Judge Cannon orders appointment of Special Master

You can read the whole order here.

Random thoughts:

She asks the parties for recommendations on who the special master should be.  That will be an interesting list.

DOJ will surely appeal and ask for a stay.  Will they get it?

Are we now going to see a slew of folks filing lawsuits asking for special masters? 

 

All rise for Judge Michael Hanzman

 A true mensch and a great judge.  The New York Times has a wonderful piece about Judge Michael Hanzman's handling of the Surfside case:

Each day, before the unusual hearings unfolded inside Judge Michael A. Hanzman’s Miami courtroom this summer, the judge’s aides would stock the judge’s bench, the lawyers’ tables and the witness stand with boxes of tissues. At some point, they knew, almost everyone would cry, and each excruciating presentation would end with Judge Hanzman offering people hugs.

The hearings in the civil case over the deadly collapse last year of a beachfront condominium tower in Surfside, Fla., gave survivors and victims’ families a chance to seek financial compensation for their enormous losses. But those involved in the proceedings also describe them as far more meaningful — something akin to catharsis — which they credit to the extraordinary handling of a case born out of calamity.

After five weeks of lengthy and emotional hearings, the court issued letters in late August, informing survivors and victims’ families of how much they would receive in damages from a settlement of more than $1 billion with insurance companies, the developers of an adjacent building and other defendants. Individual awards ranged from $50,000 for some post-traumatic stress disorder claims to more than $30 million for some wrongful death claims, Judge Hanzman said in an interview this week.

“I don’t think I have shed as many tears in my 61 years as much as I have throughout the last five weeks,” he said.

***

His first unorthodox move was to persuade the surviving members of the Champlain Towers South condo association board to appoint Michael I. Goldberg, a lawyer, as an independent party known as a receiver to handle residents’ lawsuits. That allowed the judge to corral all of the complaints and eventually have them combined into one big lawsuit. Otherwise, there would probably have been dozens of separate legal actions.

Judge Hanzman chose well-known law firms to represent the plaintiffs, though the firms knew up front that there might not be enough money recovered to pay them. Some firms turned him down, the judge said.

The legal process was not without some friction. Even before all of the victims’ remains had been found in the rubble, the judge decided that the land where Champlain Towers South had stood would be sold, to ensure the biggest possible payout. Some families wanted a memorial built there instead of selling the land for redevelopment, but the judge concluded that a fund made up of insurance proceeds alone would fall far short of adequate compensation for the victims. The nearly two-acre property was sold to a Dubai-based developer in August for $120 million.

Next, Judge Hanzman dealt with conflicts between victims’ families, who had lost loved ones, and survivors, who had lost property. He persuaded Bruce W. Greer, a renowned mediator, to try to resolve their conflicts over how much money each group deserved to receive. In February, the condo unit owners agreed to split $83 million from the land sale and from Champlain Towers South’s insurers, a total that later went up to $96 million and paid them for the appraised value of their units.

Then Mr. Greer negotiated a second settlement: more than $1 billion to be shared among families who lost loved ones in the condo collapse. That sum came from the developers, engineering consultants and security companies whom the law firms had identified as possibly at fault for the disaster, as well as their insurers. Federal investigators have still not determined the cause of the collapse.

Finally, Judge Hanzman and a retired judge, Jonathan T. Colby, a friend of 30 years, became the arbiters of how much each victim’s lost earnings — and their family’s pain and suffering — were worth.

 We need more judges like Judge Hanzman in both state and federal court.  Here's hoping we can steal him over to the feds...

Judge Cannon's hearing (UPDATE)

 To the dismay of many, it was reported that Judge Cannon had the wifi turned off in the courthouse and prohibited reporters from tweeting or otherwise reporting on the hearing from court. There was also no call-in number so members of the public and press could listen in on the hearing.  So all of the reporting came after court was concluded.  What is this, the dark ages? 

 UPDATE -- I've been told that the wifi was not turned off and instead it was just overloaded with the number of users; I've also been told that it was not Judge Cannon's new rule to prohibit reporting from inside the courtroom -- she just reminded everyone of the local rule 77.1.

Anyway, here is the NY Times coverage of the hearing:

A federal judge signaled on Thursday that she remained open to granting former President Donald J. Trump’s request to appoint an independent arbiter to go through documents the F.B.I. seized from him last month, but stopped short of making a final decision.

After a nearly two-hour hearing, the judge, Aileen M. Cannon of the Federal District Court for the Southern District of Florida, reserved judgment on the question of whether to appoint a so-called special master in the case, saying she would issue a written order “in due course.”

Notably, Judge Cannon did not direct the F.B.I. to stop working with the files, which the Justice Department has said have already undergone a preliminary review by law enforcement officials.

Judge Cannon, who was appointed by Mr. Trump in 2020, also indicated that she would unseal a more detailed list of the documents the F.B.I. took during its Aug. 8 search of Mar-a-Lago, Mr. Trump’s private club and residence in Florida. She had earlier ordered the Justice Department to provide the list to Mr. Trump’s legal team at its request. It was not clear when it would become public.

During the hearing, Judge Cannon pressed the government to explain what harm could come from appointing a special master.

Jay I. Bratt, the head of the Justice Department’s counterintelligence section, told her that a special master could slow down an assessment of the risk and damage to national security being conducted by the Office of the Director of National Intelligence — as well as an assessment of whether the seized documents contain the sort of national security secrets whose unauthorized retention is a crime under the Espionage Act.

“We are dealing with over 300 records here” that had classification markings on them, Mr. Bratt said. “That process has begun. That process needs to continue.”

But Judge Cannon appeared to suggest that if she did appoint a special master, she would do so in a way that would not hinder the security risk assessment.

The judge also left unclear whether she would limit the scope of any special master’s work to setting aside a small number of documents that may be subject to attorney-client privilege.

 

"President Trump's" reply

You can read it here.

Thank goodness the lawyers start with explaining to the reader in the first line that references to "President Trump" mean "President Donald J. Trump."

Sorry, it's a pet peeve of mine.  

Anyway, Judge Cannon will be holding a hearing this afternoon in West Palm Beach.  It will be interesting to see if she sticks to her guns and appoints a special master.  And if so, who will the judge appoint.  

More to follow.

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."