Posted on by justlawfulblog

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

 

Posted on by justlawfulblog

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

 

 

Posted on by justlawfulblog

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.

Posted on by justlawfulblog

Private Property, Public Problems: Landlords Challenge Massachusetts’ Eviction Moratorium in Federal and State Proceedings

Baptiste, et al. v. Secretary of Housing and Economic Development, et al., No. 1:20-cv-11335 (MLW) (D. Mass.).  Oral argument on motions for preliminary injunctive relief and for dismissal or stay held September 2 and 3. 

Matorin and Smith v. Executive Office of Housing and Development, No. 2084CV01134 (Sup. Ct.).  Memorandum and Order on Motion for Preliminary Injunction entered August 26, 2020.

Massachusetts’ Eviction Moratorium. In response to the health and economic crisis precipitated by the COVID-19 virus, last spring the Massachusetts legislature enacted a law suspending processes of eviction and foreclosure.  Regulations governing this moratorium forbade many communications between landlord and tenant except as dictated by the state, including advising tenants in obtaining financial and legal aid.  

Originally intended to expire in mid-August, the moratorium has been extended into mid-October.  It is not known whether or for how long the suspension will remain in effect, but it may, potentially, extend up to a year beyond the culmination of the COVID-19 crisis.

The Massachusetts act prohibits initiation of eviction proceedings as well as processes in aid of those proceedings occurring at or after the time the legislation and regulations became effective.  Although it is specifically stated that the moratorium does not relieve tenants of the obligation to pay rent, in practice the measures have been interpreted to permit exactly that.

Landlords Respond. Small landlords have launched state and federal challenges, asserting that the state law and regulations unconstitutionally inhibit property owners’ access to the courts, violate First Amendment rights both by proscribing and prescribing speech, constitute physical and/or regulatory takings, and violate the Contracts Clause.

No injunctive relief in state court, but ruling on motion for injunctive relief in federal court promised for September 9th. Having lost their motion to enjoin the act in state court, this week two days of argument were had in federal court, at the close of which the court invited commentary on issues arising during proceedings.  The federal court has scheduled a hearing on September 9th and has promised a ruling on injunctive relief at that time.  

Private enterprises, not public agencies. Plaintiffs assert that the state has demanded that landlords have been conscripted, without consent and without compensation, to act as state housing authorities by providing free lodging indefinitely to individuals who have no right to be on the landlords’ properties.  Plaintiffs further assert that the moratorium decimates leases and other contracts.  The Commonwealth denies that the landlords face the hardships they described as the state has enacted only temporary measures, the impact of which may be less than landlords perceive.  

Only temporary. The state has responded to plaintiffs’ claims by asserting  immunity and by arguing that the moratorium is a valid exercise of the state’s plenary emergency powers for the general welfare, and that no rights have been deprived or infringed by its temporary measures.  The Commonwealth has argued that no taking has occurred, that there is no right to injunctive relief in takings cases.  

No end in sight. Just as there is no certainty concerning the duration of the eviction moratorium, so too is there no certainty concerning resolution of this litigation, which has attracted the attention of advocacy groups seeking to serve as amici.  

Post argument submissions. Plaintiffs have submitted two post-argument memoranda of law, the first addressing the proper standard of review for deprivations of rights of petition, arguing that scholars perceive that some rights are so fundamental that only strict scrutiny will suffice. 

The Commonwealth’s response is that there can be no deprivation of rights of access to the courts where, in the Commonwealth’s view, there is no underlying case for adjudication.  A temporary interruption of enforcement mechanisms during an emergency works no harm where those remedies will become available when the emergency is over. 

Plaintiffs observe that the emergency is all but over and that the successful implementation of social distancing and other recommendations make the state’s draconian prohibitions unnecessary now if ever they were.  

Plaintiffs point to Massachusetts precedent finding significant deprivations of rights of access to the courts to have occurred over a period of weeks, and that the indefinite nature of the moratorium only enhances deprivations already suffered.  

The Commonwealth has commented on the state’s favorable view of statutory and regulatory severability which would permit the court to excise any portion of the moratorium provisions found to be unconstitutional while leaving the remainder intact.

The Center for Disease Control Weighs In. Plaintiffs point to a newly promulgated federal prohibition on evictions as proof that the state’s measures are needlessly harsh.  The federal measure permits evictions while permitting tenants to avoid eviction by submission of proof of financial difficulty and/or ability to obtain new housing, thus demonstrating that the state’s perceived link between access to the courts and public health is ill-founded.  

Ruling on Motion for a Preliminary Injunction in Superior Court 

2020 08 26 Matorin-v-Commonwealth-of-Massachusetts-Decision-on-Preliminary-Injunction

Memoranda of Law Submitted in Federal Court

2020 07 15 Memorandum of Law in Support of Preliminary Injunction

2020 07 24 Memorandum of Law in Support of Dismissal or Stay

2020 07 25 Opposition to Motion for Preliminary Injunction

2020 09 03 Supplemental Memorandum in Opposition to Preliminary Injunction

2020 09 03 Supplemental Memorandum Addressing Newly Raised Issues

2020 09 03 Supplemental Memorandum Addressing CDC Order

Centers for Disease Control Order

https://www.federalregister.gov/documents/2020/09/04/2020-19654/temporary-halt-in-residential-evictions-to-prevent-the-further-spread-of-covid-19

Posted on by justlawfulblog

Court May Limit Public Access Where Proceedings Involve Minors and Intimate Facts

Jane and John Doe, et al. v. Aberdeen School District, et al., No.  18-cv-00125 (N.D. S.D.) September 17, 2019.

The First Amendment requires that judicial proceedings be open to the public, the Rules of Federal Procedure require identification of the parties before the court.  Nonetheless, courts may permit pseudonymous proceedings where the totality of the circumstances indicate there is a substantial privacy right that permits limitations of access rights. Courts may consider whether the government is being challenged,  whether intimate facts are involved in the case, whether criminal prosecution may ensue, and, in the Sixth Circuit, whether minor children are plaintiffs.  As the facts in the case are both intimate and involve children, the court will permit pseudonymous proceedings.

Doe v. Aberdeen Sch. Dist. (D. S.D., 2019)