On September 30, 2022, the Department of Justice filed in the 11th Circuit Court of Appeals a Motion to Expedite its Appeal, and to set new deadlines for the parties to file their briefs with the appeals court. On Monday, October 3, President Trump’s attorneys filed their opposition to the government’s motion1 to expedite, and proposed a different set of deadlines. And then, yesterday, October 4, President Trump’s attorneys filed an application with the U.S. Supreme Court to partially vacate the 11th Circuit’s partial stay order issued on September 21, which I discussed last time in “In The Star Chamber.”
At the end of that article, I’d promised to offer my predictions about what may happen next in this Mar-A-Lago documents dispute, but given that I’m not a litigator, it’s probably just as well that I was delayed in writing my followup until events have overtaken the predictions I might have made. Things have become somewhat clearer now, and the appeals in this matter have become a race between two courts, the 11th Circuit, where the government is essentially trying to appeal the appointment of the special master entirely, and the U.S. Supreme Court, in the person of Associate Justice Clarence Thomas, who is the circuit justice2 who handles certain types of appeals from the 11th Circuit.
President Trump is trying to have Justice Thomas vacate (get rid of) the 11th Circuit’s partial stay order, but only to the extent that it prevents the special master from reviewing the “documents marked as classified.” He’s not appealing the partial stay of the temporary injunction which prevented the government from using those documents in its criminal investigation. Justice Thomas has set a deadline of next Tuesday, October 11, for the government to file its response to President Trump’s application.
(Illustration by yours truly of the metaphorical drag race to determine whether the special master’s review, or the government’s appeal of his appointment, gets shut down.3)
I’d originally thought that President Trump may have had two options to appeal the 11th Circuit’s partial stay, either appeal the decision of the three judge panel4 to the full 11th Circuit (what’s known as an en banc appeal), or appeal it to the Supreme Court. However, as President Trump’s attorneys’ mention in a footnote to their application to Justice Thomas, “[p]ursuant to Eleventh Circuit Rule 35-4(a), a petition for rehearing en banc of a stay or injunction pending appeal will not be considered by the court en banc.” (fn.5, p.9). So, under the 11th Circuit’s rules about such things, they really had no choice but to go to the Supreme Court.
THE 11TH CIRCUIT
The government won its partial stay pending appeal at the 11th Circuit, and is now arguing for an expedited briefing schedule for the actual appeal, which hasn’t really been filed yet, in the sense that there’s been no substantive argument (or briefs) which have been submitted to the appeals court. Right now the two sides are essentially arguing about when their homework should be due. Here’s a brief look at the timeline proposed by both sides, known as the briefing schedule:
Deadline for the USA to file its main brief: The 11th Circuit originally set the deadline as October 19. The USA wants to move it up to October 14 (five days earlier). President Trump’s attorneys, understandably, don’t have a problem with that —it’s the USA’s deadline.
Deadline for President Trump to file his response: The appeals court set that originally as November 18. The USA wants to move that up to November 4, two weeks earlier. President Trump’s attorneys propose a deadline, in light of the USA’s earlier deadline, of November 14 (four days earlier than the court originally set).
Deadline for the USA’s reply to President Trump’s brief: The appeals court allowed up to 21 days after President Trump’s response for the government’s reply. The USA proposes a deadline of November 11, and President Trumps attorneys’ counter with November 21 (twenty days longer than the schedule proposed in USA’s motion, but faster than the 11th Circuit’s original schedule).
So, clearly, all this business in the appeals court is going to run past the November 8 midterm elections —because after the briefs are all filed, probably around December 9, there will need to be a hearing held for oral argument, and the 11th circuit would issue its ruling sometime after that. The holiday season is also fast approaching. President Trump’s attorneys argue that the USA’s proposed schedule doesn’t give them the 30 days provided under the appellate rules to respond to the government’s brief, and besides, they’re also busy working through the seized documents with the special master during that time, and need the time provided under the rules to prepare their response. “President Trump believes setting oral argument in January 2023 or later is appropriate.” (p.2 of opposition)
For its part, the government argues that
The parties briefed these issues on compressed schedules directed first by the district court and then by this Court. Given that the appeal will concern the same issues and, for the most part, the same case law and statutory authorities, there is little reason to give the parties nearly three or more months to brief their well-established positions.
(p.6 of motion to expedite appeal)
The government admits here it will be re-using in its appeal much of its earlier argument that it used to get the partial stay. Given that President Trump is now trying to get the Supreme Court to throw out the partial stay, this has implications for the government’s appeal, as I discuss a little later.
The government also complains in its 11th Circuit motion for expedited appeal about delays in getting the special master’s review started, such as “difficulties engaging a vendor to facilitate the document review process.” (p.5) “[A] ruling in the government's favor may render further proceedings before the special master and the district court unnecessary.” (p.1)
In its appeal, the government plans to present two issues, building on the victory it won in the earlier motion before the three-judge motions panel:
This appeal presents two questions of law: (1) whether the district court erred by exercising equitable jurisdiction over Plaintiff's motion; and (2) whether the district court erred by granting a preliminary injunction barring the government from reviewing or using evidence seized pursuant to a search warrant in an ongoing criminal investigation, pending a months-long special master process to consider, inter alia, Plaintiff's executive privilege claims.
(p.5 of motion to expedite appeal)
The government claims that their national security and criminal investigations will be harmed by lack of access to the other seized documents during the special master’s review, “[e]ven if not to the same degree,” because the documents without classfication markings “may constitute evidence of crimes,” such as “potential violations of 18 U.S.C. § 1519 (obstruction) and 18 U.S.C. § 2071 (concealment or removal of government records).” (p.7-8)
U.S. SUPREME COURT
In the Supreme Court, President Trump’s attorneys have filed an application to have the Supreme Court partially vacate the 11th Circuit’s partial stay order, so that the special master can review the “documents marked as classified” which were seized from President Trump’s Mar-A-Lago resort home. Their argument is largely a procedural one, that the 11th Circuit made a mistake by deciding an appeal that they didn’t actually have jurisdiction to consider, because the government did not (and could not) appeal the district court’s order appointing the special master. Nor could the 11th Circuit, as they tried to do, cut back on the authority of the special master to review the purportedly “classified” documents, even though the appeals court claimed they were simply staying the district court’s order that the government had to turn over the “documents marked as classified” to the special master for review.
It’s my understanding that, as circuit justice, Justice Clarence Thomas could decide this question on his own, or confer with the other members of the Supreme Court about it. Whichever way he handles it though, his involvement seems like something that will drive the Trump-deranged Democrats into a further frenzy, given that just last week they had Justice Thomas’ wife, Ginni, testify before the “January 6th” show trial committee, and then-Senator Joe Biden was the Senate Judiciary Committee chairman during Justice Thomas’ confirmation hearing in 1991, which Thomas famously characterized as “a high-tech lynching.” Fortunately, President Trump’s attorneys have given the Court some strong arguments in favor of overturning the 11th Circuit’s order.
Summary of the argument
The unprecedented circumstances presented by this case—an investigation of the Forty-Fifth President of the United States by the administration of his political rival and successor—compelled the District Court to acknowledge the significant need for enhanced vigilance and to order the appointment of a Special Master to ensure fairness, transparency, and maintenance of the public trust. That appointment order is simply not appealable on an interlocutory basis and was never before the Eleventh Circuit. Nonetheless, the Eleventh Circuit granted a stay of the Special Master Order, effectively compromising the integrity of the well-established policy against piecemeal appellate review and ignoring the District Court’s broad discretion without justification.5
p.2
This application seeks to vacate only that portion of the Eleventh Circuit’s Stay Order limiting the scope of the Special Master’s review of the documents bearing classification markings.
p.3
The order appointing the special master was not being appealed
The Eleventh Circuit erred by citing repeatedly to both [the temporary injunction and special master appointment] orders as the basis for its Stay Order. […] [T]he Government’s Notice of Appeal of the Injunction Order was filed September 9, 2022, six days before entry of the Special Master Order.
fn.2 p.2 of application
The Injunction Order did not require the Government to submit records to any special master as none had even been appointed [at the time the government’s appeal was filed].
p.6
The government nonetheless appealed as its second issue the requirement that the government had to disclose purported “classified” records to a special master for review. The government tried to combine the two issues, but messed up procedurally in doing so, because they had only appealed the injunction order, and at the time they filed their notice of appeal, the order appointing the special master hadn’t happened yet, and they didn’t appeal the appointment order when it happened.
Federal Rule of Appellate Procedure 3(c)(1)(B) requires a notice of appeal to “designate the . . . appealable order . . . from which the appeal is taken . . . .” […] Here, the Government did not—and obviously could not—designate the Special Master Order in its September 8, 2022, Notice of Appeal. […] [T]he Government sought to add an order to its notice of appeal that did not exist when it filed its notice of appeal.
fn.7 p.14 (emphasis in original)
The Government’s attempted sleight of hand has created this jurisdictional morass.
fn.8
Or, one could call it another sort of “mind trick.”
The appointment of a special master is not an appealable order under the rules for interlocutory appeals
[T]he Eleventh Circuit […] stayed the Special Master Order even though (1) it was not included in the Notice of Appeal and (2) it was not an appealable interlocutory order.
p.14
I’ve discussed the non-appealability of the appointment of the special master a couple of times previously here, and now this question is being presented squarely to the Supreme Court. Indeed, as discussed above, the Department of Justice is busy trying to appeal just that in the 11th Circuit, using the same sorts of arguments they successfully used to get the order for partial stay which President Trump is now trying to have the Supreme Court vacate. If the Supreme Court rules in President Trump’s favor, the government’s appeal gets shut down.
The Government’s motion [for partial stay at the 11th Circuit] did not identify a basis for appellate jurisdiction. President Trump’s response in the Eleventh Circuit (“Response to Appeal”) noted, in addition to his substantive arguments, the Eleventh Circuit lacked jurisdiction to review the Special Master’s appointment and authority because the Special Master Order was not an appealable interlocutory order. […] President Trump argued the appointment of a special master is a procedural order—not an injunction—and therefore not subject to interlocutory review.
p.8
[A]lthough appointment of a special master ordinarily requires some action by the parties, this does not transform it from a procedural order into an immediately appealable injunction under §1292(a)(1).
p.12
§1292(a)(1) refers to the first of several rules dealing with the kinds of appeals which can be filed before a district court has issued a judgment in a case, which are called “interlocutory” appeals. The application then goes on to cite cases in support of that rule not applying to appointment of a special master.
Here, the Eleventh Circuit’s characterization of the appointment of the Special Master as an order “to act”—making it immediately appealable—is legally infirm.
p.13
[A]ll orders appointing special masters require to some extent the submission of materials for review. This however does not transform such orders into appealable injunctions under §1292(a)(1).
pp. 17-18
The Eleventh Circuit’s decision [...] creates an unmanageable standard for what qualifies as an “injunction” for appealability purposes, expanding interlocutory review under §1292(a)(1) into a morass of limitless appeals.
p.15
Well, we certainly don’t want that!
Contrary to the 11th Circuit’s reasoning, the district court’s temporary injunction order and its order appointing the special master are not “inextricably intertwined”
In a footnote, the Eleventh Circuit found it had jurisdiction to review the appointment of the Special Master because the ruling was “inextricably intertwined” with the Injunction. […] This holding—rendered without explanation of why an Injunction against use of records for criminal investigative purposes and a separate order appointing a special master are inextricably intertwined—contravenes [Supreme Court] precedent.
p.21
Interlocutory review of a separate order appointing a special master is simply not in any way necessary to “ensure meaningful review of” the decision enjoining the Government from use of the purportedly classified materials in its ongoing investigation.
p.22
In other words, the two issues aren’t really related enough to say they’re “inextricably intertwined.” The Court could have, as some expected, left the special master untouched, but allowed the government to resume its use of the “documents marked as classified” in its criminal investigation.
[I]nterlocutory review of the Injunction Order is not “inextricably intertwined” with review of the Special Master Order as it is not intertwined at all.
p.26
The 11th Circuit invoked “pendent jurisdiction”6 to reach the issue whether to allow the special master to review the “documents marked as classified,” but that was inappropriate because that reasoning would allow for appeal of a lot of decisions by district courts that are currently unappealable under the rules for interlocutory appeals.
Even if pendent appellate jurisdiction could apply to an appeal under §1292(a)(1), the District Court’s Special Master Order was not “inextricably intertwined” with the Injunction to warrant pendent jurisdiction.
p.24
The government’s claim of irreparable harm from the special master’s review of the documents marked as classified is not plausible
The government has argued in its pleadings there is some inherent risk of irreparable harm from allowing the special master, or President Trump’s attorneys, to see the 100 or so documents having classification markings, and as justification, has cited to cases which pertain to showing classified information to criminal defendants who are terror suspects, or foreign spies. While the government may primarily be arguing that the special master’s review serves to delay their investigation, and as a result poses a threat to national security, they’ve actually argued the special master’s review of these documents could, in itself, potentially harm national security.
President Trump’s attorneys address this argument in the application:
Unlike in Al Odah, where the unredacted classified documents were ordered to be disclosed to defendant’s counsel, here the materials in question will be provided to the Special Master—a Senior United States District Judge with years of FISA court experience. […] It can hardly be suggested that Judge Dearie’s review of these records is in any way akin to dissemination of previously unshared, unredacted, classified information to counsel for Guantanamo Bay detainees. […] The Government argued on appeal, without explanation, that showing the purportedly classified documents to Judge Dearie would harm national security. However, in seeking to stay the Injunction Order pending appeal, the Government then argued it needed to use those same documents to interview witnesses and submit to the grand jury. […] These positions cannot be reconciled.
p.28
President Trump’s application also raises the independent statutory right under the Presidential Records Act (PRA) for President Trump, and by extension, the Special Master, to access presidential records.
Summing up
President Trump’s application to the Supreme Court concludes with a review of the facts as they apply to the law.
[I]n what is essentially a document storage dispute governed by the PRA, […] the Government has sought to criminalize President Trump’s possession and management of his own personal and Presidential records.
p.30
President Trump was still the President of the United States when any documents bearing classification markings were delivered to his residence in Palm Beach, Florida. […] Yet, the Government apparently contends that President Trump, who had full authority to declassify documents, ‘willfully’ retained classified information in violation of the law.
pp.33-34
The Government’s position presumes certain documents are in fact classified, affording President Trump no opportunity to contend otherwise. This presumption is at the core of the dispute. Since President Trump had absolute authority over classification decisions during his Presidency, the current status of any disputed document cannot possibly be determined solely by reference to the markings on that document.
pp.34-35
In sum, the District Court exercised its lawful discretion and denied the Government the ability to evade any oversight and to skip forward towards a preordained conclusion.
p.31
The race is on. Let's see who gets shut down.7
—end—
The official PDFs of the 11th Circuit pleadings are available on the federal court systems’ PACER (Public Access to Court Electronic Records) system, however that’s a pay-per-use system, which requires obtaining a log in, so I’m linking the documents as posted publicly by various news organizations.
Each of the nine members of the U.S. Supreme Court is assigned a supervisory role over certain appeals from the U.S. Circuit Courts of Appeal, and in that capacity are referred to as “circuit justices.” Usually these assignments have some relation to a justice’s connection to that particular circuit, and in Justice Thomas’ case, being from Pin Point, GA, he has the assignment for the 11th Circuit, which covers Alabama, Georgia, and Florida. Given that there are thirteen Courts of Appeal, and only nine Supreme Court justices, some justices have more than one circuit to supervise. Chief Justice John Roberts has the circuit justice duties for the 4th Circuit, the D.C. Circuit, as well as the special Federal Circuit. Justice Brett Kavanaugh is circuit justice for both the Sixth Circuit (where I’d practice if I were a litigator, as a Tennessee attorney) and the Eighth Circuit.
My title today is a reference to “Shut Down,” an ode to drag racing released in 1963 by The Beach Boys. The colored lights shown, which signal the start of the race, are referred to as the “Christmas tree.” And yes, the track here is our Constitution getting run over…
The three-judge panel of the 11th Circuit consisted of two judges appointed by President Trump, Andrew Brasher and Britt Grant, and one judge, Robin Rosenbaum, appointed by President Obama; and they issued their order unsigned (known as per curiam, Latin for “by the court”), which means that they tried to reach a decision they could all agree on. As I said in my previous column, I think the portion of their order partially staying the injunction against the government using the “documents marked as classified” in its criminal investigation was correctly decided and compelled by precedent, but the part of the order which in effect modified the scope of the special master’s review to prevent his looking at the “documents marked as classified” was weak and untenable. I wonder who wrote that part?
“Interlocutory” appeals are appeals which may be filed before the trial court has issued a judgment in a case. For mind-numbing law geekery about this rule, see my earlier column. By never “before” the 11th Circuit, what is meant is that the issue wasn’t properly appealed to that court, and so the court can’t rule on something that is not “before” it, because unless the rules about appeals are followed, the court lacks jurisdiction to consider it.
“Pendent jurisdiction” is a type of additional jurisdiction that derives from jurisdiction the court already has. In its order granting the partial stay, the 11th Circuit argued that it could rule on the government’s motion to prevent the special master from reviewing the “documents bearing classification markings,” because it had jurisdiction under the rules to review the related appeal of the district court’s temporary injunction.
There were a couple of good footnotes in President Trump’s application that I wanted to mention, in case you like reading footnotes (I suppose you wouldn’t be down here if you didn't!). Footnote 4, which is a helluva thing, extending as it does across pages 4 and 5, compares the treatment of President Trump and his presidential records to the history of how previous presidents have been treated. Footnote 16, beginning on p.35, cites to the handbook for U.S. Attorneys about how political considerations about elections or the political affiliations of a subject should never influence their decisions on investigations or prosecutions, pretty strongly implying that the current prosecutors are being unethical.
Democrats are so desperate. I hope this backfires on them so bigly.