Ransacked! 120 Minutes before 11th Circuit Hearing, Trump Attempts to Create a Fourth Amendment Injury

Less than two hours before the 11th Circuit hearing that may result in Judge Aileen Cannon being reversed for intervening in the Trump investigation, Trump’s attorneys (notably excluding Chris Kise) filed a motion for access to the affidavit for his search.

That this is a transparent attempt to give Judge Cannon some basis to intervene in both the Special Master review and the 11th Circuit appeal has not stopped reporters from treating it as a reasonable request.

It’s not.

Even if all the claims made in it were true, it still wouldn’t provide basis to give Trump the affidavit that (among other things) identifies who he could retaliate against for cooperating with investigators.

One of the most important paragraphs (and footnote) is this one.

Moreover, Plaintiff’s counsel has reviewed most of the seized materials over the last several weeks. The fact the Government took a huge volume of personal and family photographs, newspapers, thank-you notes, campaign materials, books, and golf shirts demonstrates that this search and seizure was nothing more than a general ransacking. 7 This raises serious questions about how the affiant characterized his or her assertion of probable cause and the justification for seizing thousands of personal and private items. Plaintiff must have an opportunity to review the affidavit and determine whether the Fourth Amendment was respected, intentionally subverted, or recklessly violated by a DOJ bent on getting its nose under the Mar-a-Lago tent.

7 A general rummaging through the belongings of President Trump is a particularly ominous moment in law enforcement history. With DOJ and some state officials engaging in various efforts to investigate President Trump, the search smacks of pretextual conduct with hopes of feeding personal documents to prosecutors or agents who might find use for them in unrelated pursuits. Authorization to seize “any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes” is an invitation to “rummage,” which every court has recognized as barred under the Fourth Amendment. See Andresen v. Maryland, 427 U.S. 463, 480 (1976) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)). [my emphasis]

Start with the books and sweaty golf shirts. According to a part of the affidavit that Trump has not contested (the highlighted items below are the ones that changed with an updated inventory), the FBI seized a total of 33 books in the search on August 8, across 33 items seized; the bulk, 23, were all in one box together. That box was likely close to another that had multiple Top Secret documents, as well as a book. Those books got seized because they were next to stolen Top Secret documents. There was likewise a piece of clothing or a gift the box with stolen Top Secret documents. And altogether, there were just 19 gifts or pieces of clothing seized.

That’s what Trump wants you to think amounts to a ransacking.

Many of the other items are actually things about which there is an active dispute before Raymond Dearie (as noted in this filing).

For purposes of the yellow-highlighted Disputes, the Special Master will see that three issues account for the overwhelming majority of disputes. From the government’s perspective, the three conceptual issues are:

1. Annotations. – Books, magazine articles, and newspaper clippings with markings are original Presidential records.

2. Thank you notes for presidential acts or events. – Thank you notes reflecting gratitude for acts taken in the course of official duties are Presidential records.

3. Briefing book compilations with indexes. – Briefing material and other work product prepared by presidential staff for the President are Presidential records.

Trump wants to claim press clippings on which he made annotations are personal; the Presidential Records Act says otherwise. Trump wants to claim that thank you notes sent to him in his role as President are personal; the Presidential Records Act says otherwise.

Among the campaign materials taken were several letters written by Kurt Hilbert about stealing the election in Georgia, as well as something written by Cleta Mitchell. Sure, those are campaign materials. They are also evidence of a crime. They were also returned already, and could have been returned earlier had Judge Cannon not intervened.

Trump’s claim that it is unusual for the FBI to seize personal materials as part of a search warrant (bolded above) is particularly ridiculous, not least because Plain View doctrine clearly says that DOJ can refer items seized with a warrant for prosecution.

But it’s particularly notable given this language in the order appointing Jack Smith.

The Special Counsel is authorized to prosecute federal crimes arising from the investigation ofthese matters. The Special Counsel is also authorized to refer to the appropriate United States Attorney discrete prosecutions that may arise from the Special Counsel’s investigation.

It permits Smith to refer things for further prosecution, including (presumably) any evidence of a crime he sees in the materials seized from Mar-a-Lago.

At this late hour, after being reversed once already, Judge Cannon is unlikely to get further over her skis.

But it likely will come up in the hearing starting in (now) 45 minutes, so Jim Trusty can claim, for the first time, that there has been a Fourth Amendment violation that merits Judge Cannon’s intervention under Richey.

Update: Even though improper to do so procedurally, Trusty did raise this argument, over and over at the hearing (he even complained that the FBI had taken Trump’s Celine Dion photo). That led both William Pryor and Britt Grant to observe that Trump’s argument kept changing over the course of the litigation before the 11th Circuit. Sopan Joshi, arguing for DOJ, laid out five such changes.

More importantly, the Chief Judge of the 11th Circuit noted that the reason so many personal items were seized is because Trump chose to store stolen classified records with his personal belongings.

You’ve talked about all these other records and property that were seized. The problem is the search warrant was for classified documents and boxes and other items that are intermingled with that. I don’t think it’s necessarily the fault of the government if someone has intermingled classified documents and all kinds of other personal property.

I don’t think Judge Cannon will be in a position to act on this motion for very long, but I think this comment from Pryor would give her pause before she did so anyway.

63 replies
  1. Teri Kanefield says:

    I don’t know how that crazy motion could allow Cannon to interfere with the appellate court.

    One thing the motion shows is that Trump is never going to behave rationally in this case. He’s going to keep swinging no matter what.

    By the way, thanks for your work. When I’m busy with book deadlines, I rely on your reporting.

  2. Katherine Williams says:

    From what I have read, it is fairly common for professional criminals to mix their illegal documents in with mundane everyday, even family, documents. Can cause confusion in simple-minded people, reporters, and some judges.

    Trump would naturally know how to behave like a professional criminal, since he is one.

    • HikaakiH says:

      I wonder if that’s something Trump learned from Roy Cohn, or perhaps his friend Joey No-Socks Cinque? Some of the reporting back in 2016/17 about Cinque’s links to Trump mentioned that he was convicted of possession of stolen property in 1989.

  3. Grant G says:

    Trump paying these lawyers, eer, Super Pac paying for lawyers to do something when their choices are limited, and most likely fruitless.
    Pretty sure 11 C will suss out the moving mirrors and come to the correct decision.
    Mirror mirror on the wall, who’s the most corrupt of them all……Trump is Trump is…..It will take Judge Cannon many decades to catch up.


  4. Peterr says:

    Trump’s lawyers are approaching the line between legitimate and frivolous filings.

    Imagine that back in the day, law enforcement obtained information on the location of items stolen by Jesse James during a bank robbery. They got a warrant allowing them to search a specific location for these items, and to seize them and other items stored in proximity to them. They organized their search team, descended on the site, found the items where they expected to find them, and seized them along with other notes, newspaper clippings, and additional items stored along with them.

    Among the items taken from the bank were documents outlining future train schedules that laid out when the bank was either sending or receiving sizable amounts of gold, silver, and cash. At the James hideout, next to these train schedule documents, the search team found personal notes discussing which trains might offer the best “return on investment” for future robberies, which people to recruit for future train robberies, and which locations might be the best places to waylay each of these trains.

    It’s beyond laughable that Jesse James could go into court and argue that his personal notes were illegally seized, and that the government could not use them in any future court actions.

  5. Rugger_9 says:

    I’ll agree that Cannon may not stick her oar in now because of how blatantly political it would be, unless the 11CA panel signals that they’ll reject the claim. After all, Cannon does have another shot to protect Individual-1 later regardless of what 11CA and SCOTUS do. IIRC I do not think the DoJ is trying to shanghai the case to DC in any of these motions so there is no urgency as I see it to rule before the case got removed.

    • timbozone says:

      Prior to the recent concluded election, DOJ appeared to be trying to avoid indicting anyone really, really close to Trump for government record violations. Now that the election has concluded, it appears to be up to the Special Counsel to pursue that angle if that’s what needs to be done. So now we wait to see what Jack Smith thinks should be done with what, on its face, appears to be a clear case of obtructing an investigation into missing governmental records. And some of those records happened to be Presidentail records and other appear to have been classified or DNI records, so what to charge, who to charge, and when to charge are complex issues…that, fortunately, Garland and Monico et al don’t have to keep juggling so much now that Jack is on the case. May the new Special Counsel be a man of his word and move expeditiously to bring wrongdoers to justice.

  6. earlofhuntingdon says:

    Yes, Kise is notably absent in this filing. As you say, it must have been intended for some purpose other than to make cogent legal arguments, supported by facts and precedent, because it doesn’t make any. It does use typical language aimed at Trump, such as claiming that the search was outrageous and “limitless.” In fact, the results of the search made clear the search was necessary.

    I haven’t finished going through the cited precedents regarding a 41(g) motion to return seized property, but I suspect most of them involve actual prosecutions, rather than pre-indictment searches. The precedents cited in earlier filings involved both, and uniformly favored the prosecution’s retention of validly seized material, specifically including personal records, pending completion of the government’s investigation and/or prosecution.

    • earlofhuntingdon says:

      Regarding the Trump-focused language in this motion,

      Plaintiff must have an opportunity to review the [unredacted] affidavit and determine whether the Fourth Amendment was respected, intentionally subverted, or recklessly violated by a DOJ bent on getting its nose under the Mar-a-Lago tent.

      The DoJ is “bent on getting its nose under the Mar-a-Lago tent?” Trump seems to have focused too much on his purportedly $4 billion Saudi development deal. To use a more apt analogy, I suspect Kise refused to sign off on this fishing expedition because he refused to embarrass himself with its arguments. That doesn’t work if he stays on the team.

      • emptywheel says:

        Not sure if you saw but on the 17th, Kise filed to argue today. Then yesterday, Trusty did.

        So yeah, they made a change in approach that Kise wans’t willing to embarrass himself with.

        • Kathy B says:

          Fascinating. That’s the second time (that I know of, there may be more) where one of his attorneys gets stuck with a task that could be problematic by the others. I’m thinking of Bobb, who signed the “we gave you the papers” affidavit for Corcoran.

  7. Gatorbaiter says:

    Could judge Cannon already know the identity of whoever cooperated with DOJ? Wouldn’t she have seen the unredacted affidavit?

  8. Unabogie says:

    Do we have any predictions about how long it might take for the 11C to rule? Are we talking hours, days, weeks, months? And is this appealable to the SCOTUS? It seems hard to imagine but everything seems to end up there with Trump.

    • emptywheel says:

      I think they may lift the remaining injunction within a day or so, and then write an opinion ordering Cannon to shut down in the near term.

      Not my expertise though.

    • Peterr says:

      It was an unsigned order declining to take the case, with no justices noted as dissenting. That’s not the same as “unanimous.”

      As opposed to most decisions on the merits, votes on orders are not reported, and the only times we know for sure how anyone voted on an order is when they choose to voice their dissent (which is not terribly common but not unheard of, either)

    • Paulka says:

      So, wouldn’t the new Republican House majority mean that Trump’s delay until now has been a net win for him? Given the obvious result that the House Republicans will do nothing with the tax documents.

      • DaBunny42 says:

        New Congress isn’t seated until January. They’re still lame ducks for a bit over a month more, which is enough time to at least look at the documents. And maybe put out a minority report sometime next year? Whether or not that’ll be worthwhile depends on what’s in the documents.

        • Marinela says:

          Can the minority house make a referral to DOJ with their findings? Put Katie Porter on these tax returns in the ;lame duck period.
          Or maybe the minority house can refer directly to the special counsel?
          I don’t think DOJ seen Trump tax returns yet, but maybe we just don’t know.

          • Ginevra diBenci says:

            Have all the votes been counted in Katie Porter’s race? I keep waiting to hear that one called.

  9. Amicus says:

    So I listened to the oral argument. The focus of the panel was almost entirely on the jurisdictional argument. Perhaps the most important exchange between Assistant Solicitor Joshi and (I believe) Chief Judge Pryor, was Joshi’s explanation that Supreme Court precedent authorized the court of appeals to not only vacate the injunction but also remand with instructions to Judge Cannon to dismiss the proceeding.

    Both Joshi and Trusty (arguing for Trump) acknowledged that there was no case that they were aware of where a litigant had successfully invoked a district court’s equitable jurisdiction where there had been no allegation that the search was unlawful. Trusty tried to argue that this was a process, and that they were getting to that point, and should not be punished for not bringing a premature Rule 41 motion.

    The panel did not seem to be buying it. Aside from the search involving a former President, Trusty conceded that there were no facts that would distinguish this matter, and prevent any other litigant from bringing a comparable equitable action to enjoin DOJ’s use of seized documents. Pryor made the point that the court of appeals had to be most concerned in not establishing broad reaching precedent that would afford any litigant the ability to frustrate DOJ’s pursuit of a criminal investigation. Again, Trusty fell back on the shibboleth of “context,” and “process.”

    Trusty claimed that the Hunsucker and Chapman decisions had misread and overread Richey to find that a showing of callous disregard for violation of the searched party’s constitutional rights was the foremost and indispensable factor for finding equitable jurisdiction. At least two members of the panel effectively said that argument was meaningless because the panel was bound by prior precedent. Trusty tried to assert that equity is flexible but this seemed to fall flat.

    The panel, and Joshi, also pointed out that Trump’s position had continually morphed throughout the course of the case, and what had begun as a concern over attorney-client privilege was now morphing into the preparatory steps for a Fourth Amendment suppression challenge. Trusty admitted that the evidence to make such a challenge did not exist when the case was brought, and this may well prove fatal. Jurisdiction must exist at all phases of a proceeding and if it did not exist at the outset, that defect cannot be cured by subsequent events.

    Given the fact that two of the panel members questioned the district court’s jurisdiction when they vacated the stay, and the general tenor of Chief Judge Pryor’s questioning, it seems likely that a ruling will be forthcoming directing Judge Cannon to dismiss the proceeding.

    • Dr. Noisewater says:

      Did Judge Dearie waive payment for his services because that would be so rad if he got paid a no show job personally by FPOTUS lmao. I know the judge did tons of work for this obviously and admirably I’d add but the circumstances would be funny if 11th reverses Cannon.

      *Caveat* I’m pretty sure I used a different (but similar) handle to comment here but I can’t remember exactly what it is, sorry mods, I’ll try to find previous handle.

      • earlofhuntingdon says:

        Dearie waived payment for acting as special master, beyond his salary as a senior district court judge in NY.

      • Amicus says:

        I saw that! I think we both have it correct. As soon as I heard CJ Pryor say he had a “technical question,” I thought here comes what he wants to know. He wants the decision to be bullet proof.

        • Former AFPD says:

          Thanks for listening to the argument, and for your comments, Amicus – once again. Yeah, jurisdiction is a “technical” question. Haha. Maybe technical for TFG’s lawyers, but not for experienced federal appellate lawyers. If you’re fighting over jurisdiction instead of the merits in a federal appellate court, you are in trouble.

    • earlofhuntingdon says:

      A premature unlawful search argument would also have failed for several reasons. Even if successful, the normal course is to ban the fruit of an unlawful search from being used at trial. Here, there’s been no indictment yet.

      Trump’s team is flailing, desperately hoping for the special treatment Trump has expected and received all his life, and which Trusty unpersuasively argued he’s not expecting here.

      • emptywheel says:

        An attorney who has had to litigate against him when he was in MD described him as all bully and bluster.

        • Ginevra diBenci says:

          Trusty? Or Trump? Since we all know that fits Trump, I assume you mean Trusty, whom Trump seems to have brought on for exactly those qualities–bullying and bluster–because appearance trumps substance in MAGA world.

    • Linda says:

      In trumps brief, I was especially enthused when they cited the definition of indispensable from Merriam Webster’s dictionary! It reminded me of a certain underfunded university’s FOIA department’s lawyer’s response.

      • bmaz says:

        Citing common dictionaries for legal arguments is lazy and silly, and should never be done if there is any alternative.

  10. cbear says:

    Doesn’t the government have the right to seize any nearby or adjacent documents or property simply to prove Trump’s “Constructive Possession” of the TS documents?

    • Operandi says:

      That is likely why Magistrate Renhairt signed off on the warrant’s procedure originally.

      Also, it’s taken a bit of a backseat to the classified stuff and hasn’t shown up much in DoJ’s arguments, but the warrant also was looking for evidence of section 2071 violations. All the material seized that qualifies as a “presidential record” under the PRA is government property, concealment of which is independently a crime.

    • [email protected] says:

      Yes. And CJ Pryor got to remind Trustee while he was standing in front of the panel that DOJ could not be blamed for Trump’s poor choice to comingle. (“Too bad your client was a messy criminal’ — is how I took that line.)

      Q guessing on how long:
      I think the injunction will be lifted within 48 hours, and case dismissed within a week, if they recycle much of the text from their stay of Cannon’s injunction that kept DOJ from accessing classified docs.

      Also curious about the softball Qs asked by female judge: was this her way of saying “Can you believe the district judge didn’t know this simple legal question that a first year law student would know?” These were NOT like Scalia’s “pretend Qs” that really just gave the struggling counsel whose argument he favored, the answer to the previous justice’s question. (A habit now being practiced by Alito, I’ve noticed.)

      Any appellate practioners out there to weigh in and clarify?

  11. JonathanW says:

    In reading the linked Trump document, I see a lot of accusations of “DOJ leaks to the media”, and complaints about it all playing out in the press. The accusations are not backed up by any facts (like DOJ employee XYZ leaked story ABC to the New York Times or something of that nature). Isn’t it equally likely that the leaks came from the Trump team? If so, it seems like serious chutzpah for the Trump team to use their own leaks as a reason to get access to the affidavit!

    Just to be clear, lest I be convicted of making an accusation without evidence, I don’t have any evidence that Trump’s team leaked, nor am I saying that I’m certain the Trump team leaked. I’m simply saying that I didn’t see any evidence either way, and the document didn’t provide any support for what it stated as a fact, which struck me as suspicious.

    • Ginevra diBenci says:

      Most of the “leaks” Trump’s team points to involve stories in the Washington Post written by Devlin Barrett and/or Josh Dawsey, like the “nuclear documents” article. I have suspected all along that these “revelations” ultimately come from Trump’s allies, possibly those in the FBI who consider themselves “whistle-blowers.”

      These stories are a win-win for journos and Trump. WaPo gets vaguely sourced scoop, and Trump’s legal team gets to scream and yell about leaks, accusing DOJ of doing the leaking when they aren’t.

  12. Linda says:

    I agree that the timing of Kise’s filed motion for access to the unredacted affidavit was suspect, however not unfounded. This is the only case on Pacer in which the FBI’s agent name is redacted and rather than fearing for their safety, I think they are fearful of right wing media exposure (recall Strzok and Page…). Second, there’s plenty of case law for the need for witness names. The Government even cited some had Trump even bothered to read their briefs (Al Odah v US…).

    • bmaz says:

      Baloney. Witness, CI and other names are quite commonly redacted from affidavits, especially in early phases of investigations.

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