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

More Translucent than Transparent, Unsealed Government Inventory and Investigative Status Report Indicate Government’s Quest for Evidence Continues


Donald J. Trump v. United States, No. 22-81294 (AMC).  Minute order entered September 2, 2022.

The federal district court in Florida has heard argument concerning the former president’s request for appointment of a Special Master and for other relief, and has directed that the government’s investigative status report and inventory of items seized at the Mar-a-Lago residence be unsealed, with an order to follow.

The federal investigative team has advised the court that it is reviewing materials seized at Mar-a-Lago, has separated them into items with classified markings and those without, has taken care to conform its work to that of a privilege review team.

The federal investigative team has advised the court that the review of the materials seized is in pursuit of an “ongoing criminal investigation.”  The status report explains that materials are being reviewed for relevance to unstated charges:

The investigative team has reviewed the seized materials in furtherance of its ongoing investigation, evaluating the relevance and character of each item seized, and making preliminary determinations about investigative avenues suggested or warranted by the character and nature of the seized items. The seized materials will continue to be used to further the government’s investigation, and the investigative team will continue to use and evaluate the seized materials as it takes further investigative steps, such as through additional witness interviews and grand jury practice. Additionally, all evidence pertaining to the seized items — including, but not limited to, the nature and manner in which they were stored, as well as any evidence with respect to particular documents of interest — will inform the government’s investigation. Thus, it is important to note, “review” of the seized material is not a single investigative step but an ongoing process in this active criminal investigation.

Notice by Investigative Team of Status of Review, page 2.

The status report is clear that the review of seized materials is not in support of conclusions reached with respect to any violations of criminal or civil law, but in support of investigation of whether any violations of criminal or civil law may have occurred.  The review team is clear that such materials may be used in grand jury proceedings.

Should materials become part of grand jury proceedings, disclosure of the nature of any such materials would become highly restricted in accordance with Federal Rules of Criminal Procedure 6(e).

The status report notes that a federal agency is also reviewing the materials seized to determine the threat to national security should such documents be released.

The government investigators have assured the court that due care has been and will be exercised to consider whether any materials are subject to the attorney client privilege.

The newly unsealed inventory provides information about the place from which materials were seized, the number of items in each container, and the nature of the items, such as “magazines” or “newspapers”, clothing, gift items, books, photographs, or items with classification markings.

2022 08 30 Notice by Investigative Team of Status of Review unsealed 2022 09 02

2022 08 30 Detailed Property Inventory Pursuant to Court’s Preliminary Order unsealed 2022 09 02

Counsel for Former President Urge Court to Reject Any Notion that Ownership is a Prerequisite to Challenge to Search and Seizure at Mar-a-Lago Residence


Donald J. Trump v. United States, No. 22-81294 (AMC).  Movant’s Reply to United States’ Response to Motion for Judicial Oversight and Additional Relief, filed August 31, 2022.  Hearing September 1, 2022 at U.S. District Court in Florida at 1 p.m. 

Counsel for former president Donald J. Trump argue that no precedent exists for the government’s argument that in the absence of a property interest –that interest to be determined by the government — an individual seeking to challenge a search and seizure of his residence has no recourse because, in the absence of a property interest — that interest to be determined by the government — the individual who lacks an ownership interest in materials seized lacks standing to seek review.  In the absence of standing, the court has no power to hear the case.  

The government’s argument, counsel have submitted, has no support in extant Fourth Amendment jurisprudence, which recognizes that it is governmental intrusion that is central to the Fourth Amendment’s restrictions on governmental power.  What is necessary is “a legitimate expectation of privacy in the premises searched or the items seized.” Reply Memorandum at 5, quoting United States v. Rackley, 742 F.2d 1266, 1270 (11th Cir. 1984).   The government’s position is not only in error as a matter of constitutional law, but the government fails to recognize that the question before the court is the propriety of appointment of a Special Master, which is directed to the power of the court to grant equitable relief. 

Counsel for the former president observe that any authority to conduct privilege review presented within the application for the warrant issued prior to the search and seizure at Mar-a-Lago was narrowly constrained a a certain portion of the property, yet as the government insists that its review is complete, it would appear that the government exceeded those bounds. 

The government’s argument that the court ought not insert itself into what has been styled a ‘national security’ review by a government entity cannot succeed.  Power to adjudicate matters relating to governmental exercise of powers is at the core of the need for a federal judiciary.  

Counsel note that the government has not conducted itself with the high standards which it purports to uphold, as evidence by the dramatic — and apparently staged — submission to the court of a photograph showing documents bearing “classified” cover sheets.

The former president is in need of an inventory of items seized in order to assert his interests in materials gathered through use of criminal process in a matter that ought to have been a routine discussion of items sought for a presidential library under the Presidential Records Act.  

Movant’s Reply to United States, No. 22-81294 August 31, 2022

 

United States Avers Evidence Suggesting Former President Concealed Records Required Warrant Authorizing Search and Seizure of Personal Residence

Donald J. Trump v. United States, No. 22-cv-81294 (AMC).

In response to briefing order issued by the federal district court in Florida, the United States alleged today that it sought to obtain judicial authority to search and seize the former President’s residence because, in doubt concerning the completeness of the custodian of records attestation that records provided to the government were complete, that “[t]he government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.” United States Response to Motion for Judicial Oversight and for Additional Relief at 10.

The United States argues that the former president has no ownership interest in the records seized, as these belong to the United States under the Presidential Records Act. As the former president is perceived to lack any interest in the records seized, he has no standing to contest the seizure.

Neither does the former president have any interest in return of any personal items seized during the good faith execution of a search warrant, as the United States asserts was the case with the search conducted at the former president’s residence on August 8, 2022.

The United States has advised the court that its review of the records seized has been completed, rendering moot the appointment of a special master, the propriety of which the United States contests.

United States’ Response to Motion for Judicial Oversight and Additional Relief

Attachment to United States’ Response to Motion for Judicial Oversight and Additional Relief

At Your Service: Having Submitted to the Supreme Court an Amicus Brief Arguing Against Post-Presidential Retention of Executive Privilege, Several Counsel Seek Appointment as Special Master in Challenge to Mar-a-Lago Search and Seizure


Donald J. Trump v. United States, No. 22-cv-81294 (CAC).

The judge assigned to former President Donald Trump’s case against the United States concerning search of his Mar-a-Lago residence has indicated that a special master may be appointed to review the documents seized.  

The court has not solicited bids for appointment of a special counsel. 

Today a group called National Security Counselors submitted a letter to the court offering the curriculum vitae of individuals believed to be competent to serve. 

As evidence of experience, the group has filed a copy of an amicus brief submitted to the Supreme Court last term in opposition to a petition for certiorari by former President Trump concerning federal records.  There it was argued that no individual claim of presidential executive privilege ought to survive the end of an administration. 

 

Letter to Court Seeking Appointment August 30, 2022

Notice of Proposed Special Master Candidates August 30, 2022

Curriculum Vitae of Proposed Special Masters August 30, 2022

Amicus Brief in Supreme Court 21-932

 

 

Everything is Under (Our) Control, Government Assures Court in Challenge to Search and Seizure at Trump’s Mar-a-Lago Residence

Trump v. United States, No. 22-cv-81294 (AMC). Notice of Receipt of Preliminary Order and Attorney Appearance, filed August 29, 2022.

The United States has advised the U.S. District Court for the Southern District of Florida that the government will provide a detailed, non-public inventory of materials seized at the former president’s residence on August 8, 2022.

The government also indicates that privilege and national security review of the materials seized is underway. The government states that such review was begun before the court issued its August 27th order indicating an intent to appoint a Special Master, intimating that such an appointment will not be necessary.

Notice of Receipt of Preliminary Order August 29, 2022

Inclined to Appoint Special Master to Review Mar-a-Lago Materials Seized, Federal Judge demands Status of Review and Itemization of Seized Materials by Tuesday, August 30, with Hearing Set for September 1, 2022.

Donald J. Trump v. United States, No. 22-cv-81294 (AMC) (S.D. Fla). Preliminary Order on Motion for Judicial Oversight and Additional Relief entered August 27, 2022.

In the Matter of the Search of Mar-a-Lago, No. 22-cv-81294 (AMC) (S.D. Fla.) Movant’s Supplemental Filing in Support of Motion for Judicial Oversight and Additional Relief filed August 26, 2022.

Former President Donald J. Trump has challenged the constitutionality of a search and seizure conducted at his Mar-a-Lago residence on August 8th and has moved the court for the Appointment of a Special Master to manage review of the documents and things seized.  

The federal court in the Southern District of Florida has indicated a “preliminary intent” to appoint a special master, subject to the submission of briefs on August 30 and 31st and a hearing before the court on September 1, 2022 at 1 p.m.

The court has ordered the United States to provide a detailed report of the status of its review of the seized materials as well as a detailed account of what was seized and removed from the Mar-a-Lago residence on August 8.

Supplementing its initial motion to the court, counsel for the former president note that the redacted affidavit supporting issuance of the warrant authorizing the search, released on August 26, provides little insight into any necessity for it, particularly as continuous cooperation had been demonstrated, and particularly as the use of police powers seemed needless where compliance with a civil statute, the Presidential Records Act, was said to be in issue.

Published reports indicate that national security agencies are reviewing materials seized.  Whether review will be said to be complete by the time of this week’s briefing, which could be argued to obviate any need for a special master, remains to be seen.  See Classified Documents Seized from Trump’s Home Undergoing Security-Risk Assessment.  Wall Street Journal, August 28, 2022.  

 

2022 08 27 22-81294 Preliminary Order on Motion for Judicial Oversight and Additional Relief

2022 08 26 22-81294 Movant’s Supplemental Filing in Support of Motion for Judicial Oversight and Additional Relief

 


 

Redacted Affidavit in Support of Warrant to Search Former President’s Residence Reveals Background Information and Theory Concerning Alleged Presence of Classified Materials But Conceals Details


 

In re: Sealed Search Warrant, No. 22-mj-8332 (BER). Redacted Affidavit in Support of an Application Under Rule 41 for a Warrant to Search and Seize docketed August 26, 2022.


The Department of Justice has complied with the U.S. District Court’s order to file a public copy of the affidavit supporting a search and seizure of former President Donald J. Trump’s residence, which occurred on August 8, 2022.  

 

The Department of Justice has outlined the reasons for the redactions made to the documents, which were reviewed by the court before the affidavit was released.  The federal government sought redactions to protect: 1) witness identities; 2) investigative plans or “roadmaps”; 3) Rule 6(e)[grand jury] materials; 4) law enforcement safety; 5) privacy of involved individuals.

 

The redacted affidavit recites that in January, 2022, the National Archives and Records Administration (NARA) received fifteen boxes of documents transferred from the former president’s Florida residence.  NARA became concerned because documents bearing classification markings were included in the transmittal, and was also concerned about the organization and presentation of those materials.  

 

NARA contacted the Department of Justice about these concerns, which prompted the Federal Bureau of Investigation to open a criminal investigation to explore how documents bearing classification markings were removed from the White House, the nature of any storage at the former president’s Florida residence, whether additional materials were stored there, and who was involved in the removal and storage of classified informative in an unauthorized space. 

 

Investigation confirmed the presence of documents marked classified within the transmittal to NARA.  Review prompted the observation that National Defense Information (NDI) was likely within those documents, and that the storage of the fifteen boxes sent to NARA had been at an unauthorized location. 

 

A section of the affidavit provides the caption “There is Probable Cause to Believe that Documents Containing Classified NDI and Presidential Records Remain at the Premises,” but the section is otherwise entirely redacted, with the exception of a recital concerning the location of documents in unauthorized spaces, a reference to ‘violations,’ and a description of the area to be searched.  Concern about the presence of third parties is expressed.  

 

Much of the affidavit recites what the Federal Bureau of Investigation proffers as support in the law for issuance of a warrant to search the former president’s residence and to seize any responsive materials found there, which would include materials believed to be subject to the Presidential Records Act.  

 

The affidavit mentions a published report describing the presence of moving vans at the former president’s Florida residence in January, 2021, and discloses that NARA was advised in May, 2021 that Presidential Records Act materials had been found and were ready to be retrieved. 

 

The affiant reiterates that inventory of the documents transferred to NARA in January, 2022 bore classification markings at high levels of restriction and that those documents were likely to contain National Defense Information (NDI).  

 

Because of believed violations of laws addressing the management of classified information and the belief that materials illegally possess would be found at the former president’s residence, a warrant was sought, with procedural assurances to ensure proper management of seized materials proffered.  

 

Notice of Filing by United States August 26 2022

[Redacted] Affidavit in Support of Application for Warrant Unsealed August 26 2022

[Redacted] Memorandum of Law Supporting Redactions Unsealed August 26 2022

[Redacted] Attachment Itemizing Redactions Unsealed August 26, 2022

 

 

Former President Challenges FBI Raid on Residence, While Magistrate Holds Affidavit in Support of Warrant Must be Disclosed


In the Matter of Search of Mar-a-Lago, 22-cv-81294 (S.D. Fl.).  Motion for Judicial Oversight and Additional Relief, August 22, 2022

In re: Sealed Search Warrant, 22-8332 (BER).  Order on Motions to Unseal, August 22, 2022.


Pursuant to a federal warrant, on August 8, 2022, Federal Bureau of Investigation agents searched for and removed materials from former President Donald Trump’s Florida residence.  Subsequently the former president was presented with a list of materials removed.  

Much speculation and discussion has attended this historic use of law enforcement personnel.  

The former president has raised Fourth Amendment challenges to the search of Mar-a-Lago.  Stressing that at all times documents relating to presidential records he was cooperative with federal authorities, he argues that the warrant itself was so nonspecific and overly broad as to offend the Fourth Amendment.

Moreover, the former president has moved for appointment of a Special Master to oversee the review of seized materials, arguing that a “clean team” of federal agents ought not be permitted to unilaterally conduct the review, and further arguing that the ‘receipt’ from the government is deficient in that it fails to describe fairly what was seized, precluding fair challenge to any review or disposition of seized materials. 

Although the scaffolding of the warrant has been disclosed, the affidavit has been withheld by the government, which has cited the personal safety of informants or witnesses and to potential disruption of ongoing investigations and proceedings.  Multiple media defendants have challenged that position, arguing that the public interest in this matter is sufficient to overcome the government’s interest in protecting sources and materials.

The magistrate judge who issued the warrant has agreed with the media intervenors, subject to any appropriate redactions, proposals for which he has invited the Department of Justice to submit by August 25.  

In re Matter of Search of Mar-a-Lago 22cv81294 (S.D. Fla.) Motion for Judicial Oversight and Additional Relief, August 22 2022.

In re Sealed Search Warrant 22mj08332 (BER) Order on Motions to Unseal August 22 2022.

Gadflies Allowed:  Maine School Board Cannot Banish Parent Whose Speech Causes Them Discomfort


McBreairty v. School Board of RSU22, et al., No. 1:22-cv-00206-NT (D. Maine).  Order granting temporary restraining order entered July 20, 2022. 


Public Schools, Public Participation.  Public schools in Maine are managed through town participation in Regional School Units, here RSU22.  The public is invited to participate in school decision making through time set aside for public comment at town school board meetings.  That public participation is governed by guidance requiring common etiquette and forbidding speech in excess of three minutes, gossip, complaints about individuals, defamation, and vulgarity.

Violation of these policies may result in removal from the meeting. 

Trouble in RSU22. Beginning in the autumn of 2021, and continuing until early May, 2022, parent and Hamden town resident Shawn McBreairty spoke at meetings about his concern that school library materials included sexual material not appropriate for students.

At times McBreairty was said to exceed three minutes’ speech, on one occasion he made a brash accusation, and he was criticized for playing a recording describing a sexual act that gave rise to his concerns.

In May, 2022, the school board wrote to McBreairty’s counsel, providing notice that McBreairty was suspended from attending further school board meetings for eight months.  Upon arrival at a June, 2022 board meeting, McBreairty was precluded from attending, and was issued a criminal trespass notice forbidding his attendance at RSU22 school functions, whether in person or online.

McBreairty sued the school board in federal court alleging violation of his First Amendment rights and demanding immediate injunctive relief.

Injunctive Relief and the First Amendment.  Courts cannot compel action or restraint from action before trial unless a complainant can demonstrate a likelihood of success on the merits of his case, that irreparable harm would result if injunctive relief were not granted, that the balance of equities favors relief, and that the public interest would be served by relief.  

Irreparable harm is presumed when speech is restricted.  

Obscene speech is not protected by the First Amendment.  Here, however, the court found that McBreairty’s reference to a sexual act lacked prurience and was not, in the context, without merit.  Thus the speech found objectionable by the school board was nonetheless protected by the First Amendment.

Foraging through Forum Analysis.  The government must establish the constitutionality of any speech restrictions the government imposes.  Review considers the places where speech will occur and the purposes of any gathering.  “Forum analysis,” which proceeds from great liberality in speech to some restrictions upon speech, while superficially appealing, is nonetheless not infrequently something of a bog.

The federal court in Maine has provided a primer describing the degrees and kind of government restrictions that are n .  Traditional public forums, such as parks, streets, or other places historically used for public communications, are free from regulation except where a government can demonstrate that any restriction is neutral and narrowly tailored to a compelling government interest. While time, place and manner restraints may be imposed, alternative communication channels must exist.  

Where a government has designated that a space be open to the public, the same rules as for traditional public forums apply. 

Limited public forums are open to certain groups or for certain topics, and speech may be restricted provided no permissible speech is restricted on the basis of viewpoint and that any restriction is reasonable in light of a forum’s purpose.  

Nonpublic government property not traditionally or by designation used for public conversations may be subjected to speech restrictions provided that the goal of any restriction is not the suppression of disfavored speech.  

Looking to Other Court’s Conclusions in the Absence of Controlling Precedent.  Neither the U.S. Supreme Court of the U.S. Court of Appeals for the First Circuit has decided what sort of forum a school board meeting is, suggesting that the court might look to the determinations of other courts, most of which have found that school meetings are limited public forums.  

The court rejected McBreairty’s argument that school boards are traditional public forums subject to only the most narrow government restrictions.  School boards meet for particular purposes to discuss particular topics:  as such, school boards may reasonably impose order on those proceedings.    

As a limited public forum, a school board may regulate access in light of the forum’s purposes but the state may not unreasonably exclude speech based on viewpoint.  

Distinguishing between content and viewpoint based restrictions allows a governing body to restrict speech as it relates to the purpose of the forum while forbidding excluding points of view on matters that are otherwise related to a forum’s purpose.  

There May Be Some Discomfort.  The court found McBreairty’s public comments concerned the school.  Even if at times unorthodox or provocative, the court perceived that in the main McBreairty did not violate school board policy, although he did do so by referencing school personnel and exceeding time limits in speaking to the board.  

While the warning letter issued to McBreairty might have carried the potential to chill speech, as McBreairty appeared undeterred as a matter of fact, that issue is not central to the decision. 

Having rejected the idea that McBreairty’s speech was obscene, the court pointed with concern toward what appeared to be an ad hoc and cumulative approach to McBreairty’s appearances before the board.  Any discomfort experienced by the board cannot justify restricting protected speech.

This Long is Too Long.  Even if viewpoint discrimination were not conclusively established, an eight month ban on McBreairty’s presence at school board meetings is unreasonable, the court found.  

Injunctive Relief Awarded.  The court found that there is a likelihood that McBreairty will prevail on his as-applied First Amendment challenge and ordered the school to refrain from enforcing the penalties contained in its letter and in the trespass notice.  While the school board has an interest in the orderliness of its meetings, that does not require months-long forfeiture of First Amendment speech rights.

McBreairty v. School Board of RSU22, No. 22-cv-00206 (D. Maine). Order granting TRO July 20, 2022