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‘The Answer Is No’: Conservative 11th Circuit Panel, Including Two Judges Trump Appointed, Puts a Stop to Special Master’s Mar-a-Lago Review

Former President Trump Holds Rally In Warren, Michigan

Former President Donald Trump speaks during a Save America rally on October 1, 2022 in Warren, Michigan. (Photo by Emily Elconin/Getty Images)

Just like any other subject of a criminal investigation, former President Donald Trump does not have a right to have a special master determine whether the files seized by the FBI are privileged, the 11th Circuit ruled Thursday.

“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,” the per curiam opinion began.

The panel said it would not create a new rule for former presidents.

“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,” the opinion said. “We choose the first option. So the case must be dismissed.”

The unanimous ruling came from about as friendly territory that Trump could have hoped for: All three of the judges were appointed by Republican presidents, including two whom he personally selected. The per curiam opinion means that they rendered their lacerating judgment in one voice, with no lead author.

All of them agreed that Trump-appointed U.S. District Judge Aileen Cannon did not have jurisdiction to hear Trump’s case, let alone issue a sweeping ruling forbidding federal authorities from using thousands of seized files in an ongoing criminal investigation pending the completion of a special master’s review. The 11th Circuit’s ruling voids the special master process in its entirely, relieving Senior U.S. District Judge Raymond Dearie of his duties.

From the 11th Circuit:

The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.

The district court improperly exercised equitable jurisdiction in this case. For that reason, we VACATE the September 5 order on appeal and REMAND with instructions for the district court to DISMISS the underlying civil action.

Another 11th Circuit panel previously reversed Cannon’s ruling temporarily barring the government from using the more than 100 documents with classified markings found at Mar-a-Lago for their criminal investigation. A warrant justifying the search said that federal authorities suspect possible violations of the Espionage Act, obstruction of justice, and concealment and removal of government records.

Trump’s swift and decisive defeat before the 11th Circuit was expected after his attorney James Trusty faced bruising questioning during oral arguments. One of the panelists, U.S. Circuit Judge Elizabeth “Britt” Cagle Grant, corrected Trusty when he referred to the court-authorized search of Mar-a-Lago as a raid.

“Do you think that ‘raid’ is the right term for execution of a warrant?” she asked, pointedly.

Chief Judge William H. Pryor Jr., the sole George W. Bush appointee on the panel, pushed back at Trusty’s characterization of the document authorizing the search as a “general warrant.”

“You didn’t establish that it was a general warrant,” he said.

When Trusty acknowledged that Trump couldn’t prove unlawful actions by the FBI during the raid, Pryor asked bluntly: “If you can’t establish that, then what are we doing here?”

The other member of the panel, U.S. Circuit Judge Andrew L. Brasher, and Grant were Trump appointees.

For the panel, Trump’s concession that no unlawful actions had been proven was crucial because federal courts only have equitable jurisdiction to hear such a challenge when there has been a showing of a “callous disregard” for constitutional rights.

“Because the vast majority of subjects of a search warrant have not experienced a ‘callous disregard’ of their constitutional rights, this factor ensures that equitable jurisdiction remains extraordinary,” the opinion note. “Otherwise, ‘a flood of disruptive civil litigation’ would surely follow. […] This restraint guards against needless judicial intrusion into the course of criminal investigations — a sphere of power committed to the executive branch.”

Every party, including Trump, the Justice Department, and Judge Cannon, agreed that there was not such a showing.

“The callous disregard standard has not been met here, and no one argues otherwise,” the ruling continues. “The district court’s entire reasoning about this factor was that it ‘agrees with the Government that, at least based on the record to date, there has not been a compelling showing of callous disregard for Plaintiff’s constitutional rights.’ None of Plaintiff’s filings here or in the district court contest this finding.”

At one part of the opinion, the panel even dinged Trump’s “alternative framing” and arguments as a “sideshow.”

Plaintiff’s alternative framing of his grievance is that he needs a special master and an injunction to protect documents that he designated as personal under the Presidential Records Act. But as we have said, the status of a document as personal or presidential does not alter the authority of the government to seize it under a warrant supported by probable cause; search warrants authorize the seizure of personal records as a matter of course. The Department of Justice has the documents because they were seized with a search warrant, not because of their status under the Presidential Records Act. So Plaintiff’s suggestion that “whether the Government is entitled to retain some or all the seized documents has not been determined by any court” is incorrect. The magistrate judge decided that issue when approving the warrant. To the extent that the categorization of these documents has legal relevance in future proceedings, the issue can be raised at that time.

All these arguments are a sideshow. The real question that guides our analysis is this—adequate remedy for what? The answer is the same as it was in Chapman: “No weight can be assigned to this factor because [Plaintiff] did not assert that any rights had been violated, i.e., that there has been a callous disregard for his constitutional rights or that a substantial interest in property is jeopardized.” 559 F.2d at 407. If there has been no constitutional violation—much less a serious one—then there is no harm to be remediated in the first place. This factor also weighs against exercising equitable jurisdiction.

Read the full ruling here.

This is a developing story.

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."