Moksha wrote: ↑Sat Sep 24, 2022 9:11 am
Is Judge Canon going to reconvene her courtroom attempt to aid Trump?
The 11th Cir. stay applies only to the documents marked as classified. So, the Special Master process that Judge Cannon ordered continues for all the other things seized by the FBI. Trump and his lawyers will get to review the documents on a rolling basis. In a short period of time, they are required to designate any items or documents that Trump claims are personal and, therefore, potentially able to be returned under Rule 41(g). They also must designate any documents that Trump claims are protected by the attorney-client or executive privilege. The DOJ then has a short period of time to designate which claims of Trump they disagree with.
The items over which there is disagreement will be reviewed by the special master, who will write a report to Judge Cannon stating his opinion on the disputed items. Judge Cannon is the final decision maker and can accept or reject the report or any part of the report as she sees fit. The parties can then appeal her decision.
There are a couple of decisions that have to be made in addition to those outlined above. For example, if personal items are potentially evidence, the government has the right to retain them until completion of its investigation. Also, at some point Trump has to file either a motion for return of property or to suppress and has to persuade Judge Carrroll that he is entitled to relief. So far, what she has ordered is a process to give Trump access to the seized items so that he has the level of detail for each item that is needed to assert privileges or claim personal property on a document by document basis.
Also, keep in mind that all the 11th Cir. has done is issue a start over the documents marked as classified. That includes a necessary finding that the government is likely to win its appeal. And, usually, that’s how it works out. But the Court of Appeal doesn’t have a full record to review and it does not have the benefit of the extensive briefing that parties submit on appeal. So, sometimes courts that issued a stay end up changing their minds and ruling the other way on the merits of an appeal. I don’t think it’s likely at all in this case, as the case the panel relied on looks pretty solid to me.
There is also what I would describe as the elephant in the room: If you employ the panel’s reasoning in the opinion granting the state, it’s hard to explain why Judge Cannon has any subject matter jurisdiction at all. Unlike other potential affirmative defenses, lack of SMJ can never be waived and can be raised by any party at any time, and that includes the judge. In fact, arguably the 11th Circuit could have simply dismissed the entire case on its own motion for lack of SMJ.
So, Judge Cannon could simply decide she has no SMJ and dismiss the case. in my opinion, she should request briefing from both sides on the issue of SMJ in light of the 11th Cir’s citation of the Chapman case, which had never been cited to her until the 11th Cir. raised it.
As a war story, my first 9th Cir. appeal was a complete Dog of a case that was assigned to me because stuff rolls downhill. The lawyer on the other side has become an excellent appeal specialist (he would be on my short list). When the panel entered the courtroom, followed by their clerks, the judges had odd smiles on their faces and the clerks were openly smirking. The head of the panel announced that it didn’t appear that the Court had subject matter jurisdiction over the appeal, and gave us 15 minutes to review and address the issue. Now, they could have asked us to brief the issue before the hearing. But it’s possible that a clerk spotted the problem only as the panel was preparing for the argument. So, what the panel did was entirely correct: If there is no SMJ, doing anything other than dismissing the case is a waste of time and judicial resources.
So, it will be interesting to see what, if anything, Judge Cannon will do about the jurisdictional issue. She can take the position that the 11th Cir didn’t rule on the merits, so she’s not required to dismiss. Or, she can recognize that Chapman, which neither she or either party ever discussed, appears to be binding authority holding that she has no SMJ.
This all goes back to my puzzlement over why the government gave such short shrift to jurisdiction. A rule to live by that was pounded into me was “if there is a bona-fide SMJ Issue, lead with that. If you’re right, nothing else matters.” Instead, the government led with a sort of standing issue, and buried its single paragraph about jurisdiction late in the brief.
Which reminds me of another rule to live by: stuff happens.