Now that President Trump’s attorneys have filed their response in the 11th Circuit Court of Appeals, I’d like to revisit the issue I mentioned earlier about whether the government can actually appeal the district court’s order appointing Judge Dearie as special master, because President Trump’s attorneys included discussion of that in their response. Sure, the government filed an appeal, but is it really proper? Mind-numbing law geekery ahead …you have been warned!
Under the federal law covering what is known as “interlocutory” appeals (appeals which may be filed before the trial court has issued a judgment in a case), the types of orders which can be appealed are very limited. 28 U.S.C. 1292 reads (in relevant part:
(a)Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from:
(1)Interlocutory orders of the district courts of the United States, […] or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court;
So basically, only orders related to injunctions are appealable to the federal Courts of Appeal. There is a temporary injunction imposed by the district court in the Mar-A-Lago documents matter, which reads:
The Government is TEMPORARILY ENJOINED from further review and use of any of the materials seized from Plaintiff’s residence on August 8, 2022, for criminal investigative purposes pending resolution of the special master’s review process as determined by this Court. The Government may continue to review and use the materials seized for purposes of intelligence classification and national security assessments.
So far so good. Except that there’s no provision in the law governing interlocutory appeals for appealing the appointment of a special master.1 The U.S. Supreme Court provided some guidance on the policy behind this law back in 1966 in a case called Switzerland Cheese Ass’n, Inc. v. E. Horne’s Mkt., Inc., 385 U.S. 23, which is a very short opinion as Supreme Court cases go. In their response, President Trump’s attorneys quote this portion of the 7-0 majority opinion2:
Orders that in no way touch on the merits of the claim but only relate to pretrial procedures are not in our view 'interlocutory' within the meaning of § 1292(a)(1).
p.25
“[F]ederal law,” as drafted by Congress, explains the Court, “expresses the policy against piecemeal appeals.” You don’t want parties to be able to appeal every little decision of the district court while the case is in progress, because that puts too much on the appeals court docket, and bogs down the trial at the district court.
As Justice William O. Douglas, writing for the majority puts it, “[W]e approach this statute somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders.” A similar consideration will work to President Trump’s advantage in the Court of Appeals, because that court won't want to create a precedent that would enable everybody else in the circuit to be able to appeal the appointment of a special master in their cases. Who wants all that work?
So in other words, this temporary injunction, which is related to the appointment of the special master, shouldn’t make the appointment of a special master an appealable order.
So the 11th Circuit could stay the temporary injunction, and leave the special master in place, dissatisfying both parties, as judges often do. Although, that seems to me like something one judge might do, but this is going to be a three-judge panel.
I'm still not sure how the 11th Circuit is going to rule, because of the issue I explained in my earlier Substack about whether the district court's order can be considered a "final" disposition of something that's not actually a "case" (if it ever will be). I'm leaning towards it being considered not a final appealable order because this isn't a "case." The procedural posture is kind of stacked against the government's position, it seems to me.
President Trump’s response addresses the question of a “final” order this way, citing the 11th Circuit’s own precedents:
Generally, federal courts of appeals 'have jurisdiction of appeals from all final decisions of the district courts of the United States.' 28 U.S.C. § 1291. 'A final decision is one by which a district court disassociates itself from the case . . . .” Doe No. 1 v. United States, 749 F.3d 999, 1004 (11th Cir. 2014) (internal quotation marks omitted).
p.21
If the district court’s order appointing the special master were considered a “final” order, then appealing it would be an ordinary appeal (as it would be for someone who lost their “case” at the district court), rather than an “interlocutory” appeal. But because there’s no “case” yet, the portion of the law dealing with interlocutory appeals is all the government should be able to rely on for jurisdiction in the appeals court.
The other problem for the government’s case is the “standard of review” in the appeals court that it uses for determining whether the district court made a mistake, and needs to be reversed. The “standard of review” can be compared to the evidentiary standard in a civil or criminal case, except instead of finding something happened by “a preponderance of the evidence” or “beyond a reasonable doubt,” the court has different levels of review that they use to judge the lower court’s decision.
In looking at whether the lower court made a mistake in issuing their injunction, the standard, according to President Trump’s response, is “clear abuse of discretion,” which is a somewhat high standard to meet, not quite equivalent to “beyond a reasonable doubt” but more like the “clear and convincing evidence” standard that’s sometimes used as an intermediate step beyond “preponderance,” in things like proving fraud. The court would have had to very obviously abused its discretion in order for the appeals court to find that issuing the temporary injunction was a mistake.
In reviewing the appointment of the special master (if the appeals court can even do so, given the law), the standard of review, according to President Trump’s response, is a bit lower, “abuse of discretion,” rather than “clear abuse of discretion.” If appointing the special master is something that seems reasonable for the district court to have done, then that order should not be considered an “abuse of discretion.” As career federal prosecutor William Shipley put it:
So procedurally, it looks like the government has a tough argument to make in the 11th Circuit, and seems unlikely to prevail on keeping the purportedly “classified documents” away from review by the special master3, and probably won’t prevail on partially staying the temporary injunction either. It also definitely seems that the appointment of the special master isn’t reviewable unless it could be considered a “final” order. As President Trump’s response sums up:
The Government’s attempt to shield the purportedly classified documents from the ambit of a Senior United States District Judge who served for seven years on a court dealing with the most sensitive national security matters therefore illustrates precisely why the District Court found a special master was appropriate and necessary under the circumstances.
p.27
Or in other words, "[T]here can be no serious argument that allowing Judge Dearie to review the documents inflicts harm." (p.17 of response).
To the FBI and DOJ's reputation, maybe...
There is another part of the law (§1292(b)), which allows for interlocutory appeals of other types of orders, but it’s something that the district court has to initiate, and nobody moved the district court to do so, and the court didn’t volunteer to do it themselves, so that part doesn’t apply.
How is it a 7-0 majority, you might ask, when the Court has 9 members? Counting the votes, the majority opinion is not 9-0 unanimous for two reasons, one of which is a notation that "Mr. Justice STEWART concurs in the result." So, for some reason Justice Potter Stewart didn't join the majority opinion, and didn't write his own concurring opinion explaining why. Also Justice John Marshall Harlan II concurred, adopting the reasoning in a lower court opinion. So those two justices technically don't get counted as votes for the majority opinion, though they both did approve of the result.
An interesting legal question occurred to me... whether §2205(3) of the Presidential Records Act supersedes the security clearance system? It reads: "the Presidential records of a former President shall be available to such former President or the former President's designated representative."
Does being the "designated representative" require you to have a security clearance sufficient to look at the Presidential records the former President designates you to have access to? Seems not... so it really shouldn’t matter whether President Trump’s attorneys, or the special master, Judge Dearie, (as the “designated representative”) have appropriate clearances, or not —though I understand that they do.