DOJ strikes back

 Here's the 36 page filing.

It includes pictures of the classified documents:

Politico covers the filing here:

“The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation,” Justice Department counterintelligence chief Jay Bratt wrote.

“That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the ‘diligent search’ that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter,” he added.

***
DOJ indicated that the “commingling” of Trump’s personal effects with classified materials is “relevant evidence of the statutory offenses under investigation.” Three classified documents were found in a “desk drawer,” prosecutors said, without providing further details. Trump’s claims that the items should be returned to him have no merit, they added.

“Any Presidential records seized pursuant to the search warrant belong to the United States, not to the former President,” Bratt argued.

The submission to a federal judge in Florida opposes Trump’s request for an independent third party to review the records the FBI seized during their Aug. 8 raid on the former president’s Florida compound. DOJ urged U.S. District Court Judge Aileen Cannon to oppose Trump’s request for a so-called “special master,” contending that his belated request was merely a bid to disrupt the investigation.

In particular, Bratt urged Cannon to reject Trump’s claim that any of the documents seized were subject to a claim of executive privilege by him — and therefore unrecoverable by the current administration.

“The former President cites no case — and the government is aware of none — in which executive privilege has been successfully invoked to prohibit the sharing of documents within the Executive Branch,” Bratt wrote.

Here comes the Special Master

If you recall, Judge Cannon showed some skepticism over Trump's lawsuit requesting a special master and ordered Trump's legal team to beef up its request.

They did so Friday evening in this pleading.

The next day, before DOJ could respond, Judge Cannon issued a preliminary order saying that she was inclined to appoint a special master.   

The government will have a chance to respond by Tuesday and then the Court will have a hearing on Thursday.  But this all seems beside the point as Cannon will likely follow through and appoint a special master.  

Here's hoping we get special masters in any case in which sensitive or privileged material is being reviewed by DOJ. Criminal defense lawyers have long complained about  DOJ's filter process, but the 11th Circuit recently turned back a challenge to a filter team in U.S. v. Korf.  Perhaps the Trump case will make some headway with the issues of having DOJ doing its own filter of privileged or otherwise sensitive documents.

Redacted search warrant affidavit in Mar-a-lago search released

 You can read it here.

Lots and lots of redacted pages.

And here is the previously sealed government response to what should be redacted.

Career Opportunities (Let's Make Lots of Money and Then Donate?)

By Michael Caruso

Mr. Byrne's post yesterday reminded me of a recent article and our professional choices.

Let's assume we all want to "do good." Is the way you do good effective? Is the way you do good actively harmful? The "effective altruism" movement arose out of a desire to make sure that attempts to do good actually work.

For a time, the E.A. movement recommended that "inspirited young people should, rather than work for charities, get jobs in finance and donate their income." In other words, does a person do more good volunteering for Teach for America for two years after graduation or working at Goldman Sachs and donating 85% of their income to a charity with a proven record of saving lives? At TFA, a young person may impact many lives, and the ripple effect of that work cannot be quantified. But, according to Give Well, about $7 protects a child from malaria. In 2021, Give Well directed funding to the Malaria Consortium to support this program at an estimated average cost-effectiveness of $5,000 per life saved.

Because I'm paywalled, I couldn't read the DBR article linked by Mr. Byrne. But here is a chart from earlier this year reporting the associate salary pay scale. If you're a 4th-year associate making around $300,000 a year and donate "only" 50% of your gross income, you can save 30 lives in one year!

Here's another example. Vitamin A deficiency leaves children vulnerable to infections and can lead to death. Give Well attributes over 200,000 deaths to Vitamin A deficiency each year, and that about $1 will deliver a vitamin A supplement to a child in need. In 2021, the group directed funding to Helen Keller International to support this program at an estimated average cost-effectiveness of $3,500 per life saved. That effective altruist 4th year at Big Law could save over 42 lives. 

This approach has critics, of course, most notably the philosopher Amia Srinivasan. She wrote: "Yet there is no principled reason why effective altruists should endorse the worldview of the benevolent capitalist. And although [E.A.] focuses on health as a proxy for goodness, there is no principled reason, [] why effective altruism couldn’t also plug values like justice, dignity or self-determination into its algorithms. Effective altruism has so far been a rather homogenous movement of middle-class white men fighting poverty through largely conventional means, but it is at least in theory a broad church." But she conceded the basic power of the movement’s rhetoric: “I’m not saying it doesn’t work. Halfway through reading the book I set up a regular donation to GiveDirectly,” one of GiveWell’s top recommended charities.

Srinivasan and other critics have valid points. E.A. tends to focus on single actions and their proximate consequences and, more specifically, on simple interventions that reduce suffering in the short term and largely neglects coordinated sets of actions directed at changing social structures that reliably cause suffering. According to critics, this neglect is politically dangerous because it obscures the structural roots of global misery, thereby weakening existing political mechanisms for positive social change and perhaps contributing to its reproduction.

At the very least, the E.A. movement has generated a significant volume of useful information to help us make decisions as to how we spend our time and our money to "do good."

Trump updates

 1. Magistrate Judge Reinhart orders the search warrant affidavit unsealed by noon tomorrow but with the redactions proposed by the government.  Here's the order.

2.  Judge Cannon has rightfully ordered the Trump lawyers to give her some authority on what they are proposing.  That's due tomorrow.  Perhaps I was wrong to say she was the best draw for him.  We shall see.  Here's the order.

New Firms in Town Gobbling up Associates

 

By John R. Byrne

A bunch of big national firms have recently placed their stakes in the Miami legal market. And now they're gobbling up legal talent. The DBR covers it here.

Kirkland & Ellis, Sidley Austin, Winston & Strawn, and Quinn Emanuel will bring in summer associates in 2023. King & Spalding, which also launched a Miami office, may as well.

There's also an arms race of sorts for lateral associates. Collectively, the firms have pulled in over a dozen associates from local firms, with the numbers set to grow. Looks like there will be more lawyer movement afoot in the coming months.

Trump files lawsuit seeking special master over search at Mar-a-lago

Trump filed this lawsuit seeking a special master to oversee the search of Mar-a-lago.  But he didn't file a motion in the Reinhart case, which is strange.  The lawsuit was filed in West Palm Beach, but was randomly assigned to Judge Aileen Cannon,* the best draw that Trump could have hoped for.  It will be interesting to see whether it is reassigned or referred to Magistrate Judge Reinhart. (The Trump lawyers did not check the box on the civil cover sheet indicating that there was a related case.) 

The case didn't get off to the best of starts for the Trump lawyers as their motions for pro hac were denied for not following the local rules.

* I deleted an earlier post suggesting that the former President was forum shopping by filing in Ft. Pierce.  I was wrong as the case was filed (correctly) in West Palm Beach and just randomly assigned to Judge Cannon.  My apologies.

"Bruce Reinhart unsealed."

 That's the title of this CBS deep dive into Magistrate Judge Reinhart's background since he is presiding over the Trump search warrant litigation.  It's a very positive article for Judge Reinhart.  Here's the start by Arden Farhi and Robert Legare:

The third week of March 2018 was a momentous one for the Reinhart-Bell family. 

That Monday, Florida's then-Governor Rick Scott appointed federal prosecutor Carolyn Bell to serve as a state circuit court judge.

Days later, Bell's husband — Bruce Reinhart — was sworn in as a federal magistrate judge in South Florida, beating out 63 other candidates for the job.

Quite a week, but nothing compared to the week they just had — and perhaps the ones that lie ahead. 

Since Reinhart approved an FBI warrant that authorized a search of former President Donald Trump's Mar-a-Lago home, he and his family have become the target of violent threats from right-wing internet trolls seeking to discredit and intimidate the judge. 

His address and personal information were posted online. "I see a rope around his neck," wrote one poster on a pro-Trump site. Anti-Semitic threats followed.

"This is truly an awful situation and completely undeserved with someone who is just trying to do his job. And to be personally attacked is just absolutely wrong," said Michelle Suskauer, a family friend of more than 15 years.

Late last week, Reinhart unsealed the search warrant and on Thursday, heard arguments from media organizations and the Justice Department, battling over whether to release the warrant's underlying affidavit. That document explains the government's reason for seeking the search warrant and currently may be the nation's most politically charged pieces of paper.

Reinhart said he was open to unsealing at least some portions of the affidavit and asked the government for suggested redactions.

In the courtroom, a lawyer for media organizations seeking to make the affidavit public told Reinhart, "I get paid to be nosy sometimes." 

"I get paid to say 'no' sometimes," Reinhart quipped. 

Friends and acquaintances say that sort of congenial, yet quick retort is vintage Reinhart. Those who have spoken with him since last week told CBS News he remains unfazed by the political vortex swirling around him and the threats he now faces.

 

 

Judge Reinhart orders government to prepare redactions for search warrant affidavit

 The Miami Herald covers the ruling here:

A federal judge in Florida ordered Thursday that the Justice Department propose redactions to a key document supporting the Aug. 8 search of former President Donald Trump’s Mar-a-Lago home, opening the door to its disclosure to the public. Magistrate Judge Bruce Reinhart in the Southern District of Florida told the government to propose redactions to the affidavit — which established probable cause that crimes were committed, leading to the search — by noon on Thursday, and said that he is leaning toward unsealing the document with appropriate redactions. “I’m inclined not to seal the entire affidavit,” The judge said.

The Justice Department had asked the court on Monday to keep the affidavit under seal in its entirety, warning that its disclosure could cause “significant and irreparable damage” to its criminal probe. “If disclosed, the affidavit would serve as a roadmap to the government’s ongoing investigation, providing specific details about its direction and likely course, in a manner that is highly likely to compromise future investigative steps,” the government argued. “This investigation implicates highly classified materials.”

Judge Newsom, concurring, asks whether the categorial approach has "jumped the shark."

 

Here's the opinion.  For those of you who don't get the reference, here's a link the wiki page on it.

Gotta love it.

When will the actual search warrant affidavit get unsealed?

 That's really the most important document, by far.  It has the justification -- or the explanation of probable cause -- for the search.  

Meantime, the insane attacks on Magistrate Judge Reinhart have led to renewed calls for extra security for judges.  From Reuters:

The federal judiciary is renewing calls for Congress to pass a stalled bill aimed at bolstering judges' security after the magistrate judge who signed off on a warrant authorizing an FBI search of Donald Trump's Florida home became the subject of online threats.

The chair of a key judiciary security committee and the president of the Federal Judges Association in separate remarks on Thursday pushed for the bill after U.S. Magistrate Judge Bruce Reinhart became the target of a wave of violent, anti-Semitic threats.

***

That legislation, the Daniel Anderl Judicial Security and Privacy Act, was named for the deceased son of U.S. District Judge Esther Salas, who was killed in an attack at the New Jersey judge's home in July 2020 by a disgruntled lawyer.

That bill would allow federal judges to redact personal information displayed on government websites and bar people and businesses from publishing such information online if they have made a written request not to do so.

The Senate Judiciary Committee advanced the bill on a bipartisan 22-0 vote in December, but attempts to quickly pass it unanimously in the Senate have been blocked by Republican Senator Rand Paul of Kentucky, who says it should also cover members of Congress.

U.S. Circuit Judge Richard Clifton, the president of the Federal Judges Association, in an interview said with time running out in the current Congress to pass the bill, judges are being encouraged to contact their local lawmakers.

"The news of the last few days underscores the concern that we have," said Clifton, who former Republican President George W. Bush appointed to the 9th U.S. Circuit Court of Appeals.

Judge Reinhart Orders Unsealing of Search Warrant and attachments

 By John R. Byrne

 Hot off the presses. Here's the order. The inventory of the seized items will remain redacted. Here are the unsealed materials.

Here's a write up from the Sun Sentinel. But some notable items described in the property receipt include an "Executive Grant of Clemency re: Roger Jason Stone, Jr.,""Info re: President of France," and numerous entries for "Miscellaneous Top Secret Documents."

Motion to unseal search warrant

 Here's the motion, signed by the U.S. Attorney (Tony Gonzalez) and Jay Bratt, the Chief of the Counterintelligence section.

Just filed in the Mar-a-Lago warrant case: “UNITED STATES’ MOTION TO UNSEAL LIMITED WARRANT MATERIALS” pic.twitter.com/YK5DEkVwjc

— Andrew Solender (@AndrewSolender) August 11, 2022

NACDL hosting its annual meeting in West Palm Beach

 And it's been renamed the Albert Krieger annual meeting, which is very cool.

Other news:

1.  Trump takes 5.  Get ready for all of the bad 5th Amendment takes.

2. If the government moves to dismiss 4 counts so that the defendant can plead guilty to the remaining count, can the district court deny that motion?  Nope, says the 8th Circuit (but it can reject the plea to the remaining count).  From the opinion (h/t Sentencing Law & Policy):

The district court had strong views about what charges fit Tiffany Bernard’s crimes. It rejected both her plea agreement and a motion by the government to dismiss four of the five counts in the indictment. The latter ruling went too far, which is why we reverse and remand with instructions to grant the government’s motion....

The parties frame the issue around Federal Rule of Criminal Procedure 48(a), which permits the government, “with leave of [the] court,” to dismiss “an indictment, information, or complaint.”...

Even if the government had to get “leave of [the] court,” it is no blank check for second-guessing charging decisions. To the contrary, “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding . . . whether to dismiss a proceeding once brought.” United States v. Jacobo-Zavala, 241 F.3d 1009, 1012 (8th Cir. 2001) (citation omitted). For that reason, although the district court has some discretion in this area, it “is sharply limited by the separation of powers balance inherent in Rule 48(a).” Id. at 1011–12....

For a dismissal to be “clearly contrary to manifest public interest,” the prosecutor must have had an illegitimate motive rising to the level of bad faith. See United States v. Rush, 240 F.3d 729, 730–31 (8th Cir. 2001) (per curiam) (quotation marks omitted); United States v. Smith, 55 F.3d 157, 159 (4th Cir. 1995).  Examples include the “acceptance of a bribe, personal dislike of the victim, and dissatisfaction with the jury impaneled.”  Smith, 55 F.3d at 159. Anything less is not enough. See In re United States, 345 F.3d 450, 453 (7th Cir. 2003) (explaining that district courts do not get to “play[] U.S. Attorney”).

Here, the district court merely “disagreed with the prosecutor’s assessment of what penalty the defendant[] ought to face.” Jacobo-Zavala, 241 F.3d at 1014. Rather than addressing whether the prosecutor acted in bad faith, the court just listed the reasons it thought Bernard was getting off too easy: she was “very dangerous” and “by far the most culpable”; Alaniz suffered life-threatening injuries; and a “conviction for robbery alone strip[ped] the [c]ourt of any ability to sentence [her] to a just punishment.”  These may be important factors to consider at sentencing, but they are not reasons to interfere with the government’s charging decisions, no matter how much the court may disagree with them.

Who signed the Trump Mar-a-Lago warrant?

The Miami Herald and numerous other outlets are saying it was Magistrate Judge Reinhart.  They point to docket entries showing sealed warrants signed on 8/5 by Reinhart.  Perhaps.  

One thing that always has bothered me about search warrants is that they should not remained sealed once they are executed unless there is a real law-enforcement need to keep them sealed.  And they should almost always be made available to the party affected.  But I bet Trump's legal team hasn't even seen the actual affidavit in support of the warrant yet, which is bananas.

The warrant will likely remained sealed until (if?) an indictment is brought.  If there is no indictment, the warrant may never become public.

You Get What You Pay For

BY MICHAEL CARUSO

I assume everyone has read an opinion or order and wondered, "where did that come from?" For example, Judge Ed Carnes has quoted Bob Dyan on occasion, see, e.g., Wright v. Farouk Sys., Inc., 701 F.3d 907, 908 (11th Cir. 2012)(quoting "Not Dark Yet"), and Judge Rosenbaum has referred to a classic Star Trek scene. See McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1158 (11th Cir. 2017)(Rosenbaum, J., dissenting, unfortunately)(referencing the Kobayashi Maru). While some decry the use of pop culture references in judicial opinions, I enjoy them for the most part. And in my opinion, Judge Zloch wins this competition by using a line from Hilary Mantel's great novel "Bring Up The Bodies" in the context of a lawyer's ethical obligation not to present perjured testimony: “We are lawyers. We want the truth little by little and only those parts of it we can use.” 

But a recent Washington Post article provides empirical evidence of a very alarming trend in judicial opinion writing. A new paper from MIT and Maynooth University in Ireland finds that judges there routinely rely on Wikipedia articles not just for background information but for core legal reasoning and specific language they use in their decisions. In our country, the New York Times identified this trend years ago.

What? Yes, I know that once in a while, you get shown the light in the strangest of places, but Wikipedia is not a reliable source for information about legal analysis. As a user-generated source, an entry can be edited by anyone at any time and may be a work in progress, simply incorrect, or an act of vandalism.

We should be better. Many colleges and universities, as well as public and private secondary schools, have policies that prohibit students from using Wikipedia as their source for doing research papers, essays, or equivalent assignments. Perhaps The Judicial Conference of the United States should do the same for judges. After all, judicial opinions and orders are not 4th-grade book reports.

   

Sentencing Commissioners confirmed…

 …finally.

Here they are:

Judge Carlton W. Reeves: Nominee for Commissioner and Chair of the United States Sentencing Commission

Judge Carlton W. Reeves has served as a United States District Court Judge for the Southern District of Mississippi since 2010....

Laura Mate: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Laura Mate has served as the Director of Sentencing Resource Counsel, a project of the Federal Public and Community Defenders in the Office of the Federal Public Defender for the District of Arizona, since 2021 and from 2010 to 2021 was a member of Sentencing Resource Counsel....

Claire McCusker Murray: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Claire McCusker Murray served as the Principal Deputy Associate Attorney General of the United States Department of Justice from 2019 to 2021....

Judge Luis Felipe Restrepo: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Judge Luis Felipe Restrepo has served as a United States Court of Appeals Judge for the Third Circuit since 2016....

Judge Claria Horn Boom: Nominee for Commissioner of the United States Sentencing Commission

Judge Claria Horn Boom has served as a United States District Court Judge for the Eastern and Western Districts of Kentucky since 2018....

Judge John Gleeson: Nominee for Commissioner of the United States Sentencing Commission

Judge John Gleeson is a partner at Debevoise and Plimpton LLP in New York, where he has practiced since 2016....

Candice C. Wong: Nominee for Commissioner of the United States Sentencing Commission

Candice C. Wong serves as an Assistant United States Attorney and Chief of the Violence Reduction and Trafficking Offenses Section in the United States Attorney’s Office for the District of Columbia....

August in Miami

It's the last stretch of summer.  

And elections are coming up.

It's brings up the age old questions about whether judges should be elected or appointed. 

There's really no good answer.

But when you look at some of the challengers to our good judges, it looks like appointment may be the better option.

Check out the Captain's post about the challenger to a really good judge -- Lody Jean. 

Hard to imagine that the challenger will win, but in a judicial race, anything is possible.

On the other end of the spectrum, Justice Jackson is gearing up for her first term in October.

Here's Empirical SCOTUS with a preview:

The overall picture from these data conform more to the picture painted by the JCS Scores than to that painted by the campaign finance scores.  The picture is of a liberal judge, not as liberal as Justice Sotomayor, and more likely a moderate with a similar ideological position to that of Justice Kagan.  Even though we lack complete information on which to formulate accurate predictions of how future justices will vote when on the Court, this more refined way of viewing Brown Jackson’s lower court record should give a more complete picture than other available methods.

 

Anyway, we have a few weeks left until school starts. Let's enjoy the last few weeks of summer.