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.
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Trump-Appointed Judge to Trump Lawyers: “WTF?”
Ken Kukec
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.
Reputable law firms have rejected working for Trump for many reasons (non payment, he won’t take advice, etc.). What is left is the bottom of the barrel shysters which is fitting for the orange grifter.
Thanks for this excellent summary!
I have a feeling that this is less Trump’s lawyers being incompetent (no firm can be this incompetent, right?), and more them following his incoherent orders. They surely knew when filing this how ridiculous it was, but they’re desperately trying to keep their high-profile client happy. That’s my best guess.
It is more a press release providing meat to his followers than a serious legal pleading.
From Matt Taibbi’s most recent, “The Great Disappearing Raid.”
Thank you for the summary. Trump’s legal strategy has been to throw everything against the wall and see if something sticks. Typically it doesn’t but Trump almost always scores at least some delay. Running out the clock seems like his approach here. Even if a special master is appointed, all Trump will get is time.
Since he doesn’t have a real defense for any of his criminal activities and bullshit antics, wasting time is really the only defense he has. Even the bottom-of-the-barrel lawyers that represent Trump know how to waste time in America’s clunky, inefficient legal system.
(Couldnt find another place to make this comment): Bari Weiss relies on the Great Barrington Declaration and its associated Brownstone Institute for her completely
unsubstantiated and politically motivated comments and those of Makary. These organizations are extreme right wing/neo con/libertarian conglomerates of the most
repulsive kind, and her reliance on them has exposed her own politics, which is not that of a honest reporter victimized and expelled by the NY Times but an apologist for mendacious right wing groups and individuals. Makary does have creds and is not anti vaccine but his essay on Weiss’site Common Sense is juvenile and nothing but
opinion and speculation. I’ll bet lots of people have been fooled by Weiss. Me? No longer. Very disturbing.
The one net positive that I can see about the efforts to get Trump by any means necessary is that “A Man for All Seasons” has now risen above the top 25 in sales in several categories on Amazon.
It is always enlightening to read the your perspective on legal matters, with your specialized knowledge on the subject. I don’t always agree with your opinions, but appreciate your expertise.
I can write with some competence about the creation, handling, storage, and disposal of classified materials, but it seems as if we have moved on from that part of the discussion.
My understanding of the current state of the PRA is that there is sort of a separation of powers between former presidents and the archivist. Specifically, while the archivist is directed to “assume responsibility for the custody, control, and preservation of, and access to” presidential records, it is the president who has discretion over classification of records as personal or presidential. “The PRA does not confer any mandatory or even discretionary authority on the Archivist to classify records. Under the statute, this responsibility is left solely to the President…The PRA contains no provision obligating or even permitting the Archivist to assume control over records that the President “categorized” and “filed separately” as personal records. At the conclusion of the President’s term, the Archivist only “assume[s] responsibility for . . . the Presidential records.”
Perhaps these points, from Judicial Watch vs. NARA, have been superseded. Logically, it would seem unwise to give the archivist plenary control over classification of presidential records, and the power to use the full power of the FBI and DOJ to enforce the archivist’s unilateral decisions.
All legalese aside, isnt Trump just flailing and stalling for time?