Many of the prohibitions in the initial set of amendments to the U.S. Constitution, known as the Bill of Rights, were enacted to prevent abuses known from the colonial period and from earlier British history, particularly regarding the procedures used by a royal court known as the Court of Star Chamber,1 which existed at the Palace of Westminster in London from about 1515 until it was abolished by Parliament in 1641 prior to the First English Civil War.
The Fourth, Fifth, Sixth, and Eighth Amendments’ prohibitions against compelled testimony as a witness against oneself; against the use of general warrants which allowed authorities to search a home for any evidence they could find without specifying the offense; against trials held in secret; against excessive fines and cruel or unusual punishments (like cutting off ears, branding cheeks, etc); were adopted with the history of the Star Chamber in mind. The Star Chamber was used by Charles I to exercise his personal rule without Parliament2; and also greatly restricted the freedom of the press, issuing a decree in 1637 prohibiting publication of books and pamphlets without a license, and prohibiting “seditious, schismatical, or offensive books or pamphlets” from being printed, among many other restrictions. These historical abuses were nearer in time to the Framers of our Constitution than the American Civil War is to us today.
When the government is now conspiring with social media companies to “fight misinformation,” thus limiting the freedom of the press, and abusing the civil and criminal law to punish political opponents, including an unprecedented and coordinated legal attack on the former President of the United States, with the apparent participation and instigation of the current President, who has publicly been branding his opponent’s supporters as a “threat to democracy,” we must be aware of the historical parallels, and how these actions attack the principles embodied in the Bill of Rights as our shield against the return of the abuses of power of old.
(“Dark Brandon” creeps out the nation with lighting design, Philadelphia, PA, 9/1/2022)
The decision last Wednesday of the three-judge panel of the U.S. Court of Appeals for the 11th Circuit granting the government’s motion for a partial stay in the Mar-a-Lago documents matter goes beyond what some, including myself, expected, and raises some troubling legal issues as the government continues its criminal investigation. In its order, the 11th Circuit not only partially lifted (as to the 100 or so documents having classified markings) the temporary injunction put in place by the district court which prohibited the government from using the seized materials in its criminal investigation until review by the special master had been completed, it eliminated the district court’s requirement that the government produce all the seized materials, (including the documents having classified markings) to the special master for his review.
In the government’s reply to President Trump’s response it had argued that the appeals court “has jurisdiction to review the entire order—including the portion directing that “[a] special master shall be appointed to review the seized property.’” (p.7 of government’s reply). It’s notable that the 11th Circuit didn’t take the government up on this particular claim, and left the special master in place, despite unjustifiably exercising its pendent jurisdiction3 to keep the special master from reviewing the documents having classification markings.
“Plaintiff4 argues that we ‘lack[] jurisdiction to review the special master’s authority.’ But our order does not address the special master’s authority; it addresses the district court’s orders as they require the United States to act and to refrain from acting…”
(fn. 3, p.15 of 11th Circuit’s opinion)
The appeals court is being a bit disingenuous here. Their order actually does "review the special master's authority," because it carves out the allegedly classified documents from that authority. But from “a certain point of view,” it only pertains to what the government is required to do.
As the government had argued, now it does not have to produce the documents having classified markings to the special master or to President Trump’s attorneys, under the district court’s modified order. Having reviewed the 11th Circuit’s opinion and the case law it cites, I’m persuaded that they ruled correctly on partially staying the district court’s injunction, however the appeals court’s opinion gives short shrift to explaining why the U.S. would suffer irreparable harm by the special master’s review, beyond the “the government says it will.” The district court had earlier described the government’s claim that it would suffer irreparable harm from its original order due to “unnecessarily requiring the government to share highly classified materials with a special master” as “meritless,” but the 11th Circuit apparently bought that part of the government’s argument, too.
The United States also argues that allowing the special master and Plaintiff’s counsel to examine the classified records would separately impose irreparable harm. We agree. The Supreme Court has recognized that for reasons ‘too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.’ Egan, 484 U.S. at 529 (quotation omitted). As a result, courts should order review of such materials in only the most extraordinary circumstances. The record does not allow for the conclusion that this is such a circumstance.
(p.27 of 11th Circuit’s opinion)
An unprecedented FBI raid on a former President is somehow not a “most extraordinary circumstance.” And at the same time, in order to defeat the government’s motion for a partial stay, and get to examine the documents, the appeals court effectively demanded that President Trump must have evidence in the record about the declassification and possible executive privilege claims regarding specific documents before the government has to reveal which documents they are, or what they contain.
Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents. See Doc. No. 97 at 2–3., Sept. 19, 2022, letter from James M. Trusty, et al., to Special Master Raymond J. Dearie, at 2–3. In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal. So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.
(p.19 of 11th Circuit’s opinion)
If anyone knew what they were, it might, however.
Mike Davis (@mrddmia) has argued that the documents the government was seeking in the FBI raid are the records President Trump declassified on January 19, 2021 related to the FBI’s “Crossfire Hurricane” investigation of his campaign and early presidency that was based on the so-called “dossier” of “Russian collusion” allegations created and paid for by Hillary Clinton’s campaign, and pursued by the James Comey-led FBI, despite knowing they were baseless.
The timeline is certainly suggestive. The affidavit used for the search warrant stated that “According to a CBS Miami article titled ‘Moving Trucks Spotted At Mar-a-Lago,’ published Monday, January 18, 2021, at least two moving trucks were observed at the PREMISES on January 18, 2021.” (¶30 of Affidavit.) Of course, it’s not that suspicious that moving trucks would be present at the “Southern White House” during the last days of the Trump Administration, but moving copies of the documents there with his personal records while it was still an “authorized” location for classified information, and then declassifying them the next day would be a plausible way to do it. Perhaps the issue is that President Trump retained an unredacted copy of the “Crossfire Hurricane” binder, parts of which, according to the declassification memo, would potentially still be classified?
The government has gone to extraordinary lengths and some rather implausible arguments to conceal the nature of the seized “documents having classification markings” from review by the special master, and the 11th Circuit’s opinion seems to have ignored the effect that the statutory right of access which President Trump has under the Presidential Records Act would have on the ability of the government to keep these purportedly classified documents from being seen by President Trump, his attorneys, or the court-appointed special master.
If the Biden DOJ were to attempt to bring an indictment of President Trump, do they intend to prosecute the former President based upon evidence he’s not allowed to see, in a courtroom closed to the public —an American version of the Court of Star Chamber? The government’s reply argues that it’s possible.
Plaintiff’s assertion that the government ‘would presumably be prepared to share all [records bearing classification markings] publicly in any future jury trial,’ Resp. 16 n.8, is mistaken. In cases involving the unlawful retention of national defense information, nothing requires the government to pursue charges on the basis of all unlawfully retained information or to publicly disclose classified information at trial. To the contrary, the Classified Information Procedures Act provides mechanisms ‘to protect classified information from unnecessary disclosure at any stage of a criminal trial.’
(p.10 of government’s reply)
The Classified Information Procedures Act (CIPA), 18 U.S.C. App. III. §§1-16, allows for prosecution of, for example, terrorist suspects, without the necessity of revealing specifics of classified information to the defendant, who can be provided with “a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove.” §4. A number of the cases cited by the government in their pleadings have to do with the disclosure of classified information to terror suspects, or foreign spies, not a former President for whom the classified information is not something he’s not already seen before, and which he has a right under federal law to access.
The position the government is taking regarding review by the special master is both unreasonable and untenable. Under the current implementing regulations for the CIPA as amended by Chief Justice John Roberts, “[a] security clearance for justices and other Article III judges is not required.”5 The special master, Judge Dearie, is a sitting Article III federal judge, and has had a background in dealing with classified material while serving on the Foreign Intelligence Surveillance Court, which is why both sides could agree to his appointment. President Trump has a statutory right to access any of his administration’s Presidential records, and to delegate that access to a designated person, be it his attorney, or the special master.
The 11th Circuit’s opinion, in reviewing the injunction, relied heavily on the district court’s finding that the government had not “callously disregarded” President Trump’s constitutional rights.
We begin, as the district court did, with ‘callous disregard,’ which is the ‘foremost consideration’ in determining whether a court should exercise its equitable jurisdiction. […] Here, the district court concluded that Plaintiff did not show that the United States acted in callous disregard of his constitutional rights. […] No party contests the district court’s finding in this regard. The absence of this ‘indispensab[le]’ factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here.
(p.17 of 11th circuit’s opinion)
By “callous disregard,” what is meant under the cases is “a clear and definite showing that constitutional rights have been violated.”
“It is established law that suppression of evidence prior to an indictment should be considered only when there is a clear and definite showing that constitutional rights have been violated."
United States v. Harte-Hanks Newspapers, 254 F.2d 366, 369 (5th Cir. 1958).6
The 11th Circuit considered this the decisive factor here, probably because there has as yet been no motion to quash the warrant filed by President Trump’s attorneys, nor has there been a formal Rule 41(g) motion filed for return of the seized property. The 11th Circuit observed in its opinion that:
While Plaintiff appears to view appointment of a special master as a predicate to filing a motion under Rule 41(g) (which allows a person to seek return of seized items), he disclaimed reliance on that Rule for the time being, saying that he “h[ad] not yet filed a Rule 41(g) motion, and [so] the standard for relief under that rule [wa]s not relevant to the issue of whether the Court should appoint a Special Master.” […] Yet in the same filing, Plaintiff stated that he “intends” to assert that records were seized in violation of the Fourth Amendment and the Presidential Records Act and are “thus subject to return” under Rule 41(g). […] The district court resolved this situation by classifying Plaintiff’s initial filing as a “hybrid motion” that seeks “ultimately the return of the seized property under Rule 41(g).”
(p.9 and fn.1 of 11th Circuit’s opinion)
Several legal observers have described the Mar-a-Lago search warrant as constitutionally overbroad, and have said that it violates the particularity requirement of the 4th Amendment, which was intended to guard against the type of general warrants used by the Court of Star Chamber to search through people’s houses looking for illegal books, publications and pamphlets that they could use as evidence against them for sedition against the Crown, or religious offenses.
It has since been acknowledged that the FBI raid “hoovered up” documents including President Trump’s tax records, medical records, passports, attorney-client communications, and even, President Trump says, his last will and testament, none of which would have to do with “unauthorized storage of classified information” or “unlawful retention of national defense information.” This clearly illustrates the warrant’s overbreadth, that it was a violation of President Trump’s constitutional rights, and that this raid was a fishing expedition.
I’m approaching the length limit for this “newsletter,” so I’ll have to discuss what may happen next in the Mar-A-Lago documents matter in my next installment.
—end—
The Star Chamber got its name from the room in which the court was held, which had a decorative ceiling featuring gilded stars in its motif. The building which held the Star Chamber was eventually demolished in 1806, but the starry ceiling was preserved, and was eventually installed in Leasowe Castle, where today it presides over a tea room.
Charles I was within a few years overthrown by forces demanding Parliamentary supremacy, and eventually executed, leading to the establishment of the 11-year-long “Commonwealth” government under Oliver Cromwell. Soon after Cromwell’s death, the monarchy was restored under Charles II, son of the former king, with deadly reprisals. Eventually, however, Britain became a constitutional monarchy with a written Bill of Rights (enacted 1689) that, a century later, was a source for some parts of the U.S. Constitution and Bill of Rights. (In case you were wondering what happened to the other two Charleses, now that there’s a King Charles III…)
“Pendent jurisdiction” is a type of additional jurisdiction that derives from jurisdiction the court already has. In this instance, the 11th Circuit is ruling on the government’s motion to prevent the special master from reviewing the “documents bearing classification markings,” because it has jurisdiction under the rules to review the related appeal of the district court’s temporary injunction. More often, “pendent jurisdiction” is used to allow the federal courts to decide related claims arising under state law at the same time as they’re deciding issues under federal law.
President Trump is identified as “Plaintiff” in the appeals court’s opinion because he’s the one who filed the motion for judicial oversight and appointment of a special master, even though that’s not technically a lawsuit for the reasons I discussed previously.
Likely due to separation of powers principles under the Constitution, Congress cannot require that the Judicial branch obtain “permission” from the Executive branch to review its classified activities.
The decisions of the U.S. Court of Appeals for the 5th Circuit which were decided prior to the creation of the 11th Circuit on September 30, 1981 are considered binding precedent for the 11th Circuit because the 11th Circuit was created from part of the old 5th Circuit, as the court mentions in fn. 2 on p. 9 of its opinion.
A person needs four things to access classified info: clearance, non-disclosure agreement (NDA), oath to protect classified, and need to know. Clearance is a government determination that a person can be trusted, usually after a background investigation. Cleared people are asked to sign a NDA and to swear an oath to protect classified. Anyone holding the info can determine that a cleared person has need to know. The special master in this case has previously held a clearance (and may now), so he is trusted, has signed the NDA, and sworn the oath that we all had to start swearing around 2005. To serve in this case, he obviously has need to know the evidence. There is no harm to the government in having the special master see every document. The government's contentions are absurd.