Former President Donald Trump was seen golfing on Sept. 13, 2022. Federal prosecutors filed a photo of documents recovered from Mar-a-Lago in early August 2022. (Photo of Trump by Win McNamee/Getty Images; photo of Mar-a-Lago documents via a federal court filing.)
The 11th Circuit’s blistering ruling shutting down former President Donald Trump’s lawsuit and special master review of files the FBI seized at Mar-a-Lago is set to officially take effect next week, but until that time, deadlines in the case remain looming.
On Friday, the Department of Justice asked the judge presiding over the moribund case to pause all proceedings until the case dies, but Trump’s attorneys opposed that plan later in the day — without indicating whether they would lodge an appeal to the Supreme Court.
“The Eleventh Circuit shortened the time to issue the mandate, thereby decreasing the already limited time available to President Trump to pursue legal options,” Trump’s lawyer Lindsey Halligan wrote. “President Trump opposes modification of the current case management order at this time.”
The federal appellate court plans to issue its mandate on Thursday, Dec. 8, meaning that — absent any stay from a higher court — Trump’s lawsuit will breathe its last breath. So will Raymond Dearie’s special master review that Trump requested to inspect tens of thousands of documents the FBI seized from Mar-a-Lago for attorney-client privilege or executive privilege.
Until that time, Trump’s legal team wants to prolong the proceedings and keep up the current schedule. They asked U.S. District Aileen Cannon, at minimum, to grant hold a telephone conference two days before the drop dead date to discuss how to proceed.
Rebuking Trump’s legal arguments as a “sideshow,” the 11th Circuit panel — comprised of two Trump appointees and one George W. Bush appointee — was equally lacerating toward Cannon’s rulings in the former president’s favor. The panel, speaking in one voice in a per curiam opinion, indirectly called Cannon’s ruling a “radical” rewriting of U.S. criminal law that would carve out a special exception for former presidents.
Former federal prosecutor Mitchell Epner, now a partner at the firm Rottenberg Lipman Rich PC, predicted that Trump’s luck before Cannon, one of his appointees, would likely run out.
“I cannot imagine Judge Cannon forcing the parties to continue with the Special Master process while awaiting mandate to issue,” Epner told Law&Crime. “I am virtually certain that once the mandate issues, Judge Cannon will immediately dismiss.”
Special Counsel Jack Smith reminded Cannon that the case meanwhile hangs in limbo.
“Pending the issuance of the Eleventh Circuit’s mandate, the parties and Special Master have deadlines and work that will be rendered moot when the mandate issues,” his filing states, noting that the government’s deadline to a response to Trump’s motion to unseal the search warrant application is due next Tuesday.
Trump’s lawyers notably did not specify what, if any, plans they have to appeal, but experts like Epner note the former president’s habit of dragging out appeals.
“I also am virtually certain the FPOTUS will seek discretionary review by the Supreme Court,” Epner said, using the abbreviation for former President of the United States. “I am highly confident it will be denied. My only real uncertainty is whether Justice Thomas (in his capacity receiving motions from the 11th Circuit) will unilaterally deny it or refer it to the full Court for consideration.”
Clarence Thomas is the circuit justice for the 11th Circuit.
Trump’s decision to seek Supreme Court review of the D.C. Circuit’s decision affirm the release of his tax records to the House got him about two weeks of delay, Epner added.