This is my umpteenth report on the Trump stolen documents case. To continue following my peregrinations through the courts covering this nonsense, consider becoming a paid subscriber and help me find my way.
In addition to losing at the Supreme Court on Tuesday in his appeal to keep his tax records out of the hands of Congress, Trump had a bad time at the 11th Circuit Court of Appeals, too.
Three Republican-appointed judges – two put on the bench by Trump and one by George Bush – expressed barely concealed skepticism of arguments put forth by James Trusty, the attorney for Donald Trump, who faced off against the Department of Justice in its appeal seeking to cancel the special master appointed by another Trump judge, Aileen Cannon of Florida.
The case has been dragging its way through the courts since Trump petitioned Cannon to appoint a special master to review the thousands of documents seized by the FBI last August from Trump’s residence and office at his Mar-a-Lago resort/hotel/club in Palm Beach, Florida. This is the second time the DOJ has appealed to the 11th Circuit about the matter.
In its first appeal, the DOJ sought to have 103 folders of classified documents released from the review by the special master so they could be used as evidence in its criminal investigation of the former president. The 11th Circuit granted that appeal in September. Two of the judges who heard the case today signed the decision in September – Judges Andrew L. Brasher and Britt C. Grant – in ruling unanimously against Trump. They were joined on Tuesday by the chief justice of the 11th Circuit, William H. Pryor Jr., the former attorney general of Alabama.
Trump went to court today with an argument the DOJ called “novel and erroneous” in the brief filed last week. The Trump position on the documents he removed from the White House when he left office in January of 2021 and took with him to Mar-a-Lago was that because he was president at the time when the boxes of documents were put on a truck and driven to Florida, they were ipso facto his property.
As the DOJ pointed out in its brief last week and on Tuesday during oral arguments, that argument flies in the face of the Presidential Records Act, a federal law passed by Congress after Watergate, which mandates that all documents and materials produced or used by a president while in office are the property of the government, not the individual serving as president. Perhaps realizing the ”I took them, so they’re mine” argument wasn’t holding much water, Trump’s lawyers took another slant on the case. The appointment of the special master was necessary and should be maintained, they said, because the search warrant executed in August was a “general warrant” and thus illegal.
“You didn’t establish that it was a general warrant,” Pryor told Trusty bluntly.
Judge Pryor didn’t think much of Trump’s lawyer’s arguments, and neither did the other two Trump-appointed judges, who ruled in September that Trump had failed to establish that the government had shown “callous disregard” for his constitutional rights in seeking the warrant from a federal judge and searching his home and office. The failure by the former president to prove callous disregard was “reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here,” the 11th Circuit wrote in September.
Judge Pryor told Trump’s lawyer that he had to accept that not even Cannon had ruled that the government had shown callous disregard for Trump’s rights. “Your brief doesn’t even attempt to argue that it [callous disregard] was satisfied,” Pryor told Trusty.
Trump’s lawyers told the court that the search of Mar-a-Lago was illegal because the FBI had taken Trump’s golf shirts and a photo of Celine Dion along with the classified documents it seized in August. Pryor dismissed that argument with this: “The problem is, you know, 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.”
At another point, Trump’s lawyer was cut off abruptly by Judge Grant when he called the search of Mar-a-Lago a “raid.” “Do you think a raid is the right term for the execution of a warrant?” Grant asked Trusty, who quickly apologized for using what he called “a loaded term.”
Trusty tried to argue that a search of a former president’s residence was a special case. Pryor wasn’t having that, either. “Other than the fact that this involves a former president, everything else about this … is indistinguishable,” Pryor told Trusty, referring to the search warrant. “We’ve got to be concerned about the precedent that we would create that would allow any target of offense of a federal criminal investigation to go into district court and to have a district court entertain this kind of petition…and interfere with the executive branch’s ongoing investigation,” Pryor said.
He then went even further. “If you can’t establish that it [the search] was unlawful,” Pryor said, “then what are we doing here?” Trusty replied that the former president had asked for the appointment of the special master hoping that by going through that complicated process, he could prove that the search was unlawful.
Pryor expressed amazement at the brazenness of the argument: “The end object of the search [through the records by the special master] is to establish it was an unlawful seizure?” Pryor asked Trusty. A CNN reporter who observed the arguments described the incredulity frequently expressed by the judges this way: “Pryor’s facial expressions throughout suggested exasperation with the Trump team’s arguments, as he repeatedly shook his head as Trusty attempted to answer his questions.”
Folks, it’s never a good sign when the chief judge in the court of appeals hearing your case is shaking his head in disbelief.
Stay tuned. We’ll be watching for the court’s ruling and will report on it here.
Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.