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Notes -
Some new developments in Trump v. United States which is apparently the caption for the case in the Southern District of Florida where Trump sought (and received) the appointment of a special master to review certain documents the government seized during the execution of its warrant at Mar-a-Lago. According to Judge Cannon's order granting the request the special master is supposed to be reviewing the documents for three categories of information:
Personal items and documents.
Material subject to claims of attorney-client privilege.
Material subject to executive privilege.
The special master whom Judge Cannon appointed is District Court Judge Raymond Dearie who was one of Trump's suggested candidates. Based on some more recent filings Dearie has scheduled a status conference for today and circulated a proposed schedule for document review. I want to focus on Trump's reply to Dearie's proposed schedule. Most of the response focuses on the duration of the review. Dearie thinks it can be done by Oct 7th but Trump's team wants to use the full time contemplated by Cannon's order, ending at the end of November. I'm not going to talk about the scheduling dispute though, rather I think the most interesting part is the third to last paragraph of Trump's filing. It reads, in its entirety:
This is an interesting paragraph. First, the implication that an inventory of what exactly was declassified would be appropriate in a situation where declassification was a reason to return implies that this is not such an action. Whatever Trump's basis that the classified docs should be returned, it is apparently not because they have been declassified. It's also understandable why Trump doesn't want to specify what he did or didn't declassify. If he says anything other than "I declassified all the documents" he's basically admitting to a crime. "Yes I did take classified documents with me when I left and I did refuse to return those documents to the government in response to a subpoena even though my representative lied and said we did." On the other hand, it's easy to see why Dearie wants the information. If the documents are declassified there's maybe an argument they should be returned as personal property but if they are still classified it's hard to see any angle but (3) applying.
This is where I run out of much to analyze but I'm wondering, how binding are any determinations Dearie makes about classification in other proceedings? My understanding is that if Trump came out and made claims about particular documents in this case he could then be estopped from asserting contrary claims about the same documents in another case, but I'm not sure how that works when the judge (or special master) makes the decision rather than the party.
I'm not sure what Dearie's angle here is. The scope of the review does not include classification status, and it's not clear what he plans to do with this information. Trump is arguing that since it's irrelevant at this stage of the investigation he shouldn't have to disclose which documents were declassified and how, because it would give the DOJ a sneak preview of what defense he planned to use if he were indicted for mishandling classified information. It's essentially saying that if the DOJ wants to hear specifics about declassification it should either wait for him to request return of the documents (unlikely), or indict. If the DOJ gets to hear his declassification arguments before they indict it gives them a gauge on how to move forward; if they think his arguments are cock and bull they may be more willing to move forward than if they had no clue about what he planned to argue.
As for the estoppel, generally speaking, it applies to any issue that has been settled. To nitpick, Dearie isn't making any judgments about classification, only privileges, etc. So theoretically, if Dearie were to rule that a particular document wasn't privileged, and the DOJ wanted to use it as evidence in another proceeding, Trump couldn't try to preclude it due to privilege. I say theoretically, though, because there are some limitation. First, estoppel is more of a civil thing than a criminal one, and while this case isn't exactly criminal, it falls under the rubric of "criminally-related civil proceedings", and that could cause problems. Second, it only applies with a final judgment. So even if a court ruled that estoppel would apply here, it would only be effective if Trump were actually charged and convicted or acquitted. If the DOJ doesn't indict or indicts but then drops the case it wouldn't apply.
This is not my underatanding as a non-lawyer. Wikipedia says that "Estoppel is a judicial device in common law legal systems whereby a court may prevent or "estop" a person from making assertions or from going back on his or her word". However, I dont think it applies in every circumstance, e.g. I don't think there's any sort of estoppel attached to an assertion of why a defendent didn't commit a crime. So while I definitely think you're incorrect to think that the matter need be settled, it is entirely unclear to me whether estoppel is relevant.
Estoppel applies to any issue in the case that is ruled on by a judge. A defendant's assertion as to why he didn't commit a crime isn't something that a judge is going to rule on, there's unlikely to be the kind of parallel litigation where it would matter, and estoppel is limited in criminal cases anyway, so it's unlikely to be relevant there. But if a defendant in a civil case makes a motion to exclude certain material from evidence because it's privileged, the judge appoints a master who determines that it isn't privileged, and the judge issues a ruling that the material isn't privileged and admits the material into evidence, the defendant can't argue in another, related, case that the material should be excluded because it's privileged.
So what you're referring to appears to be issue estoppel or collateral estoppel.
But estoppel is broader than that, and includes equitable estoppel.
I think non-courtroom situations may even lead to estoppel. For example, if you sell me property outside of court, that action may estopp you from later saying in court that the property wasn't yours at the time.
Anyways, I remain unsure whether estoppel may apply here or not. But, as an addmitted non-lawyer, I am extremely confident that estoppel is not limited to prior decisions.
Yes, I apologize, I should have clarified that I was referring to collateral estoppel, or issue preclusion, as it's mostly known nowadays. There are several kinds of estoppel but this is the one I brought up because it's the only one that could apply here; most estoppel doctrines are only superficially related and involve different areas of the law. Equitable estoppel is much different and is usually used in torts cases where one party misleads another party to act to his detriment. Your property example doesn't quite hit the mark because estoppel bars actions, not testimony. A better example involving land would be this: You buy a piece of property with a fence along what you assume is the boundary. You ask your neighbor whose side it's on and he tells you it's on your side, but this isn't the case. After you tear down the fence he has a survey done that shows the fence was actually on his side of the line. He's estopped from suing you for destruction of the fence. Keep in mind that the doctrine requires reliance and detriment; if you didn't tear down the fence and after the survey he merely told you that it was, in fact, on his side, you can't assert that your property line moved because he was initially mistaken. And even if you did tear down the fence and he was estopped from suing you, he'd still own the property up to the actual line. It should also be noted that equitable estoppel is an equitable doctrine, meaning there's no legal right to it—asserting the defense is merely a prayer to the court that legal remedies are insufficient but relief should still be granted based on fairness principles.
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