarify: Part One, suppose my neighbor is a bookie running an illegal gambling enterprise. I am one of my neighbor’s customers. My neighbor keeps track of his business on a trusty Apple laptop. The cops, under the authority of a court approved search warrant, enter my neighbor’s residence and - among other things - seizes the laptop. My name is listed as one of his clients.
Part Two, because of the stress of collecting money and making payouts, my neighbor needs a vacation. Prior to leaving, he gives me his computer for safekeeping. The police, pursuant to a valid search warrant, enters my home and seizes my neighbor’s computer.
Part Three: I enter the illicit gambling business and to my surprise I am am good at it. Business is booming and my neighbor - and competitor - gets jealous. So he drops a dime on me and the police, pursuant to a valid warrant, enter my home and seize my computer containing all my business records.
In Part One, do I have standing to contest the search of my neighbor’s residence and the seizure of his laptop? No, of course not. The premises is not mine, nor is the laptop. I have no possessory interest in any item seized next door. But just the same, I’d Better Call Saul for the near certain impending gambling charges.
In Part Two, do I have the standing to challenge the search of my home and seizure of my neighbor’s computer? Yes on the entry and search of my home (i.e., challenge the validity of the warrant allowing the search of my home) but no on the seizure of my neighbor’s laptop (i.e., I have no legal interest in the laptop, which is contraband anyway). But I’d Better Call Saul anyway because the computer search will reveal my participation in an illegal gambling enterprise.
In Part Three, yes and yes. Both the house and computer are legally mine, and based on the content of the computer, it’s contraband anyway. Good thing I have Saul on speed dial, and he tells me to forget about the admonition that “snitches get stitches” regarding my neighbor lest I be charged with witness intimidation.
In my view, the hearing on the standing issue resembles Part Two of the example. It’s Trump’s house, but the docs are not his. The threshold issue of standing either enables me or prevents me from bringing an action to court. It’s an initial hurdle a litigant has to clear in order that only legally valid issues are brought before a court. To hopefully clarify, In Lujan v. Defenders of Wildlife (90-1424) 504 U.S. 555(1992), the Supreme Court created a three-part test to determine whether a party has standing to sue:
The plaintiff must have suffered an "injury in fact," meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent
There must be a causal connection between the injury and the conduct brought before the court
It must be likely, rather than speculative, that a favorable decision by the court will redress the injury
Part 1 of the three part test formulated by the Lujan court is in my view dispositive of Thursday’s hearing. While Trump has a right to challenge the validity of the warrant authorizing the entry of his residence and golf resort (in which he clearly has a legally protected interest) he has no standing to contest the seizure of the documents, much less the appointment of a Special Master and the return of the documents. Why not? Because he has absolutely no legal interest in the documents.
Simply stated, he doesn’t own the documents. They are not and never were his documents. Pursuant to the Presidential Records Act, every document, note, and scribble written or touched by the president during his term of office, and those who advised him, are the public’s property. He has no ownership, particularized or otherwise, in these documents. Period. Full Stop.
Under Part 2 of the test, we needn’t look at any “injury” he might have suffered by the seizure of the documents. It’s hard, if not impossible, to see what, if any, injury he might have suffered by the seizure of these documents. He has the same level of “injury” as I have, which is to say none.
In Part 3 it’s impossible for a court to redress an injury that a party doesn’t legally suffer.
In my mind, it is certain the the initial point of legal conflict in Thursday’s hearing in Judge Cannon’s courtroom will be on the issue of standing. If the government prevails, everyone gets to go home early.
Team Trump, trying to slip an assault on the warrant’s validity, will surely fail. The proper time would have been contemporaneous to the search and seizure. Thursday is closing in on three weeks ofthe execution of the warrant, and if he was to challenge the warrant he would need to do so in Judge Reinhart’s court, not Judge Cannon’s court.
Team Trump’s rebuttal filed Wednesday evening is nearly as much a hot mess as the previous filings. Out of the gate they politicize the proceedings in the first sentence of para. 2 on page 1. They taint the government’s position as a political attack on “a President - and possibly a candidate against the current chief executive in 2024…”
They essentially accuse the DOJ of a near authoritarian “unjustified pursuit” of criminalizing a former President’s possession of “personal and Presidential records in a secure setting.” These statements are empirically willful misstatements of the facts. And they know it.
They indirectly attack the warrant, which is not an issue before the court, by raising the specter of the DOJ’s “unprecedented behavior in this investigation.”
They address the issue of standing, first without robustly addressing the Presidential Records Act, and when they get to the PRA, it misstates the law.
I could go on but suffice it to say that this motion is more bluster than law and more table pounding than legal argument. The conflation of privileges is confounding. The conflation of the search and seizure is cringe worthy.
So we’ll see by end of the day what happened and we’ll know why.
Stay tuned…
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