What to make of the appeals court ruling in the Trump top-secret documents case | Column
The 11th Circuit Court of Appeals, the court just below the U.S. Supreme Court, issued a ruling last week that ended former President Donald Trump’s dalliance with the potentially protective buffer of a special master –– an arrangement made possible by a compliant federal district judge in South Florida.
The district judge had prevented the Department of Justice from using large categories of seized materials in its investigation until a special master evaluated thousands of documents and made recommendations to her. She then would need to review the special master’s recommendations in order to rule on the materials. Both reviews needed to be completed before the government could use (or even see some) the disputed materials in its ongoing investigation. Not surprisingly, the rabbit warren collapsed on itself.
In the Mar-a-Lago case, the 11th Circuit (which covers Florida) applied a longstanding legal test to evaluate whether a federal court has jurisdiction to hear disputes in pre-charge criminal matters. The court dispensed with the appeal in concise, pointed language. In short, the court held that the district court did not have the authority to accept the civil case filed by Trump seeking the intervention of the judiciary in an ongoing federal criminal investigation.
The 11th Circuit noted the warrant to seize items in the residential part of Mar-a-Lago was approved by a U.S. magistrate judge and the warrant required a detailed review of potentially privileged documents. The appellate court stated that any litigation of the warrant could and should have been handled by the assigned magistrate judge and not in a separately filed civil matter.
Trump can seek reconsideration of last week’s decision by all the active judges of the 11th Circuit and review by the U.S. Supreme Court, but those maneuvers have little chance of success.
The 11th Circuit’s decision swept away as sawdust what Trump wanted to be a tree trunk blocking the road. The decision’s consequences are practical – –no further delays in reviewing possible evidence of criminality –– and psychological in that Trump’s defeat was emphatic.
Further, the backgrounds of three judges who decided the appeal belie the easy, quick commentary that too often is offered as an explanation for judicial decision-making. Of the judges on the appellate panel, two were appointed by Trump and one –– the chief judge –– was a George W. Bush appointee. The district judge, as has been noted many times, is a Trump appointee.
That a relatively narrow case can receive such disparate assessments by judges appointed by the same person (who also is one of the litigants) reflects a legal system administered by idiosyncratic, fallible individuals. But two aspects of the Mar-a-Lago saga should give one confidence, even if it is measured, in the courts.
The litigation arising from the Mar-a-Lago warrant and the seized materials has been unusually transparent. For example, despite the matter being an ongoing criminal investigation (as opposed to a charged case), the public (including the media) has access to the warrant and most of the supporting affidavit. In essence, the public already knows the factual and legal basis of the search. The availability of otherwise confidential information allows the public to evaluate the government’s actions without any interpretative spin. That is rare at this stage of a federal criminal matter and is of great value.
Also, the district judge’s rulings were subject to an appeals process. An appellate court (with different judges) considered the dispute anew without any deference to the earlier judge’s analysis or conclusions of law. The 11th Circuit has heard two appeals in the Mar-a-Lago investigation case thus far and rendered its decisions quickly with detailed written explanations.
We are spectators with an almost intimate view of a consequential legal tangle. Some of the facts may be extraordinary –– top secret documents and intelligence dossiers on a foreign leader –– but the underlying legal principles are basic, if bedrock. The principle that everyone, including a former president, answers to the same laws — that we are all common men and women –– appears vindicated for now.
Michael McAuliffe is a former federal prosecutor. He also served as the elected state attorney for Palm Beach County. He is a practicing lawyer, an adjunct professor at William & Mary’s Law School and a senior lecturing fellow at Duke University’s School of Law. He is the author of the novel “No Truth Left To Tell.”