Did you sit through Crim Pro like a chump? LOL. Apparently that was all for show, since the federal bench is now packed with 30- and 40-somethings who know that a motions for Bad Court Thingy are good enough. The Simpsons is real, man!
Case in point: US District Judge Aileen Cannon of the Southern District of Florida, who graduated from law school in 2008, is 41-years old, was confirmed after Trump lost the election, and who just gave Trump everything he asked for regarding the warrant for Mar-a-Lago.
Team Trump’s lawyers sat on their hands for weeks after the FBI executed the warrant on August 8 to seize evidence of obstruction, theft of government documents, and violation of the Espionage Act. But when Fox host Laura Ingraham demanded a “flurry of motions,” they finally lurched into action last Monday with a “Motion for Judicial Oversight and Additional Relief” that landed fortuitously on Judge Cannon’s docket.
Judge Cannon was apparently inclined to do them a solid, but even she couldn’t justify it based on a screeching diatribe about the Russia investigation and a biased DOJ, so she told the former president and his lawyers to come back Friday and explain what they wanted, on what jurisdictional and legal grounds, why her court, as opposed to Judge Reinhart’s, was the appropriate venue, and why they hadn’t yet managed to serve the Justice Department.
Late Friday night, they filed a marginally less crazy response, omitting the hyperventilating about the “Russia defamation matter” and more clearly delineating the relief requested.
“This Court has jurisdiction to provide the equitable relief sought by Movant pursuant to the Court’s equitable and ancillary jurisdiction, as well as Federal Rule of Civil Procedure 53,” they wrote, alluding to the rule on appointment of special masters and referring to the case of the former president’s lawyer Rudy Giuliani, in which a special master was appointed to sift through the 18 electronic devices seized when his home and office were raided in April of 2021.
Giuliani’s case represents a a perfect analog, if you disregard the fact the Trump is not a lawyer, the Justice Department immediately moved for the appointment of a special master in that situation, and Giuliani’s devices likely contained an exponentially greater amount of privileged communications data than two dozen boxes of paper documents.
While Trump’s lawyers managed to refrain from accusing Attorney General Merrick Garland of election interference this go round, they did include the same falsehoods about Trump’s “months of cooperation—as per and in compliance with the Presidential Records Act,” omitting to mention that he defied a subpoena and stored highly sensitive classified documents in a storage closet near the pool at his country club. And even hours after the redacted affidavit was released showing that Judge Reinhart found probable cause to believe that FPOTUS was hanging onto classified national defense information, Trump’s lawyers continued to describe the case as a simple dispute over records which the Biden administration was exploiting for political gain, huffing indignantly that “the Presidential Records Act is not a criminally-enforceable statute.”
They also claim (falsely) that Judge Reinhart lacks the authority to appoint a special master, and said that the pending case before him pertains only to the release of the warrant documents, and is thus “largely concluded.” This conveniently elides the fact that they could have litigated the parameters of the warrant with Judge Reinhart, who did, in fact, approve two levels of privilege filtering — one on the ground at Mar-a-Lago itself, one within the agency, to weed out privileged documents.
As to why they hadn’t yet served the DOJ, well, once they figure out how to actually do that, they’ll get right on it!
Movant served the Motion to United States Attorney Juan Antonio Gonzalez and Jay Bratt, Chief of the Counterintelligence and Export Control Section in the DOJ’s National Security Division, on the date of filing, August 22, 2022, via electronic mail. Counsel for Movant spoke with Mr. Bratt on August 25, 2022, and inquired as to the Government’s position on acceptance of service. Mr. Bratt consulted the U.S. Attorney’s Office for the Southern District of Florida (“SDFL”), and informed counsel for Movant that, consistent with DOJ practice, SDFL adheres to the requirements of Rule 4(i) of the Federal Rules of Civil Procedure for service of process in a civil matter against the United States. Accordingly, counsel for Movant sought an executed copy of a Summons, which has been issued by the Clerk. See Dkt. 26. Movant will promptly serve it, and a copy of the pleadings, on the U.S. Attorney’s Office for SDFL and will promptly file proof of service thereafter.
But apparently that dog’s breakfast was palatable enough for Judge Cannon. On Saturday, she announced her “preliminary intent to appoint a special master in this case,” ordering prosecutors to file a public response by Tuesday to the request for a special master. She also ordered them to file under seal a “more detailed Receipt for Property specifying all property seized” and a “particularized notice indicating the status of Defendant’s review of the seized property, including any filter review conducted by the privilege review team and any dissemination of materials beyond the privilege review team.”
On Wednesday, she’ll hold a hearing on the motion for special master, responding with significantly greater alacrity to the non-emergency request than Trump’s legal team did to the actual warrant, which is now three weeks old.
In response, Juan Antonio Gonzalez, United States Attorney for the Southern District of Florida, and Jay I. Bratt, Chief of the Counterintelligence and Export Control Section of the DOJ National Security Division, entered their appearance this morning in a filing which appears to indicate that the documents have already been reviewed in-house and disseminated to the relevant investigators.
“Although the government will provide the Court more detail in its forthcoming supplemental filing, the government notes that, before the Court issued its Preliminary Order, and in accordance with the judicially authorized search warrant’s provisions, the Privilege Review Team (as described in paragraphs 81-84 of the search warrant affidavit) identified a limited set of materials that potentially contain attorney-client privileged information, completed its review of those materials, and is in the process of following the procedures set forth in paragraph 84 of the search warrant affidavit to address potential privilege disputes, if any,” Gonzalez wrote, alluding to the government’s compliance with the parameters of the warrant issued on August 5 by Judge Reinhart.
And while prosecutors aren’t saying whether they’ll object to the appointment of a special master, they did include a pointed reference to the multiple layers of review already undertaken, both by the Department’s in-house Privilege Review Team to weed out attorney-client communications, and by the Office of the Director of National Intelligence to assess any fallout from Trump keeping highly classified documents in the pool shed.
So now there are two courts in the same District adjudicating the validity of the same search warrant and the documents seized under it. Oh, Florida, you hot, hot mess.
Liz Dye lives in Baltimore where she writes about law and politics.
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