On August 5, 2022, a search warrant was issued by federal magistrate judge Bruce Reinhart of the U.S. District Court for the Southern District of Florida that authorized the search of Mar-a-Lago, the residence of former president Donald Trump, in Palm Beach, Florida. On August 8, 2022, the FBI executed the warrant and seized over 13,000 documents. On September 5, 2022, district judge Aileen Cannon ordered the Department of Justice to halt its review of the documents and granted the request of the former president for the appointment of a special master to review the seized documents for executive privilege and attorney-client privilege. On September 15, 2022, Judge Cannon appointed Judge Raymond Dearie of the U.S. District Court for the Eastern District of New York as special master. On December 1, 2022, the U.S. Court of Appeals, 11th Cir., based in Atlanta, Georgia, ruled that Judge Cannon did not have jurisdiction to block the United States from using lawfully seized records in a criminal investigation.

1. Introduction

The affidavit in support of the application for the search warrant stated that the government is conducting “a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records.” (here) The investigation was triggered by a referral sent to the Department of Justice by the United States National Archives and Records Administration (NARA) on February 9, 2022. The referral stated that on January 18, 2022, in accordance with the Presidential Records Act (here), NARA received fifteen boxes of records from the office of the former president that had been transported from Mar-a-Lago. NARA reported that the fifteen boxes contained “highly classified documents intermingled with other records.”

2. The Investigation

The FBI opened a criminal investigation to determine: (a) how the documents with classification markings and records were removed from the White House and ended up in storage at Mar-a-Lago; (b) whether the storage locations at Mar-a-Lago were authorized locations for storage of classified information; (c) whether any additional classified documents or records may have been stored in an unauthorized location; and, (d) identify any person who may have removed classified information without authorization.

The warrant authorized the seizure of “physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed” in violation of three federal statutes. (here) First, 18 U.S.C. s. 793, enacted as part of the Espionage Act, makes it a crime to retain or disclose documents related to national defense which could be used to harm the United States or aid a foreign adversary. (here) Second, 18 U.S.C. s. 2071 criminalizes the theft or destruction of government records, regardless of their relevance to national security. (here) Third, 18 U.S.C. s. 1519, enacted as part of the Sarbanes-Oxley Act, makes it a crime to destroy or conceal documents or records, regardless of their relevance to national security, with “intent to impede, obstruct or influence the investigation or proper administration of any matter” within the jurisdiction of any federal department or agency. (here)

3. What is a Special Master?

The role of a special master is to supervise those subject to an order of a court to ensure that the order is followed and to report to the issuing judge on the activities of the person or entity being supervised. Activities carried out by special masters are as diverse as the actions taken by courts. (here) According to the American Bar Association, special masters often accompany police officers in searches for documentary evidence in the possession of lawyers. (here) In the federal courts of the United States, which is the case here, special masters are appointed under Rule 53 of the Federal Rules of Civil Procedure which provides for the appointment of a special master if one of three criteria exists: (a) to perform duties consented to by the parties; (b) to hold trial proceedings without a jury where some exceptional condition exists or to perform an accounting or resolve a difficult computation of damages; or, (c) address pretrial or post trial matters that cannot be effectively and timely addressed by a judge or magistrate judge. (here)

4. The Opinion of the Eleventh Circuit

The unanimous per curiam opinion, styled as Donald J. Trump v. United States, is a ruling in a civil action brought by the former president against the government after it executed the search warrant at his residence. (here) Mr. Trump advanced four arguments: (1) a court-mandated special master review process was necessary because the government’s Privilege Review Team protocols were inadequate; (2) various seized documents were protected by executive or attorney-client privilege; (3) he could have declassified documents or designated them as personal rather than presidential records; and, if all else failed, (4) the government’s appeal was procedurally deficient. The opinion begins with the observation that the dispute ignored one fundamental question – whether the district court had the power to hear the case at all.

Federal courts in the United States are of limited jurisdiction. They only possess the power authorized by the constitution and statute which is not subject to expansion by judicial decree. An exercise of equitable jurisdiction, such as that invoked by Judge Cannon in this case, should be “exceptional” and “anomalous”. The controlling precedent, Richey v. Smith, was decided in 1975 and limits equitable jurisdiction by a four part test. (here) The four factors are: (1) whether the government displayed a “callous disregard” for the plaintiff’s constitutional rights; (2) whether the plaintiff has an individual interest in and need for the material he seeks to have returned; (3) whether the plaintiff would be irreparably injured by denial of return of the property; and, (4) whether the plaintiff has an adequate remedy at law for the redress of his grievance. In applying the Richey test to Mr. Trump’s arguments, the panel began with this conclusion: “[W]e 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.”

There was a “recurring theme” throughout Mr. Trump’s arguments which, if consistently applied, “would allow any subject of a search warrant to invoke a federal court’s equitable jurisdiction.” First, the “callous disregard” standard was not met, absent which courts “will not intervene in an ongoing investigation”. This restraint guards against needless judicial intrusion into the course of criminal investigations which is a sphere of power reserved for the executive branch. Second, there was no “showing” that Mr. Trump needed the documents. The courts have emphasized the importance of identifying “specific” documents and explaining the harm from their seizure and retention. Such “specifics” were absent. The plaintiff had to show why he needed the documents, not why the government did not. Third, Judge Cannon’s “unsupported conclusion” that government possession of seized evidence creates an “unquantifiable” risk of public disclosure was not enough to show that the plaintiff faced irreparable harm. Fourth, the threat and stigma of future prosecution is an “ordinary experience” that cannot support “extraordinary jurisdiction”.

This left only one possible justification for the exercise of equitable jurisdiction – that Mr. Trump was a former president of the United States. Although it is extraordinary for a warrant to be executed at the home of a former president, to create a special exception on that basis would defy the “foundational principle” that the law applies equally to all. “We cannot write a rule,” the panel concluded, “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.”

5. In the Media

Judge Cannon’s order had received criticism from a broad spectrum of the legal community. In an article titled Appeals court rejects Trump lawsuit in Mar-a-Lago documents case published by POLITICO on December 1, 2022, Josh Gerstein and Kyle Cheney reported the views of both liberal and conservative attorneys. (here) The former “noted that such oversight is rarely imposed when sought by targets of criminal investigations, with rare exceptions almost always involving searches of law offices.” The latter, who support strict construction of the separation of powers, “complained that the process Cannon ordered intruded on the executive branch’s right to pursue its investigation without interference from the judiciary.”

The result is therefore not surprising because the appointment of a special master is rare. In an article titled Trump Mar-a-Lago special master struck down by appeals court published by The Washington Post on December 1, 2022, Perry Stein and Devlin Barrett said the panel had expressed concern during oral argument that Judge Cannon’s order set a troubling precedent – allowing the target of a search warrant to intervene in an investigation before an indictment is issued. (here) In the written ruling, the panel invoked the doctrine of judicial restraint that, in this case, guards against “needless judicial intrusion” into the course of criminal investigations. Otherwise, the panel emphasized, “a flood of disruptive civil litigation” would surely follow.

A week later, in an article titled Special Master’s Review in Trump Case Ends as Appeal Court’s Ruling Takes Effect published by The New York Times on December 8, 2022, Charlie Savage and Alan Feuer described the case as “unusual” because Judge Cannon’s order for a special master “treat[ed] Mr. Trump differently from ordinary targets of search warrants.” (here) The litigation also undercut Mr. Trump’s public assertions that “he had declassified everything he took to Mar-a-Lago before leaving office,” they added. Mr. Trump’s lawyers had resisted the invitation of Judge Dearie, the special master, to repeat that claim in court.

6. Conclusion

Although Mr. Trump had released some classified documents to federal authorities before the search warrant was issued, federal agents established probable cause to believe additional documents containing classified National Defense Information or presidential records subject to record retention requirements remained at Mar-a-Lago. The affidavit also established probable cause to believe that evidence of obstruction “will be found” at the premises. On August 9, 2022, the day after the search, The New York Times reported that, throughout his presidency, “Mr. Trump was disdainful of record-preservation laws, and was known to tear up documents and in some cases to flush them down toilets.” (here) Whether documents are in the hands of the Department of Justice, or in toilets, the special master litigation has ended. The Eleventh Circuit vacated the order appointing the special master and remanded the case to Judge Cannon with instructions to dismiss the underlying civil action. The window has now closed on Mr. Trump’s right to seek a review by the Eleventh Circuit en banc or by the U.S. Supreme Court. On December 12, 2022, Judge Cannon formally dismissed the case for “lack of jurisdiction”. (here)