Expedition upon Expedition: Former President Trump Seeks Supreme Court Intervention to Reverse the Eleventh Circuit’s Intervention in Special Master Proceedings; Department of Justice Seeks to Speed Up Appellate Review

Trump v. United States. No. 22-13005 (11th Cir.); Trump v. United States, No. 22-81294 (S.D. Fla.). Application to Vacate the Eleventh Circuit’s Stay of an Order Issued by the United States District Court for the Southern District of Florida. Petition to the Associate Supreme Court Justice of the United States for the Eleventh Circuit submitted October 4, 2022.


Former President Trump seeks the aid of the United States Supreme Court in vacating an order of the United States Court of Appeals for the Eleventh Circuit which stayed a lower court’s order.  The lower court’s order precluded the use of documents with classification markings in  a criminal investigation while the documents were under review by a Special Master appointed by the court.  The Eleventh Circuit’s order countermanded that determination which in turn permitted resumption of use of the documents in criminal investigations.

The former president argues that the Eleventh Circuit had no power to rule on the Department of Justice’s request, as the ruling was an interlocutory, or non-final ruling.  Such rulings are not permitted except in limited circumstances.

At the same time, the Department of Justice seeks to press ahead in its request for appellate review of the federal district court’s actions.

 

Application to Vacate Eleventh Circuit Order October 4, 2022

Opposition to Appellant’s Motion to Expedite Appeal October 3, 2022

Motion to Expedite Appeal September 30, 2022

Carry On, Criminal Investigators! Eleventh Circuit Stays District Court Order Prohibiting Use of Classified Documents Seized from Former President’s Residence Pending Special Master Review


Donald J. Trump v. United States of America, No. 22-13005 (11th Cir.) Order issued  September 22, 2022 (Not For Publication).


In recent weeks, on application by former President Donald J. Trump, the United States District Court for the Southern District of Florida issued an order appointing a Special Master to assist in reviewing materials seized during an August search of the former president’s residence at Mar-a-Lago.  Pending completion of the Special Master’s review, the court ordered federal investigative officials to refrain from using any of the seized materials bearing classification markings, but specifically noted that classification review could continue.  The trial court denied the United States’ motion to stay that portion of the order that would preclude use of documents with classified markings in any ongoing criminal investigation and that would require submitting the documents with classification marking for review by the Special Master.  

The United States sought interlocutory review in the Eleventh Circuit Court of Appeals.  The Eleventh Circuit reviewed the trial court’s order according to principles governing issuance of injunctions, and found that the trial court, which has broad, yet not unbounded discretionary to such relief, erred in granting relief in the absence of evidence of callous disregard for the former president’s interest and in the presence of potential for serious harm to the government’s and the public’s interest if investigation is foreclosed.  The Eleventh Circuit has stayed the preclusion and turnover portions of the trial court’s order.

Trump v. U.S. No. 22-13005 (11th Cir.) Order of September 21, 202

“The Very Objects of the Offense”: DOJ Asks Appellate Court to Stay Trial Court Order Enjoining Investigation Using Materials Seized from Former President’s Residence with Classified Markings


Trump v. United States, No. 22-13005-F (11th Cir.); Trump v. United States, No. 22-81294 (D. Fla.).


The United States seeks immediate appellate intervention in order to stay the order of the U.S. District Court in Florida which appointed a Special Master to review documents and things seized during an August 8, 2022 search of former President Trump’s Mar-a-Lago residence.  The trial court ordered the United States to stop using the documents seized in the government’s ongoing criminal investigation, which includes investigation into whether the former president wrongfully retained national security materials.

The United States submits to the appellate court that the approximately 100 documents bearing ‘Classified’ markings are the very documents the government needs to build its case.   The United States first made this argument to the trial court, which denied relief, but which directed the newly-appointed Special Master to prioritize review of the documents with ‘Classified’ markings.  The court observed that the government had not established any urgency concerning these documents and that the court was not obliged to adopt unquestioningly the position of the United States.

The trial court has outlined a protocol for review of the documents seized which will permit both parties to view the documents, determine which ought to be considered privileged, and submit their recommendations or disagreements to the Special Master.  The Special Master will in turn make recommendations to the trial court, which will, if need be, conduct review de novo.

The former  president as plaintiff is expected to pay for all of the Special Master proceedings, which must be concluded by November 30, 2022.

The newly appointed Special Master, a retired federal judge, has scheduled an initial conference with counsel on September 20th, and has invited submission of agendas not later than September 19th.


Trump v. United States, No. 22-13005-F (11th Cir.) Motion for Partial Stay Pending Appeal, September 16, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) Order of Special Master, September 16, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) Order Appointing Special Master, September 15, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) Order Denying Stay, September 15, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) Declaration of Special Master, September 15, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) United States’ Reply in Support of Motion for Stay Pending Appeal, September 13, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) Parties’ Joint Filing Respecting the Court’s Appointment of a Special Master, September 9, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) Donald J. Trump’s Response in Opposition to Motion for Partial Stay Pending Appeal, September 12, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) Plaintiff’s Proposed Order of Appointment of Special Master, September 9, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) United States’ Proposed Order of Appointment of Special Master, September 9, 2022

Trump v. United States, No. 22-81294-MAC (D. Fla.) United States’ Motion for a Partial Stay Pending Appeal, September 8, 2022

Trump v. United States, No. 22-81294-MAC (D. Fla.) Declaration of Asst. Dir. Counterintelligence, FBI, September 8, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) Notice of Appeal, September 8, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) Order, September 5, 2022

A Labor Day of Law: Federal Court Agrees to Appoint Special Master in Challenge to Search at Mar-a-Lago, Enjoins Investigators from Use of Materials Under Review


Donald J. Trump v. United States, No. 22-81294 (MAC).  Order entered September 5, 2022.


Citing the need “to ensure at least the appearance of fairness and integrity,” the federal judge assigned to hear former President Trump’s request for appointment of a Special Master to review materials seized pursuant to an unannounced search of his Florida residence, Mar-a-Lago has granted that request.  

Having concluded that the circumstances warrant the exercise of the court’s equitable jurisdiction and supervisory powers, the court examined the equitable considerations supporting or negating the propriety of the appointment of a Special Master.

The court rejected the government’s argument that the former president could not seek relief because in the government’s view the former president does not own the materials seized.  Not only is this not wholly true, the court observed, but property ownership is no precondition to assertion of Fourth Amendment interests.

The idea that the former president cannot challenge the search fails, in the court’s view, because the issue before the court is not standing on the merits of any claim, but standing to seek equitable relief in the form of a special master, which the court has found to be present.  

The argument that there exists concern only for materials subject to the attorney client privilege but not the executive privilege also fails, the court found, as the government’s assertion that the executive privilege is lost the moment a president vacates the office lacks support in the law.  

The court rejected the notion that the work of a government privilege review team obviates the need for a special master.  While adequate in some cases, the court observed, this is not an ordinary case, and to the extent that there have been instances of some materials not being cabined by the government privilege review team, even if inadvertent, highlights the need for independent review. 

The court has elicited suggestions for appointees to act as Special Master to be filed by the parties by September 9, 2022. 

The government has been ordered not to make use of any of the seized materials under review by the Special Master in any criminal investigation at least during the conduct of the Special Master’s review.  The government may continue its classification and national security review.  

2022 09 05 Trump v US 22-81294 Order