The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Former President Trump has now appealed the recent ruling by the 11th Circuit in the Mar-a-Lago Seizure Case to the Supreme Court. [His "Application to Vacate" the 11th Circuit ruling is here.] The application now goes to Justice Thomas—the designated Circuit Justice for the 11th Circuit—who will almost certainly refer it to the full Court for disposition.
The emergency appeal is based on some VERY gnarly and complicated jurisdictional and procedural rules, about which I am no expert. But it doesn't look to me like the ex-president's case is a terribly strong one.
Here are the basics. Judge Cannon, you will recall, issued an "Order" this past August, "authorizing the appointment of a special master" to review the seized documents, and "temporarily enjoining the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master review."
The DOJ appealed to the 11th Circuit, arguing, among other things, that the District Court lacked jurisdiction over any seized documents "bearing classification markings"—i.e., labeled "Classified," "Top Secret," or the like—because those documents belong to the Government, and that the portion of the District Court's Order restricting the Government's access to and use of those documents was therefore invalid. The 11th Circuit agreed, and vacated the District Court's Order "to the extent it enjoins the government's use of the classified documents and requires the government to submit the classified documents to the special master for review."
Trump's argument to the Supreme Court is that the 11th Circuit "lacked jurisdiction to review, much less stay, an interlocutory order of the District Court providing for the Special Master to review materials seized from President Trump's home."
Here's why that argument will fail. It is true that a district court's appointment of a special master is an "interlocutory order" that is unappealable while the case is ongoing. But Judge Cannon's Order did more than just authorize the appointment of a special master; it also explicitly enjoined the Government from taking certain actions. And 28 U.S.C.§ 1292(a)(1) specifically gives the courts of appeals jurisdiction over interlocutory orders granting injunctions. As the 11th Circuit put it:
Plaintiff argues that we "lack jurisdiction to review the special master's authority." But our order does not address the special master's authority; it addresses the district court's orders as they require the United States to act and
to refrain from acting.
The DOJ appeal wasn't challenging the appointment of the special master, nor was it challenging any of the district court's orders directed to the special master concerning the scope and conduct of his review; rather, it was challenging those parts of Judge Cannon's Order that were directed specifically to them – the government—orders which just happen to be included in the same document in which she appointed the special master. And it assuredly had jurisdiction to hear an interlocutory challenge to those.
This Court has—so far—been very good about dealing even-handedly with Trump's legal arguments when they have had occasion to review them, and rebuffing them when the law was not on his side, and I'm pretty certain it will do so again here.