Donald Trump: Investigations, Litigation, Impeachment

Mar-a-Lago Search

Professor Cunningham articles for The Conversation (total downloads for all 5 articles: 270,000 +)

Why searching an ex-president’s estate is not easily done4 important things to know about the FBI’s search of Mar-a-Lago, Aug. 9, 2022 (republished PBS Newshour, Aug. 9, 2022)

Unsealed court documents show the FBI was looking for evidence Trump violated the Espionage Act and other laws here’s how the documents seized show possible wrongdoing, Aug. 12, 2022

Trump’s Mar-a-Lago lawsuit spotlights how difficult search warrants are to challengeby a criminal suspect or an ex-presidentuntil charges are brought, Aug. 23, 2022

FBI's Mar-a-Lago search warrant reveals how Trump may have compromised national security -- a legal expert answers 5 key questions, Aug. 26, 2022 (republished Yahoo News, Aug. 26, 2022)

Trump faces possible obstruction of justice charges for concealing classified government documents2 important things to know about what this means, Aug. 31, 2022

Donald J. Trump v United States, US Court of Appeals for 11th Circuit, Appeal No. 22-13005

The U.S. Department of Justice (DOJ) has appealed an order that
(1) appointed a special master to review the property seized by the FBI from Mar-a-Lago, “manage assertions of privilege and make recommendations thereon” and “evaluate claims for return of property, and
(2) temporarily enjoined the DOJ from review and use of any of the materials seized from Mar-a-Lago “for criminal investigative purposes” pending resolution of the special master’s review.

This order was entered by U.S. District Judge Aileen M. Cannon on September 5, 2022. The appeal was filed on September 8.

On September 12 Judge Cannon entered a further order naming retired federal judge Raymond J. Dearie as the special master and specifying his duties, which included making recommendations as to “any privilege disputes between the parties (including any formal assertions of executive privilege)” and identifying which seized materials were “personal items” and which were “Presidential Records.”

On September 21 the Court of Appeals granted an emergency request from the DOJ to put a hold on Judge Cannon’s orders to the extent they related to seized materials that have classification markings. The Court of Appeals ordered that, while the appeal was pending, materials marked classified would be excluded from the special master’s review and that the DOJ would not be enjoined from using those materials for criminal investigative purposes. On October 13 the Supreme Court denied Trump’s request to reverse that order.

In its briefs to the 11th Circuit for the main appeal, the Government’s leading argument is that Judge Cannon never had jurisdiction – legal authority – to act on this lawsuit because the following four “Richey” requirements were not met: (1) the government displayed “callous disregard” for the constitutional rights of the plaintiff, (2) the plaintiff has “an individual interest in and need for” the seized material, (3) the plaintiff would be “irreparably harmed” if the seized material is not returned, (4) the plaintiff does not have an alternative, adequate “remedy at law.” Brief of the United States (Oct. 14, 2022 page 21), citing Richey v Smith, 515 F.2d 1239 (5th Cir. 1975).

The next DOJ argument is that, even if Judge Cannon did have jurisdiction, former President Trump needed to have “a plausible claim of executive privilege” in order for Judge Cannon to forbid the Government (until completion of the special master review) from using Presidential records that were seized for criminal investigative purposes. Brief of the United States, pages 28-38.

According to the detailed inventory filed by the DOJ, the FBI seized over 1600 items at Mar-a-Lago that were not governmental documents. In its initial brief, the DOJ argues that even personal materials could be relevant to prove that Trump had possession and control of seized documents marked classified and even accessed them after he left the White House if the personal materials were “intermingled” with documents marked classified. In its reply brief, filed November 17, the DOJ went further to argue that Trump has “no entitlement” to return of seized materials “unrelated to the investigation” and added that “in any case” the Government has provided Trump “copies of all seized materials except those bearing classification markings."

Trump's Brief says very little about the "Richey Requirments" issue and does not address executive privilege at all. Instead, Trump's Brief devotes considerable space to an argument that the Court of Appeals itself lacks jurisdiction to cancel the special master proceedings. (Nov. 10, 2022 pages 29-51).

Oral Argument was held on Tuesday, November 22, from 2:00 - 2:40 pm.
The three-judge panel consisted of Chief Judge William Pryor, Judge Britt Grant and Judge Andrew Brasher
Judges Grant and Brasher were also members of the three-judge panel that issued the September 21 order granting the DOJ emergency request to exempt documents marked classified from the special master review and from Judge Cannon's injunction against DOJ use pending the special master proceedings.

Questions from the bench focused almost entirely on the "Richey Requirements," and counsel for Trump was pressed in particular as to whether the plaintiff had shown or even alleged that the search was unlawful. There was no discussion of executive privilege.

US Court of Appeals for the 11th Circuit, Appeal No. 22-13005
-- Fourth Amendment Scholar Amicus Brief in Support of Neither Party, filed by Clark D. Cunningham (Sep. 15, 2022)
---- Plaintiff’s request for special master and injunction against review of documents is best understood as vindicating the constitutional “right of the people to be secure in their papers” pp 3-8
----Protection of Fourth Amendment rights should not be limited to the narrow grounds for obtaining relief under Fed. R. Crim. P. 41 pp. 9-12

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