11th Circuit to Trump: You’re Not Special

The 11th Circuit has, as expected, vacated Aileen Cannon’s order enjoining the government from investigating Donald Trump, remanding it with an order to dismiss the suit. (Though they gave Trump seven days to appeal before the order goes into effect.)

The opinion’s key point is that, were they to rule for Trump, it would create an impossible precedent, either halting much pre-indictment access to seized material, or creating an exception only for former Presidents.

In considering these arguments, we are faced with a choice: apply our usual test; drastically expand the availability of equitable jurisdiction for every subject of a search warrant; or carve out an unprecedented exception in our law for former presidents. We choose the first option. So the case must be dismissed.

[snip]

The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. 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. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.

Much of the opinion is an Richey analysis–the analysis Cannon worked so hard to manufacture. It’s not all that interesting. The key point is that, as Jay Bratt told Judge Cannon on August 30, the precedent in the circuit is clear.

But in conducting a Richey analysis, which it ultimately called a “sideshow,” the opinion took repeated swipes at the efforts Cannon went to make shit up to benefit Trump.

The district court was undeterred by this lack of information. It said that “based on the volume and nature of the seized material, the Court is satisfied that Plaintiff has an interest in and need for at least a portion of it,” though it cited only the government’s filings and not Plaintiff’s. But that is not enough. Courts that have authorized equitable jurisdiction have emphasized the importance of identifying “specific” documents and explaining the harm from their “seizure and retention.” See, e.g., Harbor Healthcare Sys., L.P. v. United States, 5 F.4th 593, 600 (5th Cir. 2021) (Harbor did “far more than assert vague allegations” by pointing to “thousands” of privileged documents that the government retained for four years). Neither the district court nor Plaintiff has offered such specifics.

The opinion was even more scathing, though, in dismissing the notion that leaking classified information would harm Trump.

Plaintiff has adopted two of the district court’s arguments, dedicating a single page of his brief to discussing the first and third theories of harm. On the first argument, Plaintiff echoes the district court and asserts that he faces an “unquantifiable potential harm by way of improper disclosure of sensitive information to the public.” It is not clear whether Plaintiff and the district court mean classified information or information that is sensitive to Plaintiff personally. If the former, permitting the United States to review classified documents does not suggest that they will be released. Any official who makes an improper disclosure of classified material risks her own criminal liability. See, e.g., 18 U.S.C. § 798. What’s more, any leak of classified material would be properly characterized as a harm to the United States and its citizens—not as a personal injury to Plaintiff.

The only thing specific to Trump’s status as an ex-President, besides the opinion’s repeated reminder that he is not special, is the way with which the opinion twice dismissed Trump’s claim that if he had designated these documents his personal property under the Presidential Records Act, it would allow him to keep it. That’s nonsense, of course, because warrants authorize the seizure of personal property as a general rule.

Indeed, Plaintiff does not press the district court’s theory on appeal. Instead, he argues that the Presidential Records Act gives him a possessory interest in the seized documents. This argument is unresponsive. Even if Plaintiff’s statutory interpretation were correct (a proposition that we neither consider nor endorse), personal interest in or ownership of a seized document is not synonymous with the need for its return.3 In most search warrants, the government seizes property that unambiguously belongs to the subject of a search. That cannot be enough to support equitable jurisdiction.

[snip]

Plaintiff’s alternative framing of his grievance is that he needs a special master and an injunction to protect documents that he designated as personal under the Presidential Records Act. But as we have said, 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; search warrants authorize the seizure of personal records as a matter of course. The Department of Justice has the documents because they were seized with a search warrant, not because of their status under the Presidential Records Act.

3 During discussion of this factor at oral argument, Plaintiff’s counsel noted that the seized items included “golf shirts” and “pictures of Celine Dion.” The government concedes that Plaintiff “may have a property interest in his personal effects.” While Plaintiff may have an interest in these items and others like them, we do not see the need for their immediate return after seizure under a presumptively lawful search warrant.

Here, Jim Trusty’s wails about Celine Dion really served to demonstrate how absurd the grievance was. Ultimately, Trump’s Celine Dion picture was not a sufficiently urgent piece of property to hold up a search warrant.

A very conservative panel, including two Trump appointees, just confirmed that he’s not special anymore.

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147 replies
  1. earlofhuntingdon says:

    Reasonably convincing, especially the part about remanding the case with instructions for Cannon to dismiss the suit for lack of jurisdiction. However much he might like to, I don’t think Clarence Thomas will step in to delay things further. I suspect he would like to find more fertile legal ground.

    Good also because the ruling requires Trump to pay court costs. :-)

    • Joeff1953 says:

      SCOTUS has already given Trump the back of its hand in this case. He’ll get no help now.
      Court costs aren’t attorney fees; they’re for printing the briefs and suchlike.

        • Bears7485 says:

          My understanding is that Dearie himself wasn’t taking any extra salary because he felt that this assignment fell under his salary’s purview. Any aides or lawyers he brought in would need to be compensated by FPOTUS AFAIK.

    • Leela says:

      I just can’t believe that Canon did what she did out of the goodness of her heart. I bet there was communication if not remuneration. I’d like to see that getting investigated

  2. A C says:

    My question now is whether he’ll refuse to pay Dearie’s bill… that would be very like him.

    [FYI — I have changed your username on this comment to match the one you’ve used on three previous comments. I don’t believe you actually intended to use your email as a username. For future comments, please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Thanks. /~Rayne]

          • Dave says:

            Stanley, nice one – very glad to be proven wrong wondering if any would be hip to the Monk tune ref’ed by the pun! Great ballad…and indeed, Dearie might indeed have an Epistrophy, .. I mean epiphany….

              • greenbird says:

                Epistrophy – Wikipedia
                Epistrophy may refer to: Epistrophy (composition), a jazz standard composed by Thelonious Monk and Kenny Clarke in 1941. Epistrophy (Ran Blake album), a 1991 album by Ran Blake. Epistrophy (Steve Lacy album), a 1969 album by Steve Lacy. Epistrophy & Now’s the Time, a 1972 live album by Richard Davis also known as Epistrophy.
                always, always flabbergasted by the knowledge of the Wheelians!

                • theartistvvv says:

                  Confusing the older jazz “Steve Lacy” with the modern hip-hop/R&B “Steve Lacy”, I looked it up and note allmusic.com has 427 entries for “Epistrophy”.

        • Dave says:

          punaise: “Rue, be my Dearie” Nice pun there, you are obviously hip to the beautiful jazz tune “Ruby My Dear” written by jazz giant Thelonious Monk in 1948. Well played, though I doubt many get it – if any! Props.

          • Matt___B says:

            I got it. And have played it at gigs. And I don’t care when it was actually written, though Wikipedia says 1945.

            • Dave says:

              I agree on the year not being that important here, its nuts what different sources say, regarding year of composition vs recording, all over the place. Not worth belaboring. The year does makes a difference when some brand new ground being broken, e.g. Firebird, Petroushka, The Rite, all in 3-4 yrs.

            • Matt___B says:

              Thank you. Just listened.

              Did you know there’s a Miles version of Well You Needn’t that has different chords in the bridge?

              I didn’t until recently. And I still prefer the Monk version meself….

              • Dave Dorsett says:

                I was curious and listened and read a bit, Miles changes are indeed different than Monk’s, many a tritone away so similar-ish movement under the hood. Apparently the Real Book (arggg) changes most of us know are Miles’. Agree on preferring Monk’s vers overall if only for Monk’s pianistic approach, huge difference and that’s the conception of the writer, after all.

              • Dave says:

                Looks like Miles’ changes are the ones that ended up in the Real Book for that section, Monk’s are largely a tritone away. Thanks, Miles!…

                • Matt___B says:

                  There’s a CD that’s been in circulation for years that contains all 3 Real Books (illegal), all 3 New Real Books (legal) plus several others. One of those “others”, the Colorado Cookbook, contains charts for both versions.

                  • Dave says:

                    Thanks much for info, and man are we in the non-legal-discourse weeds here or what, ha?!! I’ll sign off on this topic now and thank the moderator for their patience; I’m a newbie here and still not sure when posts or comments manifest, hence my double above.

                    [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Your new name should also differentiate yourself from our many community members named “Dave” or “David.” Thanks. /~Rayne]

        • Dave says:

          To the moderator. My gentle pun acknowledgement to punaise on an arcane reference gets the ax? OK…. Hey: go listen to some Monk, treat yourself to a little fine music if you are at all open minded…his album with Coltrane is a good place to start.

    • earlofhuntingdon says:

      Not much of an issue. The Special Master’s costs are minor – he’s already compensated as a senior federal judge in the EDNY. Miscellaneous costs would probably be billed as administrative expenses. Failure to pay could be dealt with in short order.

      • Shadowalker says:

        I think the funds were for his assistant. Which the government was paying upfront and then would collect from the plaintiff at a later date. That was another delay tactic because Trump didn’t want to pay, so the government caved a little and would go after the funds later just to speed things up. That’s not how this works, since the government is usually the one requesting a special master, but those involve search warrants at law offices and is supposed to protect the lawyer’s other clients who may not be related to the case. That’s how messed up Cannon’s order was since she was the one doing the order.

        • smf88011 says:

          I wonder if Trump allows the bill to go unpaid if he will be having it come out of his tax refunds like student loan borrowers that default. Oh, wait!!!!

    • smf88011 says:

      Let me correct you on your post. It should be “there is … the belief that some rules of law still exist in the USA”.

  3. earlofhuntingdon says:

    The 11th Cir. begins its dismissal of Trump’s jurisdictional arguments with a nice understatement:

    Plaintiff’s jurisdictional brief in the district court dispatched with all four of these [Richey] inquiries in a single paragraph. But Richey’s inquiry is not as simple as that filing made it out to be

    To use the correct legalese, Trump’s – and Cannon’s – arguments supporting Cannon’s exercise of equitable jurisdiction were absolute crap.

  4. Cosmo Le Cat says:

    This vindicates Arteberry, who expressed the unpopular opinion that the Appeals Court ruling would be based upon equitable jurisdiction. This decision is an important step in moving the investigation beyond the clenched fist of Judgeless Cannon.

    • earlofhuntingdon says:

      LOL. The 11th Cir.’s final judgment was always going to be based on jurisdictional issues, as evidenced by the earlier panel’s judgment, which focused on Trump’s failure to meet the essential first part of the four-part Richey test.

      Yes, although using the understated language of a typical appeals’ court, this judgment is as much of a slam on Cannon’s rulings as on the poor quality of lawyering offered up by Trump’s lawyers.

      • Arteberry says:

        Thanks (I think) Cosmo Le Cat for remembering. There is someone around here who never heard of equitable jurisdiction and asserted, therefore, that any such concept was not “real law,” had nothing to do with what the 11th Cir. would decide, and that anybody (like me) who thought otherwise should take a long walk off a short pier.

        However, my comment here on November 4 that subjected me to that blather also wondered about the scope of the 11th Cir.’s eventual opinion. Typically, appellate courts follow a process akin to the physicists’ principle of least action. The appellate courts like to find the narrowest way to dispose of the entire case, and that is what the 11th Cir. has rather predictably done here. Case dismissed for failure to establish equitable jurisdiction and that’s the end of it. Still, in early November, it was possible to hold out a little hope that the Court would also explicitly reject Trump’s claims of executive privilege and his bizarre interpretation of the PRA, for the reasons the government urged in its briefs. The reason it was possible to have some hope on this front was that in the prior motion for stay, the circuit’s three judge motions panel had adopted the government’s various arguments on these additional issues all the way down the line. And two of the judges from the motions panel wound up on the merits panel for the appeal as a whole.

        Today’s opinion of course follows the economical approach. It would have been nice for the government to be able to proceed with a a ruling already foreclosing or at least hindering Trump’s arguments when, post-indictment, he makes the inevitable motion to suppress the seized documents. Having the Court of Appeal already on its side with respect to key issues on the documents’ admissibility would have given the government a solid, additional hammer to use on defendants or witnesses before trial. Still, a narrow win is a win and I don’t think the government will be at a disadvantage going forward.

        • emptywheel says:

          Relatedly, sort of. There were 3 Grand Juries seated the day of the Jack Smith appointment. While I think it’s too early to conclude they were new GJs picking up the existing investigations, that’s a reasonable conclusion (for example, the reverse happened with Mueller–a new GJ started literally while he was closing his investigation). If so, it suggests that the investigation into Trump and Jan 6 is split into two — and two grand juries! — for some unfathomable reason.

          But if true (again, too early to be sure), then it seems more likely they would charge in DC. If they’re just charging obstruction, that is an easy decision. Not if they’re charging 793, unless they know of stolen docs in other states.

        • bmaz says:

          Hi there Arteberry. My name is bmaz, if you want to “blather” about me, use it. And here you are again falsely claiming that I had never heard of so called “equitable jurisdiction” when what I did was scoff at the proposition because it is ludicrous. In this case, even the 11th agreed. So you might want to slow your victory lap in your head.

          • Readonly says:

            For the record, bmaz responded to Arteberry’s Nov 4 post thus: “What is ‘equitable jurisdiction’ in relation to this case?? There is personal jurisdiction and subject matter jurisdiction. ‘Equitable jurisdiction’, what er that may be, is inapplicable.” From there he went on, as moderator, carefully to argue that Arteberry should “stuff it,” “screw off,” is “completely full of shit,” and can “fuck the hell right off with [his] garbage ‘equitable jurisdiction’ horse manure.” Meanwhile, the 11th Circuit ruling took the approach Arteberry predicted.

            • bmaz says:

              For the record…..And, yet, here I stand, correct in saying “equitable jurisdiction” was complete horse manure from the get go. Sure is swell that you and Arteberry think you are taking victory laps when even the 11th told you what garbage “equitable jurisdiction” was.

              Clearly, you do not “Readonly”.

              • smf88011 says:

                Yeah, bmaz, I have seen those posts on your part and saw that it was abundantly clear that the entire “equitable jurisdiction” was nothing but BS from the get go.

                I hope SCOTUS tosses the “independent state legislature” case out as quickly and as surely as how the 11th tossed this out. The framers of the Constitution had no intention to allow states to ignore the outcome of elections as chosen by the people. Our Founding Fathers must be spinning in their graves with the entire far right’s reinterpretations of the Constitution.

              • Readonly says:

                Arteberry’s Nov 4 post correctly pointed out that “the government says that under the Richey standards, Judge Cannon lacked equitable jurisdiction,” and that the 11th Circuit could “take the conservative approach and merely say the Trump civil action fails to pass the Richey standard” rather than weigh in substantively on executive privilege or the Presidential Records Act. You said then, “Courts operate off of real law, not that [‘equitable jurisdiction’, ‘natural justice’] garbage,” and, “Have you ever been in [a real court]? I have, both at the trial and appellate level. And I have NEVER heard an argument as to ‘equitable jurisdiction’. Never.” Now you say you were right all along that the district court erred in invoking equitable jurisdiction.

                In order to break my habit of reading only to comment here, I had to give myself a username and liked the irony of ‘Readonly’. But irony doesn’t always register. I get that you practice law. I don’t. Like Ms. Wheeler, I read texts for a living. But anyone can go back and read the posts in question. You don’t have to be a professional.

                • bmaz says:

                  Except I am a professional, was correct that “equitable jurisdiction” was garbage, and am still being chided by the likes of you and Arteberry. And, yes, I was right all along in that such a dipshit argument would not fly. And it did not.

                • earlofhuntingdon says:

                  Bmaz’s point was that equitable jurisdiction is rarely used, and not remotely applicable in this case. For Cannon to rely on it was not judging, it was advocacy on behalf of an individual plaintiff. The appeals court, in part, framed its argument around rejecting the outlandishness of her and Trump’s position. A less overtly partisan district court judge could have issued pretty much the same judgment in response to Trump’s original attempt to file his civil suit.

                  There were many reasons for the 11th Cir. to deal with only some of the issues Trump raised – and didn’t raise.

                  For one thing, it didn’t and shouldn’t have substantively dealt with the PRA. As Marcy pointed out, it was not part of the record before the 11th Cir. For another, it did raise the PRA, but as framing to point out that it was irrelevant as to whether the documents Trump held were subject to seizure, retention, and use by the government under a valid search warrant. They were.

                  • Readonly says:

                    Thank you, earlofhuntingdon, for a clear and civil contribution. Respectfully, though, the fact that the district court erred in claiming equitable jurisdiction isn’t at issue in the exchange here. (This is patent to anyone who has followed the case closely.) I was intrigued by the reference above to the earlier exchange between Arteberry and bmaz, and so I went back and read the Nov 4 posts at issue. Anyone who does the same will see that Arteberry’s original post was both correct and germane on this point, and that bmaz simply did not make then the argument he claims now to have been making. Rather, he responded in a way that shows him clearly, at that point in time, to have been mistaken, and he did so in the hectoring and even insulting tone that he persists in now. I would guess that Arteberry took exception to that tone. At any rate, I did.

                    There is nothing personal in my pointing this out (as bmaz seems to perceive). I don’t know either Arteberry or bmaz. Maybe there’s some history between them that I’m unaware of. And I actually appreciate in general that bmaz doesn’t suffer fools gladly; it’s a trait I share, and I expect a useful one as a moderator of this site, over and above the legal expertise he brings to bear. And while I’m empathizing, I’ll also cop to not always being quick to admit when I’m mistaken–and even to making a fool of myself sometimes, too. But in this case, neither the invective nor the obstinance are to the credit of either bmaz or this site.

                    • earlofhuntingdon says:

                      I disagree with your reading, patently even. For starters, I would say that Judge Cannon’s error in claiming to have equitable jurisdiction is the foundation for both the exchange here and for the 11th Cir.’s opinion. And tone policing is pushing a rope.

                    • Readonly says:

                      I’m afraid my meaning was somehow unclear, earlofhuntingdon. I don’t disagree at all about Judge Cannon’s error, or about the salience of the issue of equitable jurisdiction to this case–it is of the very essence. And the only one to suggest otherwise, as far as I have seen, is bmaz in that Nov 4 thread (which is the issue/exchange I was referring to, and is there for all to read).

                    • bmaz says:

                      Okay, so I went back and read my comments on “November 4” as you are suddenly here to extoll. I said then, as I will say now, “equitable jurisdiction” was a load of shit. And so the 11th found. If you, and Arteberry, want to keep making a mockery of yourselves flogging this false and dead horse, keep at it.

                      I never said I never heard of it, that was a flat out lie by Arteberry, and remains so, I said it was stupid and inapplicable. And so it was. So, the “obstinance” is on your part, and Arteberry’s. Wrong then, and you are wrong now. Lol, even the 11th Circuit agrees.

          • velcroman says:

            You did in fact scoff at the proposition of equitable jurisdiction, in an ambiguous way.

            Arteberry:
            “In a nutshell, the government says that under the Richey standards, Judge Cannon lacked equitable jurisdiction from the get-go.”

            bmaz:
            “What is “equitable jurisdiction” in relation to this case?? There is personal jurisdiction and subject matter jurisdiction. “Equitable jurisdiction”, what er [sic] that may be, is inapplicable.”

            Respectfully, could you please clarify your disagreement with Arteberry’s statement? Was this perhaps a misunderstanding, with both of you saying that equitable jurisdiction was improperly exercised?

    • Rugger_9 says:

      Does the citation of equitable jurisdiction in the 11CA opinion make it harder for SCOTUS or Justice Thomas to parachute in now to keep Judge Cannon’s mockery alive? It would seem so to me but IANAL.

      Perhaps the lawyers here can provide opinions about EJ versus the many other options for stomping on Cannon like they did.

      • earlofuntingdon says:

        Normally, the S.Ct. would limit itself to a review of the 11th Cir.’s judgment, not Cannon’s. Not much scope to overturn it without causing systemic havoc in the criminal justice system, an argument the 11th Cir. spells out in its closing paragraphs.

      • earlofhuntingdon says:

        In the ordinary scheme of things, the judgment that the 11th Cir. just rendered is all the stomping Judge Cannon will get. It’s anybody’s guess whether she will be the recipient of informal consequences.

        • Peterr says:

          It’s all the formal stomping she’ll get. The informal stomping — the snickers behind her back, the lack of invitations to speaking events at conferences and law schools, etc. — may continue for a while.

          And any decisions she makes in future cases that are appealed to the 11th Circuit will be met with “Oh, I remember her!” and those memories will not be happy ones. For her, that is. For the 11th Circuit, they may bring snorts and laughter.

          • smf88011 says:

            I really wish that there was a way to formally punish her for her actions. She was trying to rip up the rule of law just to support her political beliefs, and protect Trump.

          • Charles Wolf says:

            “… the snickers behind her back, the lack of invitations to speaking events at conferences and law schools, etc. — may continue for a while.” … unless she is selected to be some prominent orange magaloon’s running mate in ’24.

        • smf88011 says:

          I think it will be a 1 line entry refusing to even consider the appeal will be the outcome, even if it gets that far. The way that the 11th ruled I do not see any way that they will even consider it.

  5. Joe Buck says:

    So, is Cannon completely off of this case now (assuming, which I think is a safe assumption, that this ruling isn’t overturned)? Or does she have any remaining power to delay the investigation?

    • SaltinWound says:

      I hope she is off the case. Is the motion to unseal the affidavit still before her? Does this ruling make that go away too?

      • timbo says:

        It’s a direct order to dismiss the case to Judge Cannon and vacates all actions arising from Trump’s disjointed civil suit attempt.

  6. Peterr says:

    Judge Cannon to DOJ (paraphrasing here): “Do not bother me with the facts.”

    11th Circuit to Judge Cannon, cited above: “The district court was undeterred by this lack of information.”

    The snark is strong with this one.

    But the Trump/Judge Cannon position as seen in that whole search warrant/personal property discussion is hilarious. As the 11th Circuit pointed out, a search warrant is *designed* to seize personal property. That’s the whole point of a warrant. You can move to squash the subpoena, or fight the use of what was seized at trial, but you can’t stamp your feet, scream “MINE MINE MINE MINE”, and then hold your breath until your face turns blue and expect the government to return it to put an end to your tantrum.

    • Leoghann says:

      The idea of a face turning blue under all that orange makeup puts a really unpleasant picture into my mind.

    • smf88011 says:

      I completely disagree with your assessment of “…but you can’t stamp your feet, scream “MINE MINE MINE MINE”, and then hold your breath until your face turns blue and expect the government to return it to put an end to your tantrum.” Someone COULD do it but it doesn’t matter in the end. It just proves that you are a tantrum throwing toddler that would take their toys and go home if they could get away with it. They won’t be able to get away with it though.

  7. Amicus says:

    I think the money line comes towards the very end on page twenty.

    “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.”

    When you read that sentence in light of the court’s recitation of the facts it is an astonishing rebuke. The court is effectively saying: “Yes, the Department of Justice is investigating your property, and quite likely your conduct, in connection with the commission of very serious criminal wrongdoing and we find that astonishing. But you brought this on yourself, and they have every right to do so, and we – the judiciary – will not protect you from that. You reap what you have sown.”

    The other more hopeful takeaway is that this decision puts the stake through whatever ambitions Judge Cannon may have for higher judicial office.

    • Peterr says:

      It is indeed extraordinary for a former president to engage in conduct that created the need for the DOJ to seek, obtain from a court, and execute a warrant on the former president’s home.

      So Trump can take solace that he is indeed special, even if it’s not in the way he thinks he is.

    • Former AFPD says:

      Amicus, I agree with you wholeheartedly. I doubt that transfer from the branch court to the main courthouse of SDFL in Miami is coming anytime soon – among other promotions Judge Cannon may have had in mind.

      • smf88011 says:

        I think that the only way she will be able to sit at the judicial bench at the main courthouse of SDFL in Miami is if she takes a tour of the building and ignores the guide’s scolding her for even thinking about it.

        • Yet Another Cynic Philosopher says:

          Disagree. When the GOP takes over again, Cannon has proved her loyalty.

          She may be risible, but she gummed up the works for the entire fall on this one. Mission accomplished!

          • Former AFPD says:

            Yet, typically, the judges in the federal district decide when another judge gets to move from a branch courthouse to the main courthouse. Cannon sits in a branch court. Some judges like to stay in the branch courthouse for family or other reasons. Make no mistake, presiding in the SDFL courthouse in Miami is a big deal and a step up in prestige from the branch courthouse. So the GOP would not really have anything to do with whether a judge is assigned to sit in another location. Also, judges remember when another judge, especially a newly appointed judge, gets repeatedly and insultingly reversed by the federal court of appeals. Judicial memories are long. They remember these reversals and the stinging language used by the appellate court in disposing of what amounted to judicial stupidity.

    • SMF88011 says:

      I think so. I think you can look it up next to “alternative facts”.

      Mods – mistyped my username. Can you add 88011 after my SMF above?

      • nord dakota says:

        “combined question of alternative fact and alternative law”, isn’t that the legalese?

        Considering what a tangled up mess the plaintiff briefs and Cannon’s orders were, it’s a relief to cut to the chase

  8. Thomas-H says:

    This ruling will really burnish Judge Cannon’s reputation to the point that Fox News and OAN are probably clamoring for her to join their “news” teams! /s

  9. earlofhuntingdon says:

    Trump might well file for a rehearing en banc before the 11th Cir., or for an emergency appeal to the Supremes. But I think the 11th Cir.’s judgment makes success at the Supremes improbable. The facts are weak, the law is uniformly against him, and the lawyering he’s offered up so far is piss poor.

    Trump apparently manipulated the system sufficiently to get Cannon, who responded like a performing seal. But the conservative 11th Cir. has made clear that that’s it. His lawyers need either a better argument, or a better class of client (paraphrasing Judge Costanza’s comment to Ned Racine).

    • Peterr says:

      I’m trying to picture that conversation at Mar-a-Lago . . .

      Trump: Trusty, you really screwed this up. How are you going to fix it – a rehearing before the whole 11th Circuit, or take it to SCOTUS?

      Trusty: Uh, sir . . .

      Trump: That’s “Mr President”!

      Trusty: Mr. President, I don’t think this can be fixed.

      Trump: It can *always* be fixed. You just gotta get it in front of the right judge.

      Trusty: You appointed two of the three who ruled against us — in harsh and very specific terms.

      Trump: I knew they were weak, but I trusted Pence to give me good names. Damn him! Again! But SCOTUS . . . I appointed three of them, and Alito and Thomas worship the ground I walk on.

      Trusty: Uh, Mr. President, the last time we took something to SCOTUS, they sent it back without even a hearing.

      Trump, glaring: Well maybe I just need a new lawyer.

      Trusty, to himself: From your lips to God’s ear.

      Trump: What’s that? What did you say?

      Trusty: Nothing. Nothing at all. . . .

    • brucefan says:

      No problem at all with what they did, but why not rule on the PRA contention?

      I still remember the Florida Supreme Court’s (completely unnecessary) own goal in 2000.

      • earlofhuntingdon says:

        The 11th ordered Cannon to dismiss Trump’s civil action for lack of jurisdiction. Ordinarily, that moots any other argument, because it ruled that Cannon had no authority to hear the case – and any of its arguments – in the first place.

        The Court did address as much of the PRA as it needed to. That is, it didn’t need to address it beyond pointing out that regardless of whether the records were personal or presidential, they were subject to seizure under a valid search warrant, and Trump had established no legally cognizable claim to their return at this stage.

        • emptywheel says:

          The other thing is that the PRA, as argued in the hearing, was not technically before the 11th bc it was not argued below.

      • Peterr says:

        That’s incorrect.

        In the memo at the end of the 11th Circuit opinion, the Clerk of the Court writes this:

        The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk’s office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney’s fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.

        Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1

        That said, it’s one thing to apply for an en banc rehearing, and quite another for it to be granted. But the Clerk lays out the procedure for making an application, so it’s not prohibited.

  10. Dan W says:

    … assuming Trump makes a futile appeal to the Supreme Court, to whom does he request that the 11th Circuit order be put on hold pending appeal?

  11. joel fisher says:

    Trump’s resort to the courts is rarely about the merits. More often, it’s to put off into the future something he doesn’t like, to make himself out to be a victim, or grab a little publicity. People need to understand this: he’s already gotten 3.5 months that others don’t get. And the time is still running. (An en banc request on the 7th day, a request to Stonewall Thomas for a stay, a SCOTUS visit). If this is over before January, 2023, I’ll be surprised.

    • Scott Rose says:

      What you say is true as far as it goes, but it leaves out of account that Trump by his delaying actions significantly worsened his legal position in this matter.

      To put that another way, no sane attorney would have given Trump, as their first recommendation, to behave as he has behaved here.

      • Katherine Williams says:

        Trump may have believed the November “Red Wave” would happen. And with republicans back in power in the House & Senate, he could once again “get away with anything”.

        • smf88011 says:

          Delaying this coming out until after the election lessened the impact to the party’s election outcomes. I think what should be coming farther down the road for Trump would have resulted in a significant hit to the GOP’s election outcome – the Senate would have an even larger Democrat majority and the House wouldn’t have flipped.

      • joel fisher says:

        There’s a story that went around years ago in Traverse City, Mi about a custom glass order for Trump. Some fancy stuff and, of course, after delivery, Trump wouldn’t pay for it, or offerred less. Don’t know how the payment was resolved, but later some of the unique glass items were broken, Trump wanted more, and the glassmaker laughed at him…so, yes, normal Trump litigation behavior doesn’t always work. But, now, all he wants is time and he’s getting it.

        • smf88011 says:

          You are more than likely correct with the entire story and it is true. I used to do contract work for a company that did some work for one of Trump’s properties. They exceeded contract performance requirements and came in early. The bill was sent and never paid. The owner of the business that was being stiffed by Trump contacted TO about getting paid. They told him that the work was shoddy, that they had to hire another company to fix it, and therefore they would not be paid.

          The owner did some checking, called back and demanded to know who supposedly did the work because they were able to get into the equipment remotely, which they couldn’t do if someone else did the work, and that there is nobody in that part of the country that was certified to do the type of work (a VERY specialized thing) and he had called the 8 companies in the country to see if anyone else worked on the project. None did.

          Shortly afterwards, he got a certified letter in the mail that basically said “We are not going to pay you a dime more. If you don’t like us, sue! We have more money than you and can put this off as long as we want”

          The ultimate outcome was the owner of the business having to shut down his company because he couldn’t afford to pay the legal bill to get paid, that he had borrowed heavily to buy the equipment that was used, and couldn’t meet payroll/expenses without that contract being paid.

          • earlofhuntingdon says:

            Seems to describe Trump’s standard business model, which he must think makes him look like a Mafia don. It also describes the special treatment Trump thinks he’s entitled to and how he organizes it.

            And yet, owing to his reckless management, he would be appreciably richer if he had just put his curiously large inheritance into stock index funds.

            • nord dakota says:

              IDK if a Mafia Don would last with this model. Like, if Sam the Slime was ordered to do a hit, completed the hit on time and maybe added an extra dash of fingernail removal and elbow-smashing before completed the job, The Don would recognize it as a job well done. I think you would only get punished for ACTUAL shoddy work. I think it would also be easier for the people who do business with him if the followed racketeering rules.

              • earlofhuntingdon says:

                Trump is constitutionally unable to follow any rules, even his own. Elmo seems built the same way.

  12. Peterr says:

    When I was in second grade, my teacher gave the class a one page test. At the top of the page, it said “Read through the whole test before beginning.” This was followed by a series of directions, many of which involved things like getting up from your desk and touching all four walls of the room, crowing out loud like a rooster, and clapping your hands ten times. The last item on the test was “Ignore all the previous directions, write your name on the top of the page, turn it over, and sit quietly until the teacher collects your test.” As you might imagine, the room was filled with all kinds of clamour and noise, until people got to that last point and sat down with a “Oh Shoot!” as they realized they had screwed up and not read through the whole test first as directed at the top. As you can tell, this left a lasting impression on me that has persisted for decades. Following directions matters.

    Trump and Trusty obviously never had a second grade teacher like mine, who could have taught them that following directions matters.

    Here’s how the 11th Circuit opens the discussion of prong two of the Richey test:

    The second Richey factor is “whether the plaintiff has an individual interest in and need for the material whose return he seeks.” . . .

    Sounds pretty straightforward, but apparently not straightforward enough for Trump and Trusty. Skipping past the details of the discussion, as the 11th Circuit takes apart Trusty’s arguments piece by piece, here’s how the 11th Circuit concluded this section, in blunt and direct language (emphasis in the original):

    Having failed to show his own need, Plaintiff attempts—as he did in the district court—to reverse the standard, arguing that the government does not need the non-classified documents for its investigation. This is not self-evident, but it would be irrelevant in any event. Plaintiff’s task was to show why he needed the documents, not why the government did not. He has failed to meet his burden under this factor.

    Following directions matters, whether you are taking a test in a small-town second grade classroom or arguing before a three judge panel of the 11th Circuit Court of Appeals. I fear, however, that as direct as the 11th Circuit has tried to be here, it is still too subtle for Trump.

    • P J Evans says:

      I didn’t meet that one until 8th grade, and yep. (It wasn’t noisy: that wasn’t how it was written.)

      • Peterr says:

        That’s probably a difference in the 8th grade test vs the 2nd grade test. You got the advanced version! For second graders, it was the noise (and thus the public humiliation) that made the point.

    • Peterr says:

      Attached at the very end of the opinion is a two page memo from the Clerk of the Court to the parties in the case. The memo provides the directions that must be followed if you intend to appeal the decision of the panel.

      I’d like to think this is standard procedure by the Clerk, and it is a form memo that gets attached to every opinion. Given what I wrote above about Trump not following directions, however, perhaps I’m being generous here.

      • Purple Martin says:

        I had recalled something about an 11th Circuit rule restricting en banc appeals, and got this explanation from an attorney practicing in the circuit

        The order in the case states: “Absent a stay or withholding of the mandate in the appeal to which this order is appended, the clerk is directed to issue the mandate after seven (7) days of the date of this opinion. Consistent with Eleventh Circuit Rule 41-2, the clerk is directed to provide the active members of this Court with notice of the issuance of this opinion and our direction to expedite issuance of the mandate.”

        Rule 41-2 states “In any appeal in which a published opinion has issued, the time for issuance of the mandate may be shortened only after all circuit judges in regular active service who are not recused or disqualified have been provided with reasonable notice and an opportunity to notify the clerk to withhold issuance of the mandate.”

        So a judge who thinks Trump deserves en banc rehearing can speak up in the next week. But Trump (if I read rule 41 correctly) can not delay it unilaterally by filing motions for rehearing as he could in an ordinary case.

  13. David F. Snyder says:

    I first saw the headline on the WaPo site, read the Bartlett/Perry piece, and they did not mention the order to dismiss. Shoddy reporting? Or just plain clueless? Anyway, I’m grateful emptywheel is here with clear reporting and analysis.

  14. JonathanW says:

    Dr Wheeler, the court seems to address, on page 17, the point you addressed about the “sensitive” documents, and the threat of them being disclosed by the government. I’m somewhat new (that’s an understatement) to reading appeals court decisions, but am I right that the way they addressed that point was particularly snarky? Something like “the gov won’t disclose classified documents because that’s illegal and, for other sensitive documents (such as his doctor’s note that was already disclosed by him) that’s not a good reason to stop a search warrant because it happens in many criminal cases.”

    • Peterr says:

      You catch on fast. Any argument that begins “But the DOJ might . . .” is likely to get dismissed, and the more it gets repeated, the more likely the snark will come to the surface.

      • JonathanW says:

        Thanks for the reply Peterr. And yet, somehow, Judge Cannon must have missed the memo about how such arguments are invalid, because IIRC she made this a central point in her reasoning.

        This really crystalizes something I keep coming back to wondering: to what extent did Judge Cannon understand how wrong her reasoning was? And if she did understand it, why was she willing to do it? Or was it a rookie mistake? Or did she really believed her own logic and is surprised at it being overturned on appeal?

        • smf88011 says:

          My theory is that she knew this was going to get thrown out but did it to delay the bad news until after the election. It is also my theory that she knew that if this case proceeded full-speed ahead, that it would be a significant, negative impact to the GOP at the election – the Senate majority would be significantly larger and the Democrats would have kept the House.

          • earlofhuntingdon says:

            I think that’s right. As EW has repeatedly said, Cannon was crafty, not ignorant, in her rulings.

            Cannon demonstrated that she is primarily a political animal. She had elite training and experience and knew exactly what she was doing for Trump. Yet, she was willing to deeply embarrass herself and her profession to promote her political patrons.

          • Pat88 says:

            What I find particularly humorous about the whole sad affair is that Trump affirmed, over and over, in filings sworn to be true, that 1) he was knowingly in possession of dozens of classified documents, and that 2) his assistant had access to the documents, as did a number of other people who do not have clearances.

            Whether or not the idea was to play a game to reduce a supposed effect on the midterm elections, he literally admitted his guilt in violating the Espionage Act.

            (sorry if this wasn’t the number on my nym that I chose before.)

  15. The Old Redneck says:

    It’s obviously good that the Eleventh Circuit followed the law on this. But Trump is playing a different game than success on the merits. He already managed to screw this case up for months. It’s easy to blame Judge Cannon, but the truth is that he would have appealed if she’d dismissed his case on day one. Trump would have done whatever it took to throw a monkey wrench in the process.
    Now he’s hoping the new House leadership will undermine the case against him under the guise of “oversight.” Lawsuits and appeals, in other words, are just a way to filibuster until you have the political environment in place to protect you. The real interesting question is whether the House leadership (other than Jim Jordan of course) will play along. But after the midterms they may feel like he’s not worth the trouble.

  16. Sam Wellington says:

    I’m glad they made a mockery of Cannon. On an unrelated note: does anyone else think the FBI effed up by letting Trump take his time to return some classified docs in an envelope (thereby removing them from the boxes they were in and thus preventing the FBI from getting finger prints and placing them with other objects in the boxes) rather than not immediately getting getting search warrant?

  17. punaise says:

    11th Circuit to Trump: You’re not Special

    Riffing on the title of this post, through the lens of two songs by The Pretenders.

    From Brass in Pocket

    ‘Cause I going make you see
    There’s nobody else here, no one like me
    I’m special
    (Special)
    So special
    (Special)
    I got have some of your attention, give it to me

    to the caustic energy of

    Tattooed Love Boys

    But you mess with the goods doll, you gotta pay.
    I shot my mouth off and he showed me what that hole was for.
    Stop sniffling
    You’re gonna make some plastic surgeon a rich man

    • bmaz says:

      Chrissy and the Pretenders are one of the most incredible live acts most will never see. If you ever get the chance, take it and go.

      • theartistvvv says:

        Agreed, saw her live a cuppla times, ’80 and 2010 – both great.

        Her autobio is a hoot.

        And she now has a signature Tele …

        • punaise says:

          Definitely a favorite from that era. Damn, she had some attitude and some chops! (says the non-guitar player). The 7/16 time signature in Tattooed Love Boys is just subtle enough to keep you off balance and feel uncomfortable.

          • vvv says:

            Jim Kerr.

            But also, Ray Davies, and their cover of his “Time to Stop Sobbing” was one of the hits that broke them big – I remember sing-alongs in the college bars, right along side, “Roxanne”.

            An old girl friend recently bought me the box sets of the first two Pretenders albums (I hung the vinyls in picture frames) and they have some live concerts – the whole band was excellent musicians.

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