The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last Thursday, the Supreme Court spurned Donald Trump's request that the Court intervene in the ongoing dispute over the Department of Justice's review of documents seized at Trump's Mar-a-Lago resort. Trump and his attorneys had asked the Court to vacate the Eleventh Circuit's partial stay of Judge Aileen Cannon's order barring federal investigators from continuing to examine seized documents bearing classification markings, but the Court showed no interest in getting involved.
In the wake of the Supreme Court's rebuff of Trump's filing, the Justice Department filed a brief with the Eleventh Circuit seeking to put an end to Judge Cannon's intervention altogether. In the brief, the Justice Department argues that Judge Cannon never had jurisdiction to appoint a special master to review any of the seized documents in the first place, and further explains why there are no plausible bases for claims of Executive Privilege that would justify judicial intervention. The force of the brief is strengthened by its reliance upon the Eleventh Circuit's previous decision, staying portions of Judge Cannon's order.
From the brief:
District courts have no general equitable authority to superintend federal criminal investigations; instead, challenges to the government's use of the evidence recovered in a search are resolved through ordinary criminal motions practice if and when charges are filed. Here, however, the district court granted the extraordinary relief plaintiff sought, enjoining further review or use of any seized materials, including those bearing classification markings,"for criminal investigative purposes"pending a special-master review process that will last months. . . .This Court has already granted the government's motion to stay that unprecedented order insofar as it relates to the documents bearing classification markings. The Court should now reverse the order in its entirety for multiple independent reasons.
Most fundamentally, the district court erred in exercising equitable jurisdiction to entertain Plaintiff's action in the first place. The exercise of equitable jurisdiction over an ongoing criminal investigation is reserved for exceptional circumstances, and Plaintiff failed to meet this Court's established standards for exercising that jurisdiction here. The district court itself acknowledged that there has been no showing that the government acted in "callous disregard" of Plaintiff's rights. As a panel of this Court rightly determined, that by itself "is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here." Trump v. United States, 2022 WL 4366684, at *7 (11th Cir. Sept. 21, 2022) (granting motion to stay). The remaining factors under this Court's precedent likewise dictate that the district court's exercise of jurisdiction was error. The Court should therefore vacate the district court's order with instructions to dismiss Plaintiff's civil action.
I would think that the Justice Department has a reasonable likelihood of success with these arguments, in particular because an Eleventh Circuit panel has already indicated its agreement with key portions of the government's arguments. It may take some time, however, as the briefing in this appeal will not be complete until the middle of next month.