Former President Donald Trump’s lawyer presented his stew of rapidly changing, sometimes conflicting, always ephemeral legal arguments in the case stemming from the August raid of Mar-a-Lago to a panel of appellate judges on Tuesday — who often reacted with incredulity.
“Think of the extraordinary nature from our perspective: An injunction against the executive branch in a pre-indictment situation,” 11th Circuit Chief Judge William Pryor implored Trump attorney James Trusty during the oral arguments. “Under the separation of powers, the judiciary doesn’t interfere with those kinds of prosecutorial and investigatorial decisions.”
Trump has tossed out one legal argument after the next ever since the raid, seemingly to at least slow down the government’s criminal investigation into his improper retention of a vast number of classified documents and other government materials: It’s an attorney-client privilege issue, now an executive privilege issue, no, it’s really a question of designating presidential vs. personal records, or actually, the warrant was improperly carried out.
His legal team has been enabled in this tossing-spaghetti-at-the-wall approach by Aileen Cannon, the district judge who initially allowed a special master to sift through the documents for those now mostly abandoned privilege claims, and to stop the government from using the documents in the meantime. The Trump appointee’s decision was widely panned at the time, given the thinness of Trump’s arguments.
The government already succeeded in getting part of Cannon’s order overturned by a different 11th Circuit panel — featuring two of the same judges that heard the arguments Tuesday — and has been permitted to keep the classified documents out of the special master’s purview and to use them in its investigation.
Now, the government is trying to get her whole order tossed as the special master process has stretched on for months, grinding its investigation to a halt.
On Tuesday, Trump lawyer James Trusty was left dancing around as the judges grilled him.
Pryor expressed his concern that they’d be opening the floodgates to a workaround should any target of federal criminal investigations in the future seek to stymy those probes.
Trusty lamented in response about the “thousands of personal materials” that were taken from Trump, begging the judges to think of the “impact on the community when it comes to their view of the criminal justice system.”
“You’ve talked about all these other records and property that were seized,” Pryor cut back, alluding to Trusty’s repeated mention of Trump’s loss of golf shirts and a picture of Celine Dion.
“I don’t think it’s necessarily the fault of the government if someone has intermingled classified documents in all kinds of other personal property,” he added, chuckling.
Throughout the questioning, the judges expressed skepticism towards Trusty’s arguments.
They repeatedly pressed him for evidence that there was something illegal about the initial raid that would greenlight their involvement at this early stage in the investigation.
“The entire premise of the exercise of this extraordinary kind of jurisdiction would be that the seizure itself is unlawful — if you can’t establish that, then what are we doing here?” Pryor asked.
At another point, following Trusty’s prolonged airing of grievances over the raid and behavior of the FBI agents, Judge Britt Grant delicately asked whether it’s “rare” for the target of a search warrant to feel that it’s overreaching.
When Trusty said that it’s “no real secret” how Trump’s team feels about a handful of arguments in its favor, many of them very new, the chief judge had difficulty hiding his disdain.
“It might be a secret to this record,” Pryor interjected. “I don’t see where that argument or case has been made, so for our purposes, it sounds like a secret.”
Despite the closest thing you can get to a shellacking in the prim and buttoned-up world of appellate court procedure, team Trump is continuing its “might as well try” approach.
Just minutes before oral arguments, Trump’s lawyers filed a new document with the amenable Judge Cannon, asking that the affidavit underlying the Mar-a-Lago search warrant be unsealed to see if the FBI agents violated Trump’s rights during the raid.
“The fact the Government took a huge volume of personal and family photographs, newspapers, thank-you notes, campaign materials, books, and golf shirts demonstrates that this search and seizure was nothing more than a general ransacking,” Trusty and his peers huffed.
They forgot to mention the Celine Dion picture.