Trump FBI, Palm Beach, United States – 31 Aug 2022

Regarding the Mar-a-Lago Search Warrant

June 28, 2021

Sept 26, 2022

Photo: AP Photo/Steve Helber

Threats to our democratic institutions continue to increase at an alarming rate. As lawyers, we have the responsibility to defend the underlying constitutional values and norms on which our democracy depends, including: the rule of law; institutional checks and balances; separation of powers; press freedom; truthfulness to the public; and the integrity of our system of justice.

These values are again under attack by the former president, those who continue to enable his behavior, and perhaps most troubling, the judge overseeing the Mar-a-Lago search warrant challenge.

In response to the repeated refusal by the former president to turn over Presidential records, some of which were classified at the highest level, the Department of Justice lawfully obtained and executed a search warrant of Donald Trump’s residence at Mar-A-Lago in Florida. The stated purpose of the Search Warrant was to gather evidence of violations of the Espionage Act, which governs  the handling of “national defense information,” and the Presidential Records Act, which regulates documents created during his term of office.

The matter, however, quickly veered off the normal course of a criminal investigation in the murky environs of a federal courtroom in the Fort Pierce Division of the Southern District of Florida. There, widely accepted legal precedent concerning criminal procedure, ownership of Presidential records, executive privilege, and national security were ignored in the rulings of Judge Aileen Cannon. 

The choice of this forum by the attorneys for the former president raises questions about Judge Cannon’s perceived impartiality, just as her anomalous rulings and statements raise serious concerns about her objectivity and competence. 

The Department of Justice sought the search warrant in the Southern District of Florida’s West Palm Beach Division, close to Mar-a-Lago’s Palm Beach location. Following Magistrate Judge Bruce E. Reinhart’s approval, the DOJ executed the warrant and seized over 11,000 documents, of which 100 were clearly marked classified. Weeks later, the former president’s lawyers commenced a civil action, not in the same West Palm Beach Division where the warrant had issued, but in the Fort Pierce Division, some 70 miles away, where Judge Aileen Cannon, an appointee of the former president, presides. 

This was not the first time the former president’s lawyers sought out Judge Cannon. In March of 2022, he filed a lawsuit in the Fort Pierce Division against Hillary Clinton, former FBI Director James Comey, and others, alleging conspiracies to deprive him of victory in the 2016 presidential election. When the matter was assigned to Judge Middlebrooks in West Palm Beach, the former president moved for his recusal on the ground that, as an appointee of President Clinton, the judge was biased. Judge Middlebrooks dismissed the complaint in a 65-page ruling where the judge stated that what the “[c]omplaint lacks in substance and legal support it seeks to substitute with length, hyperbole, and the settling of scores and grievances.

Rather than challenging the search warrant in West Palm Beach, the former president again chose Judge Cannon’s court to file a Motion for Judicial Oversight, and this time it remained there. The Motion sought a civil remedy: return of the seized materials; appointment of a “special master” to review the documents, and an injunction prohibiting DOJ from reviewing them for purposes of the criminal investigation, until such time as a review was completed for executive privilege and attorney-client privilege. 

The former president’s effort to find a more sympathetic forum proved fruitful. After she provided several opportunities to Trump’s lawyers to clean up procedural defects in their complaint, Judge Cannon agreed to their request for a Special Master in an order that was protective of the plaintiff’s special status as a former president. In a decision that shocked most legal analysts, Judge Cannon also enjoined the DOJ and FBI from reviewing the documents in connection with their criminal investigation into the handling of the documents.  

Of interest, a letter to the court from a Vietnam Veteran requested that Judge Cannon repudiate the Motion’s repeated description of the moving party as “President Trump”, rather than referencing his actual status as a former president; the letter noted that the unchallenged use of a title that suggests he is still president gives “aid and comfort to the continued effort to undermine” democracy.

The DOJ immediately sought a partial stay to allow the classified documents to be accessed for the criminal investigation and to protect national security, a motion that was denied by Judge Cannon. The DOJ also immediately appealed her ruling to the Eleventh Circuit. 

In an unanimous opinion of the three-judge panel (two of whom were nominated by former president Trump), the Appeals Court held that Judge Cannon’s restrictions on access to classified documents was an “abuse of discretion.”

In a rebuke to the District Court opinion, the Court of Appeals found that:

  • The District Court failed to meet the criteria for asserting equitable jurisdiction as the plaintiff was unable to demonstrate an essential factor in the exercise of such jurisdiction: that the government had acted with “callous disregard” of the former president’s rights.  
  • The former president had no “individual interest” in classified government documents, which are the property of the United States. Unsupported assertions that the documents had been declassified were a “red herring,” as even unclassified documents belong to the government, not the former president.  
  • There was a “long-recognized ‘compelling interest in protecting . . . the secrecy of information important to our national security’” and “the United States would suffer irreparable harm from the district court’s restrictions on its access to this narrow - and potentially critical - set of materials . . .” 

The Court of Appeals decision is important as a basic affirmation that, irrespective of the executive who appointed them, judges can (and must) act with impartiality and adhere to the rule of law. 

LDAD will continue to monitor and comment upon this matter, as its ultimate resolution is fundamentally important to our democracy and our justice system.

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