Looking at the Eleventh Circuit's Trump Decision
Taking a deeper dive into what the Court did and why.
“This appeal requires us to consider whether the district court had jurisdiction to block the United States from using lawfully seized records in a criminal investigation. The answer is no.”[1]
Less than two weeks ago (December 1, 2022) a unanimous panel of the United States Court of Appeals for the Eleventh Circuit ruled that Judge Eileen Cannon (a U.S. District Court for the Southern District of Florida) lacked jurisdiction to order that a Special Master review documents taken in a search of former President Donald Trump’s Mar-a-Lago residence earlier this year.
Court-watching has become sport. Decisions are reduced to wins and losses. A court’s decision is reported in the media (whichever source you watch), ‘explained,’ and the carnival moves on with one side happy, one side mad, and a legal system left in the wake with either less or more legitimacy depending on your ‘side.’ A missing piece of coverage is often a plain explanation of what the court did and why. Of course, in a post-truth world, maybe such explanations do not matter. I hope that is not the case.
Court layers
Federal and state court systems have multiple tiers. The bottom tiers of both systems contain the courts that hear jury trials and bench trials (a trial where a judge is hearing evidence and deciding instead of a jury). In many states, courts at this level are known as General District Courts and Circuit Courts). Often, other courts have been created at this level or below where small claims, juvenile and/or domestic relations, traffic courts, and drug courts might exist to deal with specific types of cases.
Above that ‘trial court’ tier is often an appellate court – that is a court where a party that has lost a case in the trial courts can appeal the decision by arguing that a jury or judge made a mistake. A party losing a case in the appellate court can often appeal that decision to a higher appellate court (a ‘Supreme Court’ in some states). For the most part, decisions from those state ‘supreme courts’ are final.[2]
“We are not final because we are infallible, … we are infallible only because we are final.”
Justice Robert Jackson, Brown v. Allen (1953)
The federal court system is similarly structured. First, there are United States District Courts. These are the federal trial courts where most cases start. A party losing in one of the District Courts can appeal decisions to the United States Circuit Court of Appeals for the circuit where they are located. District Courts cover a state. If the state is small (like Maryland, for example) there might simply be a District Court for the entire state. If a state is larger, the District might be split into additional districts - eastern districts, western districts, northern districts, and/or southern districts. Within those ‘districts,’ there might be a further delineation into divisions (the Eastern District of Virginia, for example, has an Alexandria Division, a Richmond Division, a Newport News Division, and a Norfolk Division).[3]
A party losing in a Court of Appeals can appeal that decision to the United States Supreme Court; however, in the vast majority of cases, the U.S. Supreme Court does not have to ‘grant certiorari’ (agree to hear the case on appeal). A decision by the Supreme Court not to hear an appeal means that the decision of the Court of Appeals is final. The Supreme Court’s decision to hear an appeal might result in a final decision supporting the decision by the Court of Appeals, or the Court might decide that the Court of Appeals was wrong and that the case should either end or go back to the federal trial court for further proceedings.[4]
Jurisdiction
To understand either the federal or state court system begins with understanding the concept of ‘jurisdiction.’ You may have heard someone say ‘that is out of my jurisdiction’ or watched a show or movie where the police are chasing a suspect and have to pull up short at the city or county limit sign to stay on their turf.
Same general concept.
‘Jurisdiction’ is a court’s turf. Some courts have general jurisdiction and other courts have limited jurisdiction – simply meaning that some courts can hear all sorts of disputes (general jurisdiction) while other courts can only hear a limited set of disputes (limited jurisdiction). To understand the difference requires taking a step back historically to see the big picture. There were originally a group of colonies that were subject to the laws of England. When those colonies declared their independence, the colonies stated that they had their own inherent authority to rule themselves.[5] That ‘rule ourselves’ concept applied to exercising governmental powers and resolving disputes between parties.
The colonies, each with their inherent authority, originally agreed to join together in a confederacy – where the former colonies (now states) agreed to affiliate with one another without giving up much of their inherent authority. That effort was unworkable from the start. The states went back to the drawing board knowing that something far more substantial was needed if the states were going to create some sort of lasting union. The states agreed to create a constitution where a portion of each state’s inherent authority would be granted to a central government. Since giving away that authority to a central government altered the state’s ability to exercise authority, states had to vote to ratify (approve) the new agreement. Some states ratified the constitution right away (Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut). Other states opposed ratification on the basis that the new constitution did not adequately protect individual rights. As a result, the Bill of Rights was created, and Massachusetts became the sixth state to ratify and so on.[6]
So, states started out with all of the power and had to delegate power to the federal government (state in the Constitution what the government could or could not do). This meant that powers given (delegated) to the federal government were limited – that is, the federal government was limited to using the authority the states had delegated to it. Federal courts, thus, are courts of limited jurisdiction[7] – meaning that their ability to hear cases must come from some delegation given to them in the Constitution or provided in some congressional law giving them the ability to hear cases (because the states had delegated the power to Congress to make such laws).
State courts, as the courts of the entities having, in theory, inherent authority, have general jurisdiction. They are able to hear all disputes unless it is an area where the federal courts were delegated authority.
That side trip into an episode of Schoolhouse Rock is to point out a basic principle that lies at the heart of our federal system – states have inherent authority to govern, and the federal government has delegated authority to govern. So, state courts have general jurisdiction to hear all types of disputes because that is authority they had from the beginning. States might choose to limit that general jurisdiction by creating some courts to hear specific kinds of disputes or disputes over certain dollar amounts. Federal courts, on the other hand, have the jurisdiction that the states agreed to give up in creating the constitution.
Beyond that general discussion of jurisdiction is the question of whether a particular court has jurisdiction over a specific dispute. In the same way that you determine whether a state or federal court writ large has authority over a certain type of dispute, you must then determine whether a specific court in the federal or state system has jurisdiction over a particular dispute. For a federal court to have jurisdiction – for a legal dispute to be ‘on the court’s turf’ -- the court must not only have jurisdiction over the parties involved in the dispute (personal jurisdiction) but must have jurisdiction to actually involve itself in the dispute (jurisdiction over the subject matter the individuals are disputing). For federal courts this might be because a federal law is at issue (maybe an employment discrimination case brought under the Americans with Disabilities Act) or because the dispute involves parties from different states (and the states agreed in the Constitution that the federal court system would resolve such disputes). A federal court’s jurisdiction must be rooted in the Constitution.
Now, about the Eleventh Circuit’s decision …
Donald J. Trump v. United States of America
The facts leading up to the Eleventh Circuit’s decision are well-known. For a year and a half after former President Trump left office, the National Archives and Records Administration (NARA) and the Department of Justice (DOJ) made efforts to obtain records the former president improperly took to his residence at Mar-a-lago, Florida. Eventually, after the former President returned many documents, including a significant number of classified documents, NARA had reason to believe there were additional documents in the former President’s possession. The former President conducted an extensive search and turned over another envelope of classified documents (17 marked ‘top secret’) to DOJ and ‘certified’ that all documents had been returned. DOJ believed additional documents were still in the possession of the former President and obtained a search warrant in the Southern District of Florida to conduct a search of Mar-a-lago of additional classified documents, Presidential Records, or evidence of the destruction of such documents. The search team from the Federal Bureau of Investigation (FBI) found approximately 13,000 documents totaling over 22,000 pages responsive to the search warrant.
Some weeks after the search, the former President filed a legal action in the United States District Court for the Southern District of Florida asking the Court to 1) appoint a special master to review documents and determine which should be returned to the former President, 2) prevent the United States from reviewing any of the seized material before a special master was appointed, 3) order the United States to provide the former President a detailed list of the documents taken, and 4) order the United States to return some items.
The District Court initially did not find a basis to exercise jurisdiction over the dispute and asked the Trump legal team to argue why jurisdiction existed. The former President argued that the Court had equitable and ancillary jurisdiction over the dispute. Equitable jurisdiction in the Court’s ability to ‘right a wrong.’ For federal courts, equitable jurisdiction is rare:
Only the narrowest of circumstances permit a district court to invoke equitable jurisdiction. Such decisions “must be exercised with caution and restraint,” as equitable jurisdiction is appropriate only in “exceptional cases where equity demands intervention.” In re $67,470, 901 F.2d 1540, 1544 (11th Cir. 1990); see also Hunsucker, 497 F.2d at 32.
Trump v. United States, USCA11 Case: 22-13005 * 11. The District Court accepted the former President’s argument, and determined that the special factors surrounding an FBI search of a former President’s residence made Trump’s case one of the exceptional instances where a court should exercise equitable jurisdiction. The Court appointed a special master, stopped the government from reviewing documents for its ongoing investigation, and all involved began seeking appellate review of the Court’s decisions.
The first part of the decision to fall was the Court’s direction that the special master review classified documents recovered at Mar-a-lago. That decision did not go to the merits of whether the District Court had been correct to intervene in the matter in the first place.
The Eleventh Circuit’s recent decision addresses that issue head-on. After summarizing the former President’s arguments and providing that the government disagreed with each, the Court stated:
These disputes ignore one fundamental question—whether the district court had the power to hear the case. After all: “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation omitted).
See footnote 1. The Court found that Judge Cannon’s decision was just such a judicial decree. The Court explained that in order for a court to exercise equitable jurisdiction, a case must pass a four-part test that has its roots in the Fifth Circuit case of Richey v. Smith.[8] Those factors are:
1. Whether the government displayed a “callous disregard” for the plaintiffs constitutional rights;
2. Whether the plaintiff has an individual interest in and need for the material whose return he seeks;
3. Whether the plaintiff would be irreparably injured by denial of the return of the property; and
4. Whether the plaintiff has an adequate remedy at law for the redress of his grievance.[9]
When applying those four Richey factors to the former President’s case, the Court not only found that Trump failed the test, they found it was not even a close call. It is hard to disagree when looking at the overall picture – that the Government was conducting a search of property under the authority of a search warrant issued by a United States Magistrate Judge. As the Court explained, there is nothing under the law that allows a former President to demand special treatment or expect that laws that apply to all Americans under investigation somehow do not apply to him or her. The Court explained that all of Trump’s arguments as to how he should be treated would wreak havoc on the justice system if applied to all. That is best understood by addressing each of the four Richey factors.
First, the former President needed to show that the government acted with a “callous disregard” for his constitutional rights. The District Court had not found such a disregard, and the Eleventh Circuit agreed. If the law was read in such a way to find that a subject of an investigation could claim that their constitutional rights were violated simply because a judge they disagreed with issued a search warrant or because they felt the government was ‘out to get’ him or her, everyone subject to a warrant or investigation would be able to meet the “callous disregard” threshold and courts would be overrun with claims that special masters should be appointed.
Second, the former President needed to show that he not only had a material interest in property taken under a warrant, but that he needed the return of the property. Again, the Eleventh Circuit explained that this factor doesn’t mean that someone wants property back – or else anyone who has a search warrant executed at their home or work would be able to claim need. To illustrate the former President’s ‘need’ for his property to be returned, his legal team used the example that Trump’s passports had been confiscated – but the problem with the argument was that the passports had been returned to Trump long before his attorneys argued that they needed to be returned. In a rebuke to Judge Cannon, the Eleventh Circuit wrote that the Judge had not really even done her job in weighing the information before her but had simply decided based on the volume of the material seized that some of it must be of need to the former President.
Third, the former President needed to establish that he would be irreparably injured if property seized was not returned to him. The Eleventh Circuit stated that the former President had offered no evidence to support a claim that he would suffer irreparable injury if materials were not returned. With regards to classified materials, the Court explained that the President had no right to the material and any claim by Trump that there was a risk of disclosure would not constitute harm to Trump. Additionally, for unclassified materials taken, the Court again explained that the former President had not explained how he would be any more harmed than any subject of a search warrant – that accepting his argument would allow every search warrant recipient claim irreparable harm and demand a return of property.
Similar reasoning guides our approach to the other potential injury identified by Plaintiff: the threat and stigma of future criminal prosecution. No doubt the threat of prosecution can weigh heavily on the mind of anyone under investigation. See Richey, 515 F.2d at 1243 n.10; see also Deaver, 822 F.2d at 70. But without diminishing the seriousness of the burden, that ordinary experience cannot support extraordinary jurisdiction. Alan Brown, 341 F.3d at 415; see also Cobbledick v. United States, 309 U.S. 323, 325 (1940).[10]
In essence the Eleventh Circuit is stating the obvious – if part of the irreparable injury the former President was claiming was the fact that the materials seized might be used to investigate him or that he might face a threat of criminal prosecution, doesn’t the drug dealer who has cocaine seized pursuant to a warrant have the same argument? Won’t allowing the government to keep the cocaine cause a threat of prosecution? And if the Court were to agree to let Trump have his material back, how would justify not ordering that the cocaine be returned?
As to the fourth Richey factor, the former President needed to show that he had no remedy at law for the redress of his grievance. The Eleventh Circuit dismissed the District Court’s analysis and asked a simple question:
… adequate remedy for what? The answer is the same as it was in Chapmam. “No weight can be assigned to this factor because [Plaintiff] did not assert that any rights had been violated, .e., that there has been a callous disregard for his constitutional rights or that a substantial interest in property is jeopardized.” 559 F.2d at 407. If there has been no constitutional violation—much less a serious one—then there is no harm to be remediated in the first place.[11]
Without any plausible argument that any of the four Richey factors applied, the Eleventh Circuit made a simple observation – that the only way to support the District Court’s decision would be to carve out a special exception in the law for former Presidents or adopt a view of the law which would give each and every criminal defendant the same rights that the former President claimed for himself. With the first being anathema to our American understanding of criminal law and the second being laughable in how it would thwart all criminal investigations, the Court found that the only possible result was that Trump’s arguments be rejected, that they find that the District Court had never had any ability to exercise jurisdiction, and that the decision be reversed.
As the Court explained:
The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.[12]
[1] https://docs-cdn-prod.news-engineering.aws.wapo.pub/publish_document/5c87d9b8-631f-41c7-92e8-129f412d0e0f/published/5c87d9b8-631f-41c7-92e8-129f412d0e0f.pdf
[2] Though sometimes particular types of cases can be further appealed to the United States Supreme Court.
[3] https://www.vaed.uscourts.gov/court-info
[4] That description of both state and federal judicial systems is simplistic. Both state and federal courts, including state and federal appellate and supreme courts, have cases that handled in specific ways – where review by appellate courts is ‘by right’ (guaranteed if a party wishes to appeal a decision – as in you have ‘the right’ to appeal).
[5] Of course, ‘rule ourselves’ was more figurative than literal – those championing the inherent rights of man really meant the inherent rights of white property-owning men to rule themselves and rule people who were not white property-owning men. The colonies at the founding are often viewed as a bloc of similar interests when, in actuality, nothing could have been further from the truth. Some colonies (Virginia, for example) had leaders who desired to copy the English landed-gentry system but did not want control of that system to be centered in London. Other colonists wanted to create a puritanical theocracy. Others desired to create a society valuing religious freedom. Still others’ main aim was to create a system that copied Caribbean plantations (and the belief of racial inferiority and servitude). One common aim, amongst the differences, was for self-rule rather than English rule (at least for the minority of voices in a position to exercise power). For further reading on the topic, check out American Nations - Colin Woodard - Author.
[6] https://www.usconstitution.net/ratifications.html. Interestingly, of the first 13 states, only Rhode Island decided to put the question of ratification up for a popular vote. The vote was 2708-237 against ratification. Just over a year later, Rhode Island took up the question again but had their state legislature vote. Ratification passed 34-32 making Rhode Island the last of the original 13 states to ratify.
[7] “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation omitted).
[8] Richey v. Smith, 515 F.2d 1239 (5th Cir. 1975).
[9] Richey, 515 F.2d at 1243-44 (quotation omitted).
[10] See fn. 1 at page 17.
[11] See fn. 1 at page 19.
[12] See fn. 1 at pages 20-21.