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Culture War Roundup for the week of December 5, 2022

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The 11th Circuit put the whole Mar-a-Lago Special Master saga to bed last week. You can read the unanimous opinion here (for those counting, the judges were two Trump appointees and one Bush).

This outcome wasn't surprising at all, especially with how oral argument went. As background, the FBI raided Trump's home in Mar-a-Lago because they convinced a federal magistrate that they're likely to find evidence of criminal activity there. They were right on that front, and they recovered various classified/restricted documents in Trump's possession. Although it's not clear why Trump was so stubbornly enthusiastic about holding on to the documents, there doesn't seem to be much evidence thus far that the documents in question were particularly damning/dangerous, nor that he was holding on to them to sell them or whatever. Nevertheless, the warrant means the FBI lawfully (distinct from morally/ethically/correctly/whatever) seized the property pursuant to a criminal investigation.

If the government takes your shit because they had a warrant, the recourse available to you is virtually non-existent. The traditional avenue available within a criminal investigation is to wait for the indictment and then challenge the legality of the search and seizure through a suppression hearing. If you can convince a judge that the property was illegally obtained, your remedy is that the government is prohibited from using the property as evidence against you. Very often, this destroys the government's case against you and the charges get dismissed. Only after the criminal saga is over can you ask for your stuff back from the government. I routinely help my clients get their stuff back once their case is over, including things like firearms and (my favorite) a small jar of weed. Sometimes I just contact the detective directly, sometimes I need a judge to sign an order. It's routine.

But what if you want your stuff back before even an indictment? The typical answer is that you are shit out of luck, because the government is presumed to be entitled to use property they lawfully took from you. But there are some limited exceptions. In the Richey v. Smith case, an IRS special agent stopped by Richey's office and asked to examine some business records and the guy complied (no warrant, and no Miranda warnings). But after talking to an attorney, Richey changed his mind and asked for his stuff back and the IRS said they'll hand it back once they're through with them. The district court initially ruled they lacked jurisdiction to order the government to return the documents, but on appeal is where we get the "Richey four-factor test". That ruling says that courts can have what is termed "equitable jurisdiction" provided the person asking for their stuff back satisfies every factor:

  1. Did the government act in a "callous disregard" of the person's rights?

  2. Does the person have an interest in and need for the property?

  3. Will the person be irreparably injured by not having his property back?

  4. Does the person lack other legal remedies for not having his stuff?

This is what Trump was asking district court Judge Canon to do. There were several problems with this request, chief among them that unlike the Richey case, the government had a warrant for Mar-a-Lago. The other problems were that Trump's lawyers didn't even try to hint at satisfying any of the four-factor test (See starting on pg 12 of the opinion: Did the government act in a "callous disregard"? No, because they had a warrant. Does Trump need his property back? No, because Celine Dion pictures are not a priority right now. etc.). The closest Trump's lawyers got to a coherent argument was when they vaguely intimated (without saying it outright) that Trump's circumstances were special because he is a former president.

Around the 21:00 mark of oral argument, the judges asked James Trusty if any other person whose property was seized during the course of a criminal investigation would have access to the same remedy Judge Canon gave Trump, and Trusty swallowed the pill and said yes. I'm definitely in favor of having higher scrutiny levied on government search and seizure, but this would be a completely bonkers departure from the current status quo. Nobody likes having their stuff taken and being the subject of a criminal investigation! Applied consistently, the courts would be flooded with these requests and it would become near-impossible to prosecute anybody.

As the court opinion says:

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.

As far as I can tell, James Trusty is a competent attorney with the requisite experience to litigate issues at this level but he just fell flat on his face hard. No amount of legal acumen can compensate for having a client who insists on unreasonable demands and tactics.

As far as I can tell, James Trusty is a competent attorney with the requisite experience to litigate issues at this level but he just fell flat on his face hard. No amount of legal acumen can compensate for having a client who insists on unreasonable demands and tactics.

Seems most likely that this was a (seemingly successful) delay tactic.

Delay what exactly? Canon had issued an order that stopped the DOJ from reviewing the documents for their criminal investigation, but the order was quickly overturned and might have been issued too late to have prevented anything. All of this could have been much more easily avoided if Trump just returned the documents way back when.

I was pretty certain that the way the events unfolded suggested trump was not in imminent trouble.

Business as usual.

When writing on this subject before, it was very hard for me to read Trump’s team as acting in...I don’t want to say “good faith,” given that they may well be executing his best option. In expectation of having the facts on their side. This was the case for most of the Kraken lawsuits, too. Throw shit at the wall and hope for enough FUD that something sticks. The upside there was obvious—validation for his political campaign, hurting his enemies—but what does Trump really get from demanding his documents back?

The man likes winning. Has done quite a lot of it, even. In real estate, that meant throwing his legal weight around until something gives. Maybe you step on some toes, but you can’t make enemies with people who already hate you. I think Trump has no expectation of neutral observers. That removes one of the main downsides to frivolous suits. Whether or not he gets his stuff back, it’s a chance for subordinates to demonstrate their alignment.

The implication for any future lawsuits is clear. Trump consistently provides evidence that he is more interested in team loyalty than in objectivity. Attempts to use his suits as evidence to the contrary should be discounted.

I agree. This also seemed to successfully take some steam out of this story. He stopped the momentum and I'm sure that a large portion of people have forgotten about this. If it does pop up again, it'll be even easier to convince his audience that this is fake news Russiagate stuff again.

As Glenn Reynolds would say, "the process is the punishment". The goal of siccing the IRS, FBI, SEC, etc... on one's political opponents is not to catch them in a criminal act but to bleed them.

The "well funded cabal of powerful people" that bragged about foisting Biden on us needed to keep Trump in the news through the midterms lest the spotlight turn on them.

January: plaintiff delivers 15 boxes to NARA.

February: plaintiff asks NARA to delay DoJ access to boxes

April: plaintiff threatens “protective assertion of executive privilege”

May: FBI reviews anyway; simultaneously subpoenas any remaining documents

June: plaintiff delivers more documents, claiming a “diligent search”

Early August: FBI obtains and executes warrant, finding an additional 15 boxes with classified material, and denies requests for special master

Late August: plaintiff asks district court for all sorts of concessions via a vague civil filing; court complies, and federal government immediately requests partial stay

September: district court rejects stay, feds immediately appeal to circuit

October: plaintiff denied appeal by Supreme Court; circuit responds to feds

Where, in this timeline, did the federal government stall? Looks to me that Trump’s team caused most of the delays.

It's not about the government "stalling" anything its about forcing the plaintiff to spend time and money hiring lawyers and filing appeals. Again the process is the punishment.

Did you know that it was Trump who chose to file this lawsuit? Perhaps you're confused and thinking about a different case?

The "well funded cabal of powerful people" that bragged about foisting Biden on us needed to keep Trump in the news through the midterms lest the spotlight turn on them.

If Trump had actually complied with the January request, he wouldn’t be in this situation. Had he sorted it out by June, same deal. This week the court slapped down a suit which never had to happen, one based on absurd jurisprudence and an insistence that the normal rules don’t apply.

We may never know why Trump refused to turn in all the classified material he kept with his golf shirts and Celine Dion memorabilia. But we’re not having this conversation because the Deep State needed a distraction. We’re having it because Trump doesn’t take anything lying down.

How did the government force Trump to file his entirely frivolous action?

How is this a case of the process being the punishment? Trump had multiple opportunities to voluntarily hand over the documents in question privately and only after failing to do so did the DOJ get a warrant.