Donald Trump and his lawyers have tried to repeatedly delay every investigation involving him. It does stand to reason that they have embraced this tactic, as when they have actually been in a court with a judge who isn’t in his pocket, he has lost, sometimes in an embarrassing fashion.
That trend continued this week.
First, the Supreme Court refused to hear his final appeal concerning his taxes and the House Ways and Means Committee. Trump now has to turn over those taxes to the committee. There is no other choice or option.
In another case, the 11th Circuit Court of Appeals shut down Team Trump as they try to retain the “Special Master” that Judge Cannon, a recent Trump appointee who initially granted that the Special Master could review and exclude documents at their will. She did it with a bizarre ruling that has gotten shredded by every other court and expert after a hearing that unusually blacked out the media from the courtroom.
Just about every legal expert expects Cannon’s court order to be revoked. Anyone who has listened to the audio recording of the hearing, even with no legal expertise, can hear how spurious his lawyer’s arguments are.
For those who didn’t, here are some highlights from LawfareBlog.com:
The logic of that panel decision requires the dismissal of the entire case every bit as much as it required the partial stay the panel then granted. And everyone in the courtroom today knows it. So as the judges settle into their blue-leather chairs behind the bench, there’s an air of ineluctability to the day’s proceedings.
Chief Judge Pryor kicks things off by inviting the Justice Department to argue the merits of its appeal. At this, Sopan Joshi, an assistant solicitor general, hurries to the lectern. His colleagues–Jay Bratt, Julie Edelstein, Sophia Brill, and Juan Antonio Gonzalez–look on from their seats at a table on the left side of the courtroom.
Calling the district court’s decision an “extraordinary judicial intrusion,” Joshi announces that Cannon’s order to enjoin the Justice Department from reviewing materials seized at Mar-a-Lago should be reversed for three reasons. First, he argues, Cannon should not have exercised the court’s “equitable” or “anomalous” jurisdiction to entertain Trump’s request in the first place. The controlling case, Richey v. Smith, articulated a four-factor test for exercising equitable jurisdiction in challenges to searches pre-indictment. As the panel already held in the earlier case, Trump met none of them.
Second, he contends, Trump failed to prove one of the required elements a plaintiff must show to receive an injunction: likelihood of success on the merits.
Finally, Joshi urges, Trump has not and cannot demonstrate another necessary element for injunctive relief: that he will suffer “irreparable injury” in absence of the injunction.
As Joshi turns to expound on the jurisdictional argument, Pryor interjects: “Is there any precedent for exercising equitable jurisdiction where there is no showing that the seizure was unlawful?”
Joshi, answering in the negative, asserts that the Justice Department has not been able to identify such a case. He stresses that the exercise of anomalous jurisdiction is supposed to be “rare” and “extraordinary.” That is why, he says, Eleventh Circuit precedent has cabined its exercise to circumstances in which the government’s seizure of property displays “callous disregard” for the plaintiff’s constitutional rights.
At this, Judge Brasher pipes up to ask whether a plaintiff must always show callous disregard before a court can exercise its equitable jurisdiction. Joshi replies that the court’s precedent has suggested as much in United States v. Chapman, in which the court noted that “callous disregard” is an “indispensable” factor in the Richey analysis. Still, he continues, the panel doesn’t need to reach that question here, because Trump has failed to prove any of the factors described by the court in Richey.
Now Judge Grant chimes in to ask about another factor the court has considered when weighing the exercise of equitable jurisdiction: whether the plaintiff has an adequate remedy at law to redress his grievance. She wants Joshi to explain the remedies available to Trump beyond the injunction. In turn, Joshi says that Trump, if indicted, could later seek a motion to suppress evidence if he is concerned about the lawfulness of the search or seizures at Mar-a-Lago.
Next comes an exchange between Pryor and Joshi about what the Eleventh Circuit should do, procedurally, if it sides with the Justice Department. While the Justice Department asked the court to reverse and remand to the district court with instructions to dismiss the case, Pryor thinks the appropriate procedural step would be to vacate the injunction. Joshi, who I suspect realizes all this talk about “reversing” and “vacating” the order bodes very well for him, ultimately tells Pryor that he’s not going to fight him too hard on the procedural minutiae.
Thanking the court, Joshi treads away from the lectern as Trump’s counsel, James Trusty, rises from the table where he has been sitting alongside Lindsey Halligan and Evan Corcoran. Chris Kise, the former Florida solicitor general whom Trump reportedly shelled out $3 million to hire, remains conspicuously absent.
When he reaches the lectern, Trusty starts by urging the court to look at the broader “context” of the case. That context, he stresses, is necessary because the government’s briefs fail to address the “thoughtfulness” of Cannon’s order below.
Before Trusty can explain exactly how Cannon’s order could be described as “thoughtful” or whether “thoughtful” is synonymous with “correct,” however, Pryor interjects: “Can you point to a single decision where a court exercised this kind of jurisdiction pre-indictment, without showing that the seizure was unlawful?” It’s the same question he asked Joshi only minutes earlier, but Pryor practically hisses as he points it at Trusty.
Trusty admits that there is no case law directly on point, but presses the court to consider that there has also never been an authorized “raid” on a former president’s home.
At Trusty’s mention of a “raid,” Grant pounces. “Do you think ‘raid’ is the proper term for execution of a warrant?” she asks, tilting her head to the side as she peers down from the bench. Trusty, backpedaling, apologizes for using a “loaded” term to describe the FBI search at Mar-a-Lago. It’s a conservative panel, but the former president’s lawyer is not on Fox News.
It’s at this point in the hearing that Pryor asks what is really the key question: “So what are we even doing here?” He observes that an unlawful seizure is the basis for the exercise of equitable jurisdiction. “But you haven’t established that,” he tells Trusty. In reply, Trusty insists that Trump’s legal team is “in the process” of establishing the unlawfulness of the seizure.
If viewing is more your style, Lawrence O’Donnell gave a good breakdown of the happenings: