The 11th Circuit just ruled that Mark Meadows cannot remove his prosecution in the Georgia case to Federal court. The primary basis for the ruling is a technicality: That removal only applies to current federal officials, not former ones.
But the court, in an opinion by Chief Judge William Pryor, also explained that they wouldn’t have approved the removal in any case because Meadows (and by extension, Trump) had no authority over state elections and electioneering of Meadows (and by extension, Trump) was not in their official duties.
This passage, for example, adopts the logic of Amit Mehta’s opinion in Thompson, which was in turn adopted in Sri Srinivasan’s opinion in Blassingame, but does so to the criminal context.
Electioneering on behalf of a political campaign is incontrovertibly political activity prohibited by the Hatch Act. Campaigning for a specific candidate is not official conduct because the office of the President is disinterested in who holds it. See Thomspson, 590 F. Suppl. 3d at 82. Indeed, the political branches themselves recognize that electioneering is not an official federal function.
Elsewhere, Pryor’s opinion solidly debunks Meadows argument — adopted by Trump’s in his own filings — that the Take Care Clause gave him basis to intervene.
Meadows argues that the Take Care Clause, U.S. CONST. art. II, §3, empowers the President with broad authority to “ensure that federal voting laws are enforced.” But he concedes that the President has no “direct control” over the indidviduals — members of Congress and state officials — who conduct federal elections. And tellingly, he cites no legal authority for the proposition that the President’s power extends to “assess[ing] the conduct of state officials.” We are aware of no authority suggesting the Take Care Clause empowers federal executive interference with state election procedures based solely on the federal executive’s own initiative, and not in relation to another branch’s constitutionally-authorized act.
These are precisely the issues that the DC Circuit or, if it accepts Jack Smith’s appeal, SCOTUS, will be reviewing in weeks ahead. And by the time whoever reviews it does so, a very conservative judge will have backed the same logic coming out of DC.
https://www.emptywheel.net/wp-content/uploads/2023/08/Mark-Meadows-Mug-Shut.jpeg12591284emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-12-18 16:13:282023-12-18 16:20:3511th Circuit Adopts DC Logic that Mark Meadows and Trump’s Campaigning Is Not an Official Act
The 11th Circuit has, as expected, vacated Aileen Cannon’s order enjoining the government from investigating Donald Trump, remanding it with an order to dismiss the suit. (Though they gave Trump seven days to appeal before the order goes into effect.)
The opinion’s key point is that, were they to rule for Trump, it would create an impossible precedent, either halting much pre-indictment access to seized material, or creating an exception only 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. We choose the first option. So the case must be dismissed.
[snip]
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.
Much of the opinion is an Richey analysis–the analysis Cannon worked so hard to manufacture. It’s not all that interesting. The key point is that, as Jay Bratt told Judge Cannon on August 30, the precedent in the circuit is clear.
But in conducting a Richey analysis, which it ultimately called a “sideshow,” the opinion took repeated swipes at the efforts Cannon went to make shit up to benefit Trump.
The district court was undeterred by this lack of information. It said that “based on the volume and nature of the seized material, the Court is satisfied that Plaintiff has an interest in and need for at least a portion of it,” though it cited only the government’s filings and not Plaintiff’s. But that is not enough. Courts that have authorized equitable jurisdiction have emphasized the importance of identifying “specific” documents and explaining the harm from their “seizure and retention.” See, e.g., Harbor Healthcare Sys., L.P. v. United States, 5 F.4th 593, 600 (5th Cir. 2021) (Harbor did “far more than assert vague allegations” by pointing to “thousands” of privileged documents that the government retained for four years). Neither the district court nor Plaintiff has offered such specifics.
The opinion was even more scathing, though, in dismissing the notion that leaking classified information would harm Trump.
Plaintiff has adopted two of the district court’s arguments, dedicating a single page of his brief to discussing the first and third theories of harm. On the first argument, Plaintiff echoes the district court and asserts that he faces an “unquantifiable potential harm by way of improper disclosure of sensitive information to the public.” It is not clear whether Plaintiff and the district court mean classified information or information that is sensitive to Plaintiff personally. If the former, permitting the United States to review classified documents does not suggest that they will be released. Any official who makes an improper disclosure of classified material risks her own criminal liability. See, e.g., 18 U.S.C. § 798. What’s more, any leak of classified material would be properly characterized as a harm to the United States and its citizens—not as a personal injury to Plaintiff.
The only thing specific to Trump’s status as an ex-President, besides the opinion’s repeated reminder that he is not special, is the way with which the opinion twice dismissed Trump’s claim that if he had designated these documents his personal property under the Presidential Records Act, it would allow him to keep it. That’s nonsense, of course, because warrants authorize the seizure of personal property as a general rule.
Indeed, Plaintiff does not press the district court’s theory on appeal. Instead, he argues that the Presidential Records Act gives him a possessory interest in the seized documents. This argument is unresponsive. Even if Plaintiff’s statutory interpretation were correct (a proposition that we neither consider nor endorse), personal interest in or ownership of a seized document is not synonymous with the need for its return.3 In most search warrants, the government seizes property that unambiguously belongs to the subject of a search. That cannot be enough to support equitable jurisdiction.
[snip]
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.
3 During discussion of this factor at oral argument, Plaintiff’s counsel noted that the seized items included “golf shirts” and “pictures of Celine Dion.” The government concedes that Plaintiff “may have a property interest in his personal effects.” While Plaintiff may have an interest in these items and others like them, we do not see the need for their immediate return after seizure under a presumptively lawful search warrant.
Here, Jim Trusty’s wails about Celine Dion really served to demonstrate how absurd the grievance was. Ultimately, Trump’s Celine Dion picture was not a sufficiently urgent piece of property to hold up a search warrant.
A very conservative panel, including two Trump appointees, just confirmed that he’s not special anymore.
https://www.emptywheel.net/wp-content/uploads/2022/08/Screen-Shot-2022-08-31-at-6.40.53-AM.png11481718emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-12-01 18:07:232022-12-01 18:29:2911th Circuit to Trump: You’re Not Special
The most important part of the hearing in the stolen document case before the 11th Circuit Tuesday came when Chief Judge William Pryor asked what the 11th Circuit should do if they find for DOJ.
It seemed to me that because this is an appeal from an injunction for purposes of appellate jurisdiction, what we would do if you’re right we would vacate the injunction, vacate this order on the ground that there is a lack of equitable jurisdiction. But that would be it. What we would have jurisdiction over is not the entire case. We would have jurisdiction, if we have jurisdiction, it’s over that order, granting an injunction. Isn’t that right, technically, instead of reverse and remand, with instructions, it’s really just vacate.
If Pryor’s original view was right, it would allow DOJ to use the documents in a prosecution of Trump, but would leave Judge Aileen Cannon with the authority to still meddle in the case.
Sopan Joshi, arguing for DOJ, disagreed and walked Judge Pryor through a SCOTUS precedent that says that the Court would necessarily have the authority to reverse the decision entirely.
Joshi must have persuaded, to some degree, because Pryor decided,
If you’re right, what we’re really talking about is a middle position, that is, I was right about vacate but you’re right about the authority to remand with instructions to dismiss. Ordinarily if a District Court lacks jurisdiction, that’s what we do. We vacate and remand with instructions to dismiss.
Joshi replied, “Fair enough, and I’m not going to fight you too hard on it.
Judge Britt Grant then piped in to ask Joshi whether,
We, in your view, if we decide there was not equitable jurisdiction in the first place we wouldn’t need to go through the bases of jurisdiction for the injunction and Special Master or anything like that. The lack of jurisdiction as it was brought would resolve all the questions in your mind. Is that right?
Joshi was pretty happy with that too. “I think that’s right.”
This technical debate, which took up about a quarter of the hearing, not only betrays that at least two of the 11th Circuit Court judges are thinking of how to give DOJ what it wants, but how to do so procedurally. And they seemed persuaded, ultimately, that they should just vacate the entire Special Master appointment altogether, ending the entire Special Master process.
Things didn’t go so well for Jim Trusty, Trump’s lawyer. Just as he started to get going on claims about Biden ordering a search on a political candidate’s home (a lie), Grant interrupted and corrected his use of raid: “Do you think ‘raid’ is the right word for execution of a warrant?”
When Trusty tried to claim that this warrant had been a general warrant, Pryor scolded, “but you didn’t establish that it was a general warrant,” the first of multiple times when the judges reminded Trusty he had not made the arguments he presented today before, not before any court. Grant pointed out that Trusty was misstating what their purported goal was, which was originally to review for privilege.
Then, as Trusty reeled off the things FBI seized that, he said, were incredibly personal, Grant asked, “Do you think it’s rare for the target of a warrant to think it’s overreaching?”
Mic drop!
She was back again, a few minutes later, as Trusty tried to argue what he thought the binding precedent should be, rather than what it was. Grant got to the core issue, which was that Trusty was asking for special treatment.
If you set aside, which I understand that you won’t want to do, but if you do for the purposes of this question, set aside the fact that the target of the search warrant was a former president, are there any arguments that would be different than any defendant, any target of a warrant who wished to challenge a warrant before an indictment.
Trusty tried to reframe her question. “We’re not looking for special treatment for President Trump. We are recognizing there is a context here where no President–”
Pryor interrupted.
I don’t know that that’s particularly responsive. The question was, set aside the fact that the subject of the warrant is the President. What’s to distinguish this from any other subject of a criminal investigation?
When Trusty tried to raise the concerns that he claimed Trump had had all along, Pryor responded, “I don’t see where that case has been made.” Again, Trump didn’t make the arguments he needed to, in September, to get the relief he is demanding now.
That’s when Pryor laid out the real practical problem with Trusty’s claims.
We have to determine when it’s proper for a District Court to do this in the first place, which is what we’re looking at now. And the last question was one posed that makes clear that basically, other than the fact that this involves a former President, everything else about this is indistinguishable from any pre-indictment search warrant. And we’ve got to be concerned about the precedent that we would create that would allow any target of a federal criminal investigation to go into a district court and to have a district court entertain this kind of petition, exercise equitable jurisdiction, and interfere with the Executive Branch’s ongoing investigation.
After Trusty started wailing more about personal documents, Pryor described,
You’ve talked about all these other records and property that were seized. The problem is the search warrant was for classified documents and boxes and other items that are intermingled with that. I don’t think it’s necessarily the fault of the government if someone has intermingled classified documents and all kinds of other personal property.
That’s when Trusty revealed that FBI took a picture of Celine Dion.
Dion, remember, refused Trump’s request to play his inauguration.
Now Trump’s grave injury all begins to make sense! FBI hurt him by taking his Celine Dion picture. All the wailing and screaming since August now begin to make sense.
Trusty went on blathering, claiming — for example — that the injunction hadn’t harmed the government because they had months before and after the seizure to conduct their investigation. When Trusty claimed the injunction was overblown, Pryor invited,
Think of the extraordinary nature from our perspective of an injunction against the Executive Branch in a pre-indictment situation. Under the separation of powers, the judiciary doesn’t interfere with those kinds of prosecutorial and investigatory decisions. Right? That’s the whole nature of this kind of jurisdiction.
After Pryor asked about a new argument Trusty was making, Joshi reeled off the five different arguments that Trump has advanced.
Joshi closed with the practical fear Pryor had raised: If Trump has his way, every “defendant” will demand pre-indictment intervention.
This emphasizes how anomalous and extraordinary what the district court did her was. And I heard Mr. Trusty agree that there was no difference between this and other defendants. And I think that just emphasizes how the anomalous could become commonplace. And we think the court should reverse.
Andrew Brasher seemed more sympathetic to Trusty’s arguments, at one point asking how much more of a delay this would cause, as if he might let this all play out (and that’s what would happen if the 11th didn’t entirely vacate Cannon’s order.
But ultimately, Trump was treated as if not a defendant, then at least someone who could create untenable rights for other defendants, which sounded like something neither Pryor nor Grant were willing to do.
https://www.emptywheel.net/wp-content/uploads/2022/11/Screen-Shot-2022-11-22-at-10.07.24-PM.png8381982emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-11-22 17:16:062022-11-23 05:14:56Trump Finally Describes How FBI Injured Him: By Taking his Celine Dion Picture
A 2PM Eastern today, an 11th Circuit panel including William Pryor, Britt Grant, and Andrew Brasher will consider DOJ’s expedited motion to overturn Judge Aileen Cannon’s decision to appoint a Special Master. Oral arguments should be available here. The briefs are here:
Grant and Brasher were on the panel that already held that Cannon erred in intervening given that there was no evidence of callous disregard for Trump’s rights, so I fancy DOJ’s chances. That said, there’s no predicting how Pryor would rule, and if he were to support Trump’s support for Tom Fitton’s erroneous theory that there was no basis to question a President’s designations of something as a personal document, it might cause difficulties for an eventual prosecution.
For the reasons I laid out here, the decision the 11th Circuit makes, and how quickly they make it, will dictate how quickly DOJ could charge the stolen document case. DOJ likely has already discussed what documents they could charge without creating more national security damage. But particularly for any document that mixes classified documents with unclassified ones, DOJ first has to ensure possession of the documents they would charge before indicting (or even using the documents in interviews with Trump’s associates).
Two documents that are likely to be charged also include unclassified information:
The 11-page document compiling a confidential document, a secret document, messages (all post-dating Trump’s presidency) from a pollster, a religious leader, and a book author, as well as a document over which Trump has claimed privilege. This document would show that someone in Trump’s office accessed classified documents after leaving the White House and may show Trump using classified documents for his own benefit. The document was stored in a desk drawer in Trump’s office.
The packet including clemency for Roger Stone, which includes a one-page and a two-page document, one of which (presumably the information on the French President) is classified secret. This was also stored in a drawer in Trump’s office, though not necessarily the same one as the compilation. There’s no reason for Trump to include an official pardon in his desk drawer, but the tie between the Stone clemency and Macron may well explain why he did so. Given how Stone insinuated he would harm Trump if he wasn’t pardoned, the reasons Trump kept the document close at hand are likely to be quite interesting.
Trump’s team has been aggressively trying to prevent DOJ from keeping possession of these documents, by claiming that the first packet is both personal, attorney-client, and Executive privileged, and by claiming that other pardon packets can be Trump’s personal possession. It’s highly likely that Raymond Dearie will rule for DOJ on both those disputes. But if and when he does, Trump would object and Aileen Cannon would get to consider it anew.
That would make these documents unavailable for investigative purposes until after the new year. Whereas, if the 11th Circuit rules for DOJ, the government would be able to present these to a grand jury within weeks (assuming a quick decision and SCOTUS declining to review the decision, as happened with the last decision).
https://www.emptywheel.net/wp-content/uploads/2022/08/Screen-Shot-2022-08-31-at-6.40.53-AM.png11481718emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-11-22 11:24:062022-11-22 13:26:1611th Circuit Showdown: The Fight to Get the Documents to Charge against Trump
Lanny Breuer’s choice of DOJ lawyers to recognize yesterday was, in some ways, an improvement over the trend. I’m happy to see prosecutors rewarded for taking down the “Lost Boy” website. Rather than fixating on Anna Chapman and entrapping young Muslims, Breuer recognized prosecutors who entrapped older Muslims who attempted to smuggle someone they believed to be a Taliban member into the US. And Breuer even celebrated the rare prosecution of a bankster, Lee Bentley Farkas.
And while Breuer’s multiple awards to people seemingly making it easier to shut down the InterToobz in the guise of IP violations concerns me, it’s this bit that I found disgusting.
The Assistant Attorney General’s Award for Distinguished Service was presented to Kirby Heller and Deborah Watsonof the Criminal Division’s Appellate Section for their exceptional work in the successful appeal of sanctions imposed upon federal prosecutors in the case of Dr. Ali Shaygan.
Effectively, Lanny Breuer is rewarding two appellate section lawyers for winning an 11th Circuit Court decision overturning sanctions imposed on DOJ for gross prosecutorial misconduct. Breuer’s priorities, it seems, include ensuring that DOJ pays no price when it abuses its prosecutorial power.
The case goes back to February 2008, when Ali Shaygan was indicted for distributing controlled substances outside the scope of his medical practice; one charge tied that distribution to the death of one of Shaygan’s patients. Shaygan ended up hiring a defense team that included one attorney who had had a run-in with the prosecutors in his case. In addition, the lead prosecutor, Sean Paul Cronin, was admittedly buddies with the lead DEA Agent, Chris Wells. After Shaygan’s lawyers attempted (ultimately, successfully) to suppress a DEA interview with Shaygan on Miranda grounds, Cronin threatened the team.
AUSA Cronin warned David Markus, Shaygan’s lead attorney, that pursuing the suppression motion would result in a “seismic shift” in the case because “his agent,” Chris Wells, did not lie.
Nine months later, during the trial, one of the prosecution’s witnesses alluded in cross-examination that he had tapes of conversations–failed attempts to bribe Shaygan’s lawyer–at home.
During the cross-examination of Clendening on February 19, 2009, Shaygan’s counsel, Markus, asked Clendening if he recalled a telephone conversation in which Clendening told Markus that he would have to pay him for his testimony, and Clendening responded, “No. I got it on a recording at my house.”
This revelation led to exposure of the government’s collateral, failed investigation of Markus for witness tampering, as well as a significant number of discovery violations. In short, it became clear the government tried, unsuccessfully, to catch Markus bribing witnesses for favorable testimony and then hid all evidence they had tried. The prosecutor in the case was not properly firewalled form that investigation and even personally claimed to give authorization to tape the conversations. And in the days before the trial, the prosecutor checked in on the witness tampering investigation, apparently hoping to force Markus to withdraw from the case just as it went to trial. In the end, Shaygan was acquitted of all 141 charges against him.
After the trial, Miami District Court Judge Alan Gold held a sanctions hearing against the government for its gross misconduct. He held the government in violation of the Hyde Amendment. He had them pay all reasonable costs after a superseding indictment he judged was filed as part of the “seismic shift in strategy.” And he publicly reprimanded the prosecutors involved in the case.
Now, the government admitted that it committed significant errors.
The United States acknowledges that it initiated a collateral investigation into witness tampering and authorized two witnesses, Carlos Vento and Trinity Clendening, to tape their discussions with members of the defense team in violation of United States Attorney’s Office policy; that, although there were efforts made to erect a “taint wall,” the wall was imperfect and was breached by the trial prosecutors, AUSA Sean Paul Cronin and Andrea Hoffman, at least in part, because the case agent, DEA Special Agent Christopher Wells, was initially on both sides of the wall; and that, because the United States violated its discovery obligations by not disclosing to the defense “(a) that witnesses Vento and Clendening were cooperating with the government by recording their conversations with members of the defense team, and (b) Vento’s and Clendening’s recorded statements at the time of their trial testimony.” Finally, the United States “acknowledges and regrets” that, “in complying with the Court’s pre-trial order to produce all DEA-6 reports for in camera inspection on February 12, 2009 (Court Ex. 6), the government failed to provide the Court with the two DEA-6 reports regarding the collateral investigation, specifically Agent Wells’ December 12, 2008 report (Court Ex. 2) and Agent Brown’s January 16, 2009 report (Court Ex. 3).”
After the sanctions hearing, the government agreed to pay some legal fees associated with their misconduct. They just objected, and appealed, to the public reprimand and the requirement they pay for all fees after the superseding indictment.
But the appeals court not only threw out the entire financial sanction, it also vacated the public reprimands of the lawyers.
