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Equity, Property, and Former President Trump


Yesterday a federal district court granted President Trump's request for a special master to review material seized from his Mar-a-Lago estate, and the court also temporarily enjoined the Government "from further review and use of any of the materials seized from Plaintiff's residence on August 8, for criminal investigative purposes" (page 23). The ground for all of this, the court said, was its "equitable jurisdiction and inherent supervisory authority" (page 1). The claim to inherent supervisory authority seems improbable to me. Whatever that authority is, and it is debated, I will leave that aside to consider the court's "equitable jurisdiction."

"Equitable jurisdiction" means the power of a court of equity to act. It's not quite the same as subject-matter jurisdiction, though the concepts overlap. We could say "you have subject-matter jurisdiction under x statute, but you don't have equitable jurisdiction because there is an adequate remedy at law." Equitable jurisdiction is required for equitable intervention.

Another preliminary: there are three categories of equitable jurisdiction. These three categories go back to the end of the eighteenth century, they're present in Story, and they're useful shorthand for how equity acts even today, when there has been procedural but not substantive merger of law and equity (on the extent of that merger, see, e.g., Petrella, as discussed in Bray, The Supreme Court and the New Equity, pages 1034-1036).

These three categories of equitable jurisdiction are: the exclusive jurisdiction, where equity makes all of the relevant law (the big example is trusts); the concurrent jurisdiction, where equity intervenes because of some deficiency or inadequacy in the regular operation of law and especially of legal remedies (this is most of what equity does); and the ancillary jurisdiction, where equity operates to aid some other court's adjudicatory processes. The last of these is usually irrelevant after procedural merger, and I'm going to set it aside (though there's a small chance it would be relevant here). The first of these is not relevant here. The bucket we're in is the concurrent jurisdiction of equity.

One last preliminary: if you'd like to read more about these basics of equitable jurisdiction, I recommend two papers: Bray and Miller, Getting Into Equity (published earlier this year in the Notre Dame Law Review), and Bamzai and Bray, Debs and the Federal Equity Jurisdiction (forthcoming later this year in the Notre Dame Law Review). The Getting Into Equity paper was part of the Notre Dame Law Review's federal courts symposium issue on equity, and it had a stellar set of scholars writing on equity (Rachel Bayefsky, Seth Davis, Kellen Funk, John Harrison, Andrew Kull, Michael Morley, Jim Pfander and Peter Douglas, Fred Smith, Mila Sohoni, and Ernie Young). I recommend the whole issue.

Now, how is all of this relevant for the latest big equity decision from a federal court? Here's my view in brief:

The actual remedies given by the district court are broad, expansive, and yet largely unobjectionable in equity. Preliminary injunctions and special masters are often paired. Even though the injunction against the "review and use" of the seized material is broad, injunctions are often focused on the exercise of a legal power. It's ok for equity to say "don't use x," as in, say, a trade secret case. Including "don't use x until we can figure out who x belongs to," which is not far from this case (though the fact that the seized material has already been reviewed might be a relevant distinction). Equity's concern with the protection of information can be seen as far back as 1818 and the canonical case of Gee v. Prichard about the publication of letters.

That said, I don't think there is equitable jurisdiction here. This is so for various interrelated reasons, but let's start where the court does:

The court says that former President Trump's motion "creates an action in equity" (page 7). There are no "actions in equity," because the "cause of action" organizing principle works at law, not equity. This is discussed in detail in Bray & Miller, Getting Into Equity. The cited sources in the court's opinion also don't support the idea.

But the court then shifts to saying it "first must decide to exercise its equitable jurisdiction" (page 7). This is more promising, because "equitable jurisdiction" rather than "action[s] in equity" is the right category. Yet the court is still eliding the initial step. It's not whether the court decides to exercise its equitable jurisdiction, but whether it has equitable jurisdiction in the first place. This is an important flaw in the court's analysis, because it proceeds to consider whether to grant equitable relief without asking about the prerequisites for doing so. Or, to put it another way, the court moves too quickly past whether the legitimating prerequisites for equity getting involved have been met. And when it does discuss threshold requirements, like standing, it does not do so in a particularly equitable key.

So, is there equitable jurisdiction? I think there is not for three interrelated reasons. Let me state the reasons and then explain their relatedness.

First, it's a principle of equity that it will not enjoin a criminal proceeding. There are various explanations for this, but one of them is basic trust in the adequacy of the criminal process. That can be doubted—there are many opportunities for error and oppression in our criminal process—but kicking things over to equity and the decisions of a judge without a jury doesn't get us into an error-and-oppression-free zone. So it's been a longstanding principle that equity will stay out of the criminal process. Younger cases tend to focus on whether a prosecution has been filed, but Younger—which cites this basic principle of equity jurisprudence—is just an outcropping of the general idea. It does not exhaust, limit, and replace the previous principle that equity will not enjoin a criminal proceeding, but instead applies it to a particular kind of federal-on-state intervention (on the federalism dynamics for equitable intervention, see especially the work of Kellen Funk and Fred Smith). So the fact that no federal prosecution of former President Trump has been initiated may be a reason not to invoke Younger abstention, but it is not a reason to evade the general principle that equity stays out of the criminal process, which would include criminal investigations by the Department of Justice.

Second, it's a principle of equity that in order to intervene (in the concurrent jurisdiction) there needs to be a proprietary interest for the plaintiff. That helps to narrow and focus the equitable intervention, and works a lot like modern standing doctrine does (as discussed in Bamzai and Bray, Debs and the Federal Equity Jurisdiction). In a way, this makes equitable jurisdiction turn on a merits question—does the former president have a property right in the classified documents taken from the White House and stored in Mar-a-Lago? The district court astutely recognizes this (page 13). But there are very good reasons to think former presidents have no such a property right in perpetuity in private life, and at any rate there is sufficient doubt that that is a reason not to grant equitable relief. (Note that I use "classified" in this post without getting into or making assertions about the various levels.)

So let's assume that former President Trump has no property right to the classified documents of the United States, but he does have a property right in his own personal effects that are intermingled with those classified documents. That leads to the third reason to think there is no equitable jurisdiction:

Third, equity offers no relief to those who come into equity with unclean hands. This is a basic principle of equitable jurisprudence, and although it is a defense, in equity there's overlap between "jurisdiction" and "claims" and "defenses" and "remedies." It's not fallacious in equity to say "there's no equitable jurisidiction to give such a broad and unenforceable remedy," or "there's no equitable jurisdiction because the plaintiff has unclean hands." These categories are just more porous and overlapping in equity (as discussed in detail in Bray and Miller, Getting Into Equity—see the metaphor of tags rather than a hierarchical file system). If former President Trump commingled his personal effects with classified documents belonging to the United States, then that is not a reason to allow him to restrict use of the government's property. Instead, that is a reason to deny him any relief to protect his own property.

And you can see why these are related. One exception to "don't enjoin a criminal proceeding" is to protect proprietary interests, and a proprietary interest is needed for equitable intervention, and Mr. Trump's proprietary interest here is only in things that he has wrongfully commingled with government documents.

Now all three of these reasons I give for no equitable jurisdiction are discussed in the district court's opinion. But they are treated as separate and mostly as tertiary questions. Younger appears in a footnote on the penultimate page, supporting a sentence that says "The Court is mindful that restraints on criminal prosecutions are disfavored." But the court does not recognize that Younger, and more generally the principle that equity will not enjoin a criminal proceeding, are not advice about how to exercise equitable jurisdiction as much as they are limiting principles on whether there is equitable jurisdiction in the first place.

Similarly, the court does want to be careful not to say that former President Trump has a property right in the classified documents, so it emphasizes his personal effects that are mixed in. But the court treats that intermingling as if it were unobjectionable, and does not connect the question with its one footnote batting away the unclean hands defense (footnote 12 on page 12). The court rejects the unclean hands defense because "Plaintiff has not pled guilty to any crimes" (which is of course not a requirement for unclean hands), because "the Government has not clearly explained how Plaintiff's hands are unclean with respect to the personal materials seized" (when commingling them with government property not licitly held is precisely such an uncleanness); and because "in any event, this is not a situation in which there is no room to doubt the immediately apparent incriminating nature of the seized material" (which is again not a requirement for unclean hands).

So where does all of this lead? One implication is that the court has taken a wrong path: it has appointed a special master and issued a preliminary injunction even though it lacks the legitimating preconditions for equitable intervention.

Yet I am not very sympathetic to the critics who doubt whether equitable remedies can control what is done with the material seized at Mar-a-Lago (i.e., the criticism that enjoining "review and use" is out of bounds for equitable remedies, as perhaps in this tweet thread from co-Volokh Conspiracy blogger Orin Kerr). There are grounds for criticism: "review and use" is vague and should be spelled out (see the equitable principle restated in Federal Rule of Civil Procedure 65(d)(1)); in terms of DOJ investigators seeing and knowing the contents of the documents, the horse has left the barn, and equity does not decree impossibilities. But when the chancellor gets his hands on you, equity's powers are awesome.  I'll come back to that in a moment.

Instead of focusing on the intensity of the remedy, we should say there is no equitable jurisdiction here for multiple intersecting reasons—don't enjoin a criminal proceeding, former President Trump has no proprietary interest in the government documents (or there is at least so much doubt about that question that it should not be presumed), and any personal effects that he has intermingled with the government documents are not protectable. That is, because he has intermingled his own property with government documents not properly in his possession, he is not coming to equity with clean hands.

I will concede that one could fashion a narrower and less objectionable injunction. Courts sometimes invoke an exception to "equity will not enjoin a criminal proceeding" for the protection of property, as some of the cases on Federal Rule of Criminal Procedure Rule 41(g) seem to imply. But if so the scope of the equitable intervention would be limited to protection of former President Trump's own personal property. That is, if for whatever reason a court decided not to apply the unclean hands defense, then there could be an injunction requiring the retention or return of his own personal effects. But I do not see any basis in equitable jurisdiction for allowing that commingled personal property to be the grounds for controlling the broader DOJ review of the seized material that belongs to the United States.

Now these are not the only reasons to think a court should conclude that it has no equitable jurisdiction, or else that it should decline to exercise equitable jurisdiction.

For example, statutes can limit or channel equitable jurisdiction, and one question is whether Federal Rule of Criminal Procedure 41 does that.

And there are also various strong separation of powers concerns here (as discussed by Orin), and those should inform the exercise of equitable powers in the United States. Even if not often followed (as Kellen has shown), the logic is the same as what Younger says about federalism: "The doctrine may originally have grown out of circumstances peculiar to the English judicial system and not applicable in this country, but its fundamental purpose of restraining equity jurisdiction within narrow limits is equally important under our Constitution . . . ."

Or to take another reason for the court not to act, the unclean hands point should also be given decisive weight in the balance of the equities. By analogy, if you build your house a foot over your neighbor's property line–and you know that it's over the line–you will not be heard to object to an injunction ordering you to tear down your house. Unclean hands takes us out of our ordinary balancing of costs and benefits (see Henry Smith, Equity as Meta-Law, at page 1127).

And the very intensity of the remedy matters for thinking of about whether there is a sufficient basis for equitable intervention. Precisely because this is such an intensive injunction–controlling "review and use" of material in a criminal investigation by the DOJ–there needs to be extra-strong grounds for equitable jurisdiction. As Paul Miller and I write in Getting Into Equity,

[T]his analysis helps illuminate why the Supreme Court's equity cases so often tend to merge together considerations of justiciability, merits, and remedy. Other scholars have skillfully analyzed the interplay of these considerations [citing Richard Fallon], but in this less equity-conscious age some may miss that this interplay is different in law and in equity [citing Ernie Young as an exception]. For legal claims, justiciability is a threshold, and once through the door the plaintiff is able to obtain remedies without much consideration of whether the plaintiff just barely made it over the threshold. But in equity it all connects—the broader and deeper the remedy the plaintiff wants, the stronger the plaintiff's story needs to be.