11th Circuit Says a Judge Should Not Have Interfered With the FBI's Review of the Mar-a-Lago Documents
The appeals court says Donald Trump's status as a former president does not entitle him to special treatment.
U.S. District Judge Aileen Cannon never should have interfered with the FBI's investigation of government records that former President Donald Trump retained after leaving office, a federal appeals court ruled last week. The decision, which the U.S. Court of Appeals for the 11th Circuit issued late Thursday, allows the Justice Department to resume its examination of some 13,000 documents that the FBI seized from Mar-a-Lago in August. Special Counsel Jack Smith is considering whether Trump or his underlings committed federal crimes by keeping the records at his Palm Beach resort.
Cannon threw a wrench into that investigation on September 5, when she agreed with Trump that a special master should first review the records to see whether any qualified as personal property, attorney-client communications, or material covered by executive privilege. The 11th Circuit blocked part of that order a few weeks later, restoring the FBI's access to more than 100 records that were marked as classified. The court noted that Trump "has not identified any reason that he is entitled to them." Last week's ruling vacated Cannon's decision in its entirety and instructed her to dismiss Trump's lawsuit.
The appeals court did not address the merits of the potential criminal charges against Trump, which include improper retention of government records, mishandling of "national defense information," and obstruction of a federal investigation. But the 11th Circuit panel—which consisted of three judges appointed by Republicans, including two Trump nominees—unanimously concluded that Cannon had clearly erred in deciding to exercise "equitable jurisdiction" over the case.
"We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant," the unsigned opinion says. "Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts' involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations."
To comply with those limitations, the 11th Circuit says, courts must "avoid unnecessary interference with the executive branch's criminal enforcement authority" while "also offering relief in rare instances where a gross constitutional violation would otherwise leave the subject of a search without recourse." Toward that end, "this Circuit has developed an exacting test for exercising equitable jurisdiction over suits flowing from the seizure of property."
Under that test, a plaintiff seeking the return of seized property must show 1) that the government displayed a "callous disregard" for his constitutional rights, 2) that he "has an individual interest in and need for the material whose return he seeks," 3) that he "would be irreparably injured by denial of the return of the property," and 4) that he otherwise would not have "an adequate remedy at law for the redress of his grievance." The 11th Circuit found that Trump had failed to meet any of these criteria, let alone all four.
The Mar-a-Lago search was authorized by a warrant from U.S. Magistrate Judge Bruce Reinhart, who agreed that there was probable cause to believe the FBI would find evidence of criminal conduct. The 11th Circuit reviews the chain of events leading to that warrant, including the National Archives and Records Administration's efforts to recover documents that Trump had stashed at Mar-a-Lago; the discovery of 184 classified records in 15 boxes that Trump surrendered a year after leaving office; and the federal subpoena seeking any remaining documents that were marked as classified, which produced 38 more in early June.
Although Trump's representatives assured the Justice Department that they had turned over everything covered by the subpoena after a "diligent search," the appeals court notes, "the FBI developed more evidence that other classified documents remained at Mar-a-Lago," which turned out to be true: Fifteen of the 33 "boxes, containers, or groups of papers" that the FBI seized during its August 8 search "contained documents with classification markings, including three such documents found in desks in Plaintiff's office." The search "uncovered over one hundred documents marked confidential, secret, or top secret."
Since Reinhart approved the search based on evidence that he thought established probable cause, the 11th Circuit says, "the callous disregard standard has not been met here, and no one argues otherwise." Trump conceded as much but argued that he did not need to satisfy that part of the test for equitable jurisdiction. Cannon agreed. "That is an incorrect reading of our precedent," the appeals court says.
To establish that he had a need for the seized documents, Trump said they included his passports and "similar materials." But "the passports had already been returned before he filed his first motion, and his jurisdictional brief did not explain what 'similar materials' were at issue or why he needed them," the 11th Circuit notes. "The district court was undeterred by this lack of information."
In concluding that Trump "would be irreparably injured by denial of the return of the property," Cannon cited three concerns: the potential use of privileged documents, improper disclosure of "sensitive information," and the "stigma" associated with the threat of criminal prosecution. Defending Cannon's order in response to the Justice Department's appeal, Trump adopted the latter two arguments.
"It cannot be that prosecutors reading unprivileged documents seized pursuant to a lawful warrant constitutes an irreparable injury for purposes of asserting equitable jurisdiction," the appeals court says. "Plaintiff's argument would apply to nearly every subject of a search warrant. The district court's unsupported conclusion that government possession of seized evidence creates an 'unquantifiable' risk of public disclosure is not enough to show that Plaintiff faces irreparable harm."
In the 11th Circuit's view, the "stigma" argument likewise proves too much. "No doubt the threat of prosecution can weigh heavily on the mind of anyone under investigation," it says. "But without diminishing the seriousness of the burden, that ordinary experience cannot support extraordinary jurisdiction."
Finally, Trump was supposed to show that he would have no viable alternative remedy unless Cannon intervened. Cannon concluded that Trump "would have no legal means of seeking the return of his property for the time being and no knowledge of when other relief might become available." But "this is not sufficient justification," the 11th Circuit says.
"There is no record evidence that the government exceeded the scope of the warrant—which, it bears repeating, was authorized by a magistrate judge's finding of probable cause," the appeals court notes. "And yet again, Plaintiff's argument would apply universally; presumably any subject of a search warrant would like all of his property back before the government has a chance to use it."
Alternatively, Trump argued that he needed Cannon's injunction to "protect documents that he designated as personal under the Presidential Records Act." But "the status of a document as personal or presidential does not alter the authority of the government to seize it under a warrant supported by probable cause," the 11th Circuit says. "Search warrants authorize the seizure of personal records as a matter of course."
In any case, the appeals court says, "all these arguments are a sideshow," since Trump never showed that the government had violated his rights: "If there has been no constitutional violation—much less a serious one—then there is no harm to be remediated in the first place."
Cannon emphasized the unprecedented nature of the Mar-a-Lago search. "It is indeed extraordinary for a warrant to be executed at the home of a former president—but not in a way that affects our legal analysis or otherwise gives the judiciary license to interfere in an ongoing investigation," the 11th Circuit says. "To create a special exception here would defy our Nation's foundational principle that our law applies 'to all, without regard to numbers, wealth, or rank.'"