I’ve been reading about Trump’s new lawsuit in Florida asking for “oversight” about the government documents seized by the FBI at Mar-a-Lago. But the coverage was confusing, and I didn’t write about it: I didn’t understand what Trump was claiming, though I saw that the judge was dubious. When Ken Kukec, who knows his law, emailed me a short take on it, I asked him if he could expand it into a longer explanation. He kindly agreed, so I’ve put it, along with his title, below the line.
Trump-Appointed Judge to Trump Lawyers: “WTF?”
This past Monday, lawyers for Donald Trump filed with the federal district court for the Southern District of Florida a hybrid document entitled “Complaint/Motion for Judicial Oversight and Additional Relief.” (You can read that document here.) It is unclear precisely what Trump’s lawyers are asking the court to do, aside from seeking appointment of a special master to determine whether any of the documents seized from Mar-a-Lago are “privileged”—even though presidential records presumably would not contain any documents subject to Trump’s attorney-client privilege with his private, outside counsel, and even though any claim of “executive privilege” belongs not to Trump but to the presidency itself and, thus, can be asserted only by the current occupant of the White House, as the courts have determined.
Nevertheless, by filing the document as an original complaint under a new civil case number, Trump’s legal team appears to be engaged in forum-shopping by doing an end-run around Bruce Reinhardt—the federal magistrate who signed the search warrant for Mar-a-Lago and who presumptively has original jurisdiction over any legal issues arising from the execution of the search warrant or relating to the documents seized therein—and a judge who Trumpworld has now branded a “deep state” enemy. The more deplorable elements of Trumpworld have even attacked Reinhardt online with anti-Semitic slurs and death threats, so that the shul that Magistrate Reinhart and his family attend has temporarily discontinued its weekly beachside Shabbat services.
The quality of the Trump team’s legal work has drawn derision from the broader legal community. See, e.g., here. The document at issue reads not so much like an actual legal pleading as a press release—one dictated by Donald Trump himself (albeit corrected for the customary errors in grammar and syntax). Starting with the first paragraph of the introduction, it is full of braggadocio about what a formidable presidential candidate Trump will be in 2024 (even though he has yet to make a formal announcement of his candidacy) and about how crucial Trump’s endorsements have been to the outcome of Republican primary races for the upcoming midterm elections. It also quotes verbatim passages from Trump’s social-media posts grousing about the UNFAIR RAID on his Mar-a-Lago home. And it quotes the private message Trump sent to attorney general Merrick Garland after the raid, warning Garland that Trump has been hearing from his supporters all over the country about how “angry” they are, that the “heat” and “pressure” are “building up,” but that Trump is willing to do what he can to bring the temperature down. This is the equivalent of a mobster running a protection racket saying to the shopkeeper, “Nice place you got here; be a shame if anything happened to it.”
Because the document was filed in part as a “complaint” in a new civil case, it has been assigned (at least for the time being) to a federal district court judge, the Hon. Aileen M. Cannon, a 2020 Trump appointee. It is unclear from publicly available documents whether this assignment came about because Judge Cannon is the “duty judge” handling miscellaneous matters this week—just as Magistrate Reinhart was the “duty magistrate” during the week of August 1, 2022, and thus handled the government’s application for the Mar-a-Lago search warrant—or whether she was assigned the case through the blind-draw system used to select judges to handle newly filed cases.
In any event, the preliminary indication is that Judge Cannon sees the Trump team’s pleading for precisely what it is and what it isn’t. Instead of entering the type of preliminary written order that would be standard in such cases, Judge Cannon seems to have shown Trump’s legal team the back of her hand by merely making an entry in the clerk’s docket sheet directing the Trump team to supplement its motion by this Friday to tell the Court exatctly what it is they want, and why this case is separate from the proceeding pending before Magistrate Reinhart. That docket entry reads in its entirety as follows:
“PAPERLESS ORDER: The Court is in receipt of 1 Plaintiff’s Motion for Judicial Oversight and Additional Relief. To facilitate appropriate resolution, on or before August 26, 2022, Plaintiff shall file a supplement to the Motion further elaborating on the following: (1) the asserted basis for the exercise of this Court’s jurisdiction, whether legal, equitable/anomalous, or both; (2) the framework applicable to the exercise of such jurisdiction; (3) the precise relief sought, including any request for injunctive relief pending resolution of the Motion; (4) the effect, if any, of the proceeding before Magistrate Judge Bruce E. Reinhart; and (5) the status of Plaintiff’s efforts to perfect service on Defendant. Signed by Judge Aileen M. Cannon on 8/23/2022. (AMC) (Entered: 08/23/2022)”
To add insult to injury, the local Florida lawyers on Trump’s team weren’t even able to manage to correctly file a request to allow his out-of-town lawyers to make a special appearance in the Southern District of Florida — known as a motion to appear pro hac vice. Instead, the clerk-of-court rejected the Trump team’s effort to do so as deficient, instructing them to refile their motion in accordance with the district’s local rules, and letting them know they could find a sample motion on the court’s website.
If I had to guess, I’d say that Judge Cannon will ultimately tell Trump’s lawyers to follow regular order by making their motion in the first instance to Magistrate Reinhart and, if they don’t obtain relief they deem adequate from there, then—and only then—to file an appeal (technically a “motion for de novo review”) with the district court. (NB: federal magistrates are not Article III judicial officers appointed for life by the president pursuant to the US Constitution; they are, instead, appointed for a term of years by the judges on active duty in the district — roughly analogous, I suppose, to untenured junior faculty members in academia.)
Come Friday, we shall see what Trump and his lawyers have to say for themselves.