While you were stuffing your face with mashed potatoes and pumpkin pie over the holiday break, Donald Trump’s lawyers were busy doing what they do best. That’s right, they were embarrassing the shit out of themselves on the public docket.
The trouble started on Tuesday, when Trump’s lawyers tried to defend Judge Aileen Cannon bigfooting in to seize jurisdiction over the Mar-a-Lago search warrant issued by Magistrate Judge Bruce Reinhart to an enormously skeptical Eleventh Circuit panel.
Was there any precedent for a court intervening to deprive the government of using properly seized evidence to conduct a pre-indictment investigation, wondered the judges. In the moment, Trump’s lawyer Jim Trusty hemmed and hawwed. But later he had a brain wave: What about Rudy Giuliani?
And so he fired off this letter apprising the panel of supplemental authority, albeit in the Second Circuit.
The question raised was whether a court has previously asserted equitable jurisdiction to enjoin the government from using seized materials in an investigation pending review by a special master. The answer is yes. The United States agreed to this approach – and the existence of jurisdiction – in In the Matter of Search Warrants Executed on April 28, 2021, No. 21-MC-425-JPO (S.D.N.Y.) (involving property seized from Hon. Rudolph W. Giuliani) – and, under mutual agreement of the parties, no materials were utilized in the investigation until the special master process was completed.
Astute observers will note that Giuliani is a lawyer — or was, anyway — so presumably a raid of his office would collect a high volume of privileged material, including on his guaranteed fraud associates Lev Parnas and Igor Fruman, who were then under federal indictment. And newly-appointed Special Counsel Jack Smith is plenty astute.
“Plaintiff asserts that In re Search Warrants Executed on April 28, 2021, No. 21-mc-425 (S.D.N.Y.), is an example of a case in which ‘a court has previously asserted equitable jurisdiction to enjoin the government from using seized materials in an investigation pending review by a special master,’” Smith wrote to the court on November 24. “That is incorrect.”
In fact, that case came about because the Justice Department requested that Judge Paul Oetken authorize the appointment of a special master because the government found itself in the “exceptional” circumstance of searching “the files of a criminal defense attorney with cases adverse to the United States Attorney’s Office.”
There was no injunctive relief, and certainly no finding of equitable jurisdiction to allow the subject of an investigation to use the court to interrogate the propriety of a judicially authorized warrant.
“As plaintiff recognizes, the court did not ‘enjoin the government, id.; instead, the government itself volunteered that approach. Moreover, the records there were seized from an attorney’s office, the review was conducted on a rolling basis, and the case did not involve a separate civil proceeding invoking a district court’s anomalous jurisdiction,” Smith went on. “None of those is true here.”
Which is hilarious, and also probably irrelevant.
Last week’s hearing before Chief Judge Pryor, as well as Judges Grant and Brasher, both Trump appointees, was such a spectacular beat down that the conclusion is basically a formality. The court is pretty clearly going to rule that Judge Cannon abused her discretion by finding jurisdiction to appoint a special master absent any suggestion that the government acted inappropriately when it conducted the search at the former president’s club. And since special master Judge Dearie has scheduled a hearing Thursday on issues of privilege, it seems likely that the Eleventh Circuit will act with dispatch — perhaps even before this post makes it to publication.
Meanwhile, the former president spent the weekend losing his mind about the special counsel over at Truth Social. Here’s one sample:
Jack Smith (nice, soft name, isn’t it?), is a political hit man, who is totally compromised, and shouldn’t be allowed anywhere near our already highly WEAPONIZED & CORRUPT “Justice” Department and FBI, which are stuffed with, and listening to, Radical Left “MONSTERS,” who will cause difficulties for our Country the likes of which we have not seen before. By the way, OBAMA SPIED ON MY CAMPAIGN (and got caught!), & what about the MASSIVE Joe & Hunter BIDEN CORRUPTION (Evidence already in!)?
The holiday is over, and we’re all sick of this turkey. Time to scrape the dregs into the dog’s bowl and get on with whatever the Special Master intends to do with this case.
Liz Dye lives in Baltimore where she writes about law and politics.