11th Circuit sides with DOJ over Trump

Here's the per curiam opinion, which reverses Judge Cannon and grants the requested stay.

The panel was Rosembaum, Grant, Brasher.

It starts this way:

Following the execution of a search warrant at the residence of Plaintiff-Appellee, former President Donald J.Trump, Plaintiff moved for the appointment of a special master to review the doc­uments that Defendant-Appellant United States of America seized. The district court granted that motion in substantial part. Now, the United States moves for a partial stay of the district court's or­der as it relates to the roughly one-hundred documents bearing classification markings. We decide only the narrow question pre­sented: whether the United States has established that it is entitled to a stay of the district court's order, to the extent that it(l)requires the government to submit for the special master's review the doc­uments with classification markings and (2) enjoins the United States from using that subset of documents in a criminal investiga­tion. We conclude that it has.

We stress the limited nature of our review: this matter comes to us on a motion for a partial stay pending appeal. We can­ not (and do not) decide the merits of this case. We decide only the traditional equitable considerations, including whether the United States has shown a substantial likelihood of prevailing on the mer­ its, the harm each party might suffer from a stay, and where the public interest lies.

For the reasons we explain below, we grant the United States's motion for a partial stay pending appeal.

All Trump, all the time

Our current U.S. Attorney, Tony Gonzalez, appeared before the special master in New York, along with a number of other DOJ lawyers.  When is the last time a U.S. Attorney appeared in a different district?  Interesting.  

In any event, the special master appeared pretty skeptical about Trump's claims... saying at one point you can't have your cake and eat it.  Here's some coverage from the Hill:

In a Tuesday conference, Dearie appeared unsatisfied with the response, indicating that further explanation would be necessary only if criminal charges were filed.

He said if Trump’s lawyers will not actually assert that the records have been declassified and the Justice Department instead makes an acceptable case that they remain classified, then “as far as I’m concerned, that’s the end of it.”

James Trusty, a lawyer for Trump, said the legal team was “not in a position” to say whether the documents were declassified without first reviewing them, to which Dearie responded, “You did bring a lawsuit.”

Trump’s lawyers have failed to assert in court that Trump declassified the documents even as they seek to cast doubt on whether the documents are still classified.

“You can’t have your cake and eat it,” Dearie said.

Dearie also seemed to cast doubt on whether Trump’s legal team would be able to review all the classified documents, noting that some of the records are restricted to those with a need to know.

Trump also filed his brief in the 11th Circuit.  Here ya go.

 

 

Dolphins!

What a game!  It just shows that you're never out of it and to keep fighting.

On that note, DOJ is in the 11th Circuit fighting to get a stay of Judge Cannon's order.  Its brief is here.  Trump has to respond by Wednesday.

And Philip Esformes is still fighting, also now in the 11th Circuit.  His oral argument was Friday.  Although the panel expressed dismay at the prosecutor's handling of the case, it also expressed doubt about doing anything about it.  Unfortunately, it cited my old case -- United States v. Shaygan.  From Law360:

During oral arguments in Miami, Esformes' counsel, James C. Martin of Reed Smith LLP, insisted that reversal is warranted because the trial court should have disqualified the prosecution team for misconduct, including invading attorney-client and work product privilege in a raid on one of Esformes' facilities and in secret recordings of his conversations.

But U.S. Circuit Judge William H. Pryor Jr. said the argument "seems to be foreclosed by a long line of precedent."

The Eleventh Circuit's chief judge said the appeals court has held that disqualification is not required for intrusion into attorney-client privilege absent a showing of actual prejudice, but in his initial brief, Esformes presented an argument of "structural error," based on prosecutors allegedly injecting their self-interests into the proceedings over his pretrial motion for dismissal or disqualification.

"You haven't really made a case for actual prejudice. You have to make the argument for the first time in the blue brief," Judge Pryor added, referring to the required color for the cover sheet of an appellant's initial brief.

Martin argued that the threat of prejudice has also been held to be sufficient grounds for dismissal. He pointed to a friend of the court brief that several former U.S. attorneys general, including Edwin Meese, John Ashcroft and Alberto Gonzalez, filed in support of Esformes, which Martin said stated that such a threat "sticks to the case" and "taints the entire prosecution."

U.S. Circuit Judge Jill Pryor said that argument would seem to undermine the need to show actual prejudice in any case involving a privilege intrusion.

What's different here, Martin responded, is the level of intrusion.

"It's unprecedented," he said.

Judge William Pryor expressed agreement about that but noted the district court made a finding there was no prejudice and repeated that he did not see where Esformes' side had made an argument about that.

The chief judge also expressed doubts about Martin's argument that prosecutors improperly injected their personal interests by being represented individually by outside counsel and raising arguments about their career prospects during the disqualification motion proceedings.

"Of course they have a right to counsel, don't they?" he asked.

The judge cited the Eleventh Circuit's 2011 decision in USA v. Shaygan , in which the court found a district court violated two prosecutors' constitutional due process rights by sanctioning them without providing notice of charges of misconduct and an opportunity to be heard.

Judge Cannon issues two new orders, both in favor of Trump

1.  She appointed District Judge Raymond Dearie to be the Special Master.

2.  She denied DOJ's motion for partial stay.

DOJ will now head to the 11th Circuit.

Politico covers the orders here:

While Cannon’s timeline appears to extend Dearie’s review well past the November midterm elections, she did instruct him “to prioritize review of the approximately 100 documents marked as classified (and papers physically attached thereto),” meaning it’s possible prosecutors could regain access to some or all of those materials before they get another look at the other records seized in the FBI’s Aug. 8 search of the Trump’s Florida estate.

Last week, the Justice Department appealed Cannon’s order to appoint a special master and indicated it would seek relief from the 11th U.S. Circuit Court of Appeals if she did not agree to delay aspects of her ruling by Thursday night. .

The ruling is another setback for federal prosecutors, who have expressed alarm at the extraordinarily sensitive records they found in boxes intermingled with Trump’s personal items in his Mar-a-Lago storage room, as well as some recovered from his office. The Justice Department has warned that Cannon’s Sept. 5 order — which enjoined the department from furthering its criminal review of the documents seized by FBI agents — had also disrupted a parallel risk assessment of those documents by the intelligence community. Though Cannon allowed that review to continue, the Justice Department emphasized that her order had sown confusion within the executive branch.

In one nod to the Justice Department, Cannon ordered Trump to shoulder the full cost of Dearie’s review, as well as that for any staff or associates he hires.

Congrats to Markenzy Lapointe

President Biden just nominated him to be the U.S. Attorney in the Southern District of Florida.

He's a really good guy and well liked by just about everyone.

Folks will discuss the timing because of the on-going litigation regarding the Mar-a-Lago search.  Currently all of the pleadings are being signed by Tony Gonzalez, who was the first assistant prosecutor under Ariana Fajardo Orshan, the previous U.S. Attorney who was selected by Trump.  Once Lapointe is confirmed, he will be the local prosecutor in charge of the case.  But, of course, the case is being overseen by the DOJ folks in D.C.

In any event, Lapointe isn't a political guy.  He's right down the middle and is going to do what's right.

Be Kind, It's Science!

By Michael Caruso I wanted to offer a brief supplement to Kate And David's wonderful DBR piece posted below. We've all seen the "Practice Random Acts of Kindness" bumper sticker. Why do we have to be reminded to be kind, and why is kindness in such short supply? An expert has "found that kindness can be a real hard sell. People desire kindness yet often feel inconvenienced by the thought of being kind."

New findings published in the Journal of Experimental Psychology, however, demonstrate the power of even small acts of kindness. Researchers found that people who perform a random act of kindness tend to underestimate how much the recipient will appreciate it. And they believe that miscalculation could hold many of us back from doing nice things for others more often.

Not only are small acts of kindness meaningful to the recipients, but they also are beneficial to the givers. Other studies suggest that affiliative behavior may be an important component of coping with stress and indicate that engaging in prosocial behavior might be an effective strategy for reducing the impact of stress on emotional functioning. Sounds like a win-win. 

We should all remember that "a little good goes an unexpectedly long way."

 

"Ladies and gentlemen, the government's case is a grotesque distortion of the truth."

 That's how Marc Mukasay started his opening in the SDNY's Nikola trial.  Nikola's founder Trevor Milton is on trial and accused of defrauding investors. I love following good lawyers in trial and Mukasey lights it up in opening.  Check out this twitter feed of what he did:

 

Mukasey: The truck rolled down the hill? It was a promotional video before Nikola went public. Special effects are not a Federal crime, as far as I know. Let me tell you: Peter Hicks is a man who wants money. He sold the ranch, and wanted more

— Inner City Press (@innercitypress) September 13, 2022

"Judges: Be Kind and Remember Your Roots"

 That's the title of a column that my middle daughter, Kate Markus, and I wrote in the Daily Business Review.  Here's the intro:

As a high school student, I deal with seemingly arbitrary scheduling decisions from teachers all the time. Especially in this age of technology, teachers can add assignments randomly throughout the day and night by sending a message to our phones, and they love to add assignments with crazy short deadlines on the day after a big event like Halloween, only to take weeks to grade them.

The same thing happens to lawyers with electronic notices. In the old days, most judges worked with the litigants to find a time that worked with everyone’s schedule for a hearing or a trial. But now, there are instances when lawyers are summarily notified by email that something has been scheduled, sometimes with only a day’s notice. And then the waiting game starts for the order.

As challenging as the scheduling may be for us high school students, the stakes are significantly higher for litigants subject to the dictates of judges who are not always sympathetic to personal family situations including the birth of children.

This happened just recently, when a lawyer asked for an upcoming civil trial to be continued due to the pending birth of his long-awaited daughter, who had been conceived after fertility treatments following a series of difficulties. A Miami-Dade judge refused to continue the case, even though it had not previously been continued and all the lawyers agreed to the continuance. The judge told the lawyer he would be sanctioned if he asked again for a continuance. Only after the story of his ruling broke in the news did the judge relent and grant the continuance.

My own birth story is another example. My dad (and co-author) was scheduled for a complicated and lengthy multi-defendant trial in Savannah, Georgia. The judge set the trial for— you guessed it—the very day my mom was scheduled to deliver me. When my dad asked the judge to push the start date back just a few days so that he could be there for my birth, the judge refused, actually telling my dad he could fly down for “half a day” to attend the birth and then fly back for court the following day. My parents solved this problem by moving up the date of my delivery so that my dad could be there for my birth before leaving town for six weeks.