Two days ago, the Trump legal team responded to the DOJ response to their request for a Special Master to review some of the documents taken during the Mar-A-Lago search. I had planned to write about the response-to-the-response, but, as it turned out, Trump attorneys more or less restated their case and failed to address any of the DOJ’s substantive points. Yesterday, oral arguments took place in front of District Judge Aileen Cannon. The Lawfare Blog’s Anna Bower was in the courtroom and published an excellent piece of reporting on how things unfolded. I’ll be using aspects of that reporting to provide some analysis on how things went for both sides.
To start, for those not familiar with Federal proceedings, I thought it might be useful to dispose of a few things. As you might have noticed, the judge who is heading this case is different than the judge who issues the warrant. The warrant was issued by a Magistrate judge. Those are judges who are picked by the district judges to handle, among other things, the issuance of warrants and conduct preliminary criminal proceedings. They cannot, however, rule on the request that was brought before the courts. So for this case, a District judge, someone who was nominated by a President and approved by the Senate, needs to preside.
A lot has been made of the fact that this case was given to Judge Cannon, as she was one of Trump’s final nominees, approved after he lost the election. Based on my experience with the workings of Federal District Courts, I think these concerns of a “fix” are overwrought. First, the way cases are assigned to District Judges is largely left up to each district. I have not seen anything about how the Southern District of Florida handles its cases. However, I would be shocked to find out that any chicanery went into the assignment of this case.
More importantly, any decision on this motion is going to be called partisan. If the Court finds for Trump, then it will be because she was an appointee. If the Court finds for the DOJ, then it’s the government protecting its own. And that partisan lens is already being applied to yesterday’s hearing by people who are clearly not familiar with the way that Federal Justices work in these cases. A lot of left-leaning folks are predicting that based on the Judge’s questions that she’s clearly biased towards Trump. However I, and more importantly, my live-in expert on Federal Law, saw what happened yesterday as pretty standard.
The first thing of note were the steps the court took to prevent this from being a live reported event:
If you didn’t see any live tweeting of the proceedings, that’s because as an initial matter, Judge Cannon reminds spectators that both audio recordings and social media use are prohibited during the hearing. That includes, she adds, directing others outside the hearing to post on social media. So there is basically a media blackout during the hearings.
[…]
[During the one 15 minute recess] marshals patrol up and down the center aisle, eyeing anyone holding a phone with suspicion. At one point, they dramatically shout the name of a reporter a few rows back. Instructing her to collect her belongings, they remove her from the courtroom. “She tweeted,” someone whispers fearfully.
Tweeting is verboten—even during recess.
A few minutes later, the marshals nail a second victim. But before they can claim a third, Judge Cannon returns to call the court back into session.
https://www.lawfareblog.com/mar-lago-showdown-federal-court
I personally find this level of “secrecy” in terms of live-reporting a public hearing absurd. However, the Judge’s actions are not uncommon and they have control over what happens in their court room.
The second takeaway, both sides performed more or less how you expected them to. The DOJ legal team was pretty much matter-of-fact and kept to the case law as much as possible. Their job in the arguments, much like the brief, is to provide the judge with a step-by-step legal rationale for denying the motion. There were a couple of things we did learn from this. First that the “filter team” (colloquially known as the “Taint (hee hee) team”) has already finished their work. This is the independent team that reviews the documents in order to identify which need to be filtered out because they either involve things like Attorney-Client privilege or do not apply to the case.
Members of the Taint team walked the court through their process as part of the hearing:
[One Taint team attorney] diligently walks Judge Cannon through the filter process. First, he says, a filter team prepared the investigation team with an extensive protocol to follow during the search. That protocol included instructions to apply “very broad criteria” for the segregation of potential attorney-client privilege-protected documents during the Mar-a-Lago search. Those criteria, he says, included any document that appeared to contain the name of an identifiable attorney or any document that appeared to involve legal matters. He clarifies that while the motion only refers to the “45 office,” the same filter process applied in fact to all areas involved in the search, including the storage room.
Continuing to detail the filter process, he explains that the potentially privileged material was kept in a separate box on site and, once segregated for the filter team, has since remained in the custody and control of the filter team only. Those documents were transported back to the office, where they remain in a locked room that is only accessible by members of the review team. What’s more, during the review process, the filter team’s attorneys examine the documents and apply legal analysis to determine whether the materials should be classified as privileged. Further, he explains, the filter team was prepared to provide the Trump team with a copy of the items marked potentially privileged; however, the filter team chose to respect the court’s preliminary ruling on the special master appointment and thus put a pause on that process.
(ibid)
One thing I had not realized until I read this report is that the Trump motion only applies to a subset of the materials taken during the search–the ones retrieved from his personal office versus the documents taken from the storage room. These are arguably the most important documents for review from the DOJ perspective as these were the ones that were intermingled with personal documents (like the President’s passport).
Also we learned that the DOJ was prepared to share materials with the Trump legal team and release additional information to the public:
First, she reveals that the Justice Department has made available a more detailed inventory list to the Trump team prior to the hearing. And she asks whether either side objects to her unsealing that document. When neither side does, she announces that the inventory will be unsealed. As of this writing, it is still not available on the docket.
She then moves to the next preliminary issue: the status report by the FBI’s filter team, which reviewed the material seized in the search for potential privilege issues. Cannon asks the government if it objects to providing Trump’s team with the status report for review. In response, Bratt announces that the filter team is in court today; he would defer to its judgment on the status report. At this point, two men in black suits stand in the audience and make their way toward the podium. After introducing themselves, one of the two informs the judge that the filter team has no objection to making the status report available to Trump’s team. However, he asks that the document remain sealed and thus out of public view.
[…]
After [the recess] Kise confirms that the Trump team has had sufficient time to review the documents, he requests that the court keep the document under seal “out of an abundance of caution,” because it relates to matters involving attorney-client privilege. Cannon agrees.
ibid
I have not been able to check if the inventory has been unsealed yet, but I expect it should happen soon. The release of the inventory tool place while I was drafting this post and can be found at NPR among other places. I also want to note that once again we see that the Trump legal team policy around transparency appears to only extend to situations where they think the release will benefit them. While that is good lawyering, it also points out that their appeals to “making things transparent for the good of the public” should be taken with a grain of salt.
As far as the Trump team’s performance (and note that Christina Bobb was not with them in court–which may have to do with the fact she appears to be implicated in obstruction), again it was what you more or less would expect. In general they played a game of “fact lawyer/fire lawyer” with on person presenting facts and legal theory and the other one grandstanding like it’s a final jury summation in a Captial trial.
That isn’t to say that the “fact lawyer” Chris Kise wasn’t above muddying the water:
He begins by observing that there is a “lack of trust” between the parties, a “lack of transparency” in the investigation, and a resulting “lack of faith” in the administration of justice. He implores Cannon to “help restore public confidence” by acceding to Trump’s “modest” request for a special master. This is a case about presidential records in the hands of the 45th president of the United States, he argues, not some case of a Defense Department staffer “stuffing documents in a bag” and sneaking out overnight.
ibid
However, that type of rhetoric was mild in comparison to his co-counsel James Trusty:
Trusty, makes his way to the podium. He accuses the government of pursuing an “extraordinary” strategy of sidelining the supervision of the court in order to retain control over the investigation. The government’s brief put forward a “phenomenal” argument regarding the Fourth Amendment, he says. Under the government’s theory, he argues, it can seize anything from anyone and get away “scot-free,” so long as it finds something it deems “illegal.” This is the former president of the United States, he says. But what, he muses, if it’s just some average Joe? It’s a bit of an odd argument—a kind of reverse slippery slope: If it can happen to a former president, Warren Buffet may be next, and after him, maybe Kim Kardashian? And where does it all end? It could be your house.
Trusty then complains about a footnote the government included in its motion, where it offered to unseal “a more detailed receipt for the property seized during the August 8, 2022 execution of the search warrant.” In Trusty’s view, that footnote was little more than the government’s effort to say, “Look at the dirt we have!” Similarly, he contends, the government’s inclusion of a photograph of classified documents strewn across the floor was “obviously a press release.” Proclaiming that the court cannot allow this kind of conduct to go “unfettered” and “unchecked,” he practically shouts that this case “cries out for oversight.”
ibid
It goes on from there and really doesn’t change tact. Very little of it is any argument on the law itself.
Finally as to the Judge’s questions, as I mentioned earlier, prior to reading this article I saw a number of people fretting on Twitter about how tough the judge was on the DOJ team. From my perspective, she was tough on both sides in her questions, which is something I’d expect of a Federal judge.
For example, she pushed the DOJ on their assertion that appointing a Special Master would be an extraordinary step in this case and therefore shouldn’t be done:
Judge Cannon interjects to ask why a special master appointment would be unprecedented. Edelson replies that there’s never been a special master appointed on executive privilege issues. Judge Cannon is having none of this. Isn’t that, she asks, because there’s never been a seizure from a former president like this? Edelson tries to shift gears, pointing to Nixon v. GSA, which held that the examination of Richard Nixon’s records by officials within the executive branch did not violate presidential confidentiality.
But Judge Cannon remains skeptical. Observing that Edelson might be “overreading Nixon,” she queries why “for some period of time,” a former president couldn’t assert executive privilege over certain documents. In response, Edelson implores the court to “focus on the legal provisions.” Here, she says, that’s the PRA.
ibid
She also pushed Trump’s attorney’s on their points:
Now Judge Cannon directs her attention to Bratt’s earlier argument that Trump’s Fourth Amendment claims be litigated later. Why not wait for relief, she asks, until later? Trusty admits that he could wait for a Franks [post-indictment] hearing or file a motion to suppress at a later stage. But at that point, he gripes, there’s already been an indictment. And, he says, the government wants to ignore language in Rule 41(g) that specifically ties it to the Fourth Amendment: The rule specifically refers to relief for “an unlawful search and seizure of property.” He complains that this was a “colonial times” search, where agents had discretion to “take whatever they want.”
ibid
Note that, contra Trusty, there has been no indictment filed in this case. Additionally, the DOJ team was given time to respond to this and other arguments before the Judge closed the proceeding.
The hearing finished with Judge Cannon announcing there would be no oral decision in this case. So no we wait for her to release the written decision “in due course.”
In terms of how the judge will decide, based on everything I read, I still expect Trump’s motion to be denied. Again, I think things have gotten this far solely because of the extraordinary nature of the plaintiff in this case. That said, if the Judge grants the motion I won’t be shocked, especially given her comment over the weekend that she was inclined to grant Trump’s request.
Still, beyond speculating (and I have a record of being spectacularly wrong while doing so) we won’t know what the outcome is until it’s released. In the meantime, all I can say is that it appears to me that everything about the hearing can be seen as a Judge doing everything she can do to cover herself, and her decision, from future critique and calls of partisanship. And as I said before, none of that will matter, because regardless of the outcome (1) someone will call it partisan, and (2) it’s almost certainly going to be appealed to the Eleventh Circuit Court of Appeals.
