2022 in Review: The FBI Searches Mar-a-Lago

conversations we returned to

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EPISODE RESOURCES

We only scratched the surface of our coverage of these events. Join our Premium community to hear all of our More to Say episodes on the FBI’s search of Mar-a-Lago and the ensuing legal battles.

TRANSCRIPT

Sarah [00:00:07] This is Sarah Stewart Holland. 

Beth [00:00:08] And this is Beth Silvers.  

Sarah [00:00:10] Thank you for joining us for Pantsuit Politics.  

Alise [00:00:25] Hi, everyone. It's Alise, the managing director of Pantsuit Politics. Our team has really enjoyed putting together these final episodes of 2022 and reflecting back on the biggest news stories of the year with you, choosing what stories to cover on the show can be a difficult process for us, particularly when we feel the push and pull of the urgent versus the important. One way we are able to balance that is through the work we do for our premium subscribers. Our premium content includes eight bonus episodes each week. Four of Sarah's Good Morning news briefs and four of Beth's deep dives, which we call More To Say. More To Say in particular gives us room to cover stories that we either don't have time for on the show, or maybe to cover stories in a deeper, more analytical way. Beth is especially adept at breaking down legal news, which is some of what you'll hear on today's episode. We've pulled together clips from several More To Say episodes about the FBI's search of Mar-a-Lago. You'll also get to hear Sarah and Beth's immediate reactions to the story as it broke just in time for them to discuss it on a Thursday episode of More To Say, which we lovingly refer to as the spicy episode, since they often let loose and offer less nuanced takes than they do in other places. We hope you enjoy this look back at the initial search and the legal battles which continue to unfold. If you enjoy this content and are not already a premium member, you can subscribe on Patreon or Apple Podcasts. There are links on the show notes to learn more. We'll be back with new episodes and new premium content the first week of January.  

Sarah [00:02:13] Listen, here's the issue. Here's the issue. The issue is this man is ridiculous and his response to everything is ridiculous. And so it is difficult to stay in a serious posture. That's the issue.  

Beth [00:02:24] Like I feel like he... 

Sarah [00:02:25] Is that not fair?  

Beth [00:02:26] That's exactly the issue that I'm struggling with. I don't like using the word raid about this because his lawyer was there.  

Sarah [00:02:32] No, it wasn't a raid, they didn't break down the door.  

Beth [00:02:34] I mean, they didn't rush in with like spotlights [Inaudible] and it wasn't like a fishing expedition. They knew what they're looking for. They got a warrant.  

Sarah [00:02:43] Sounds like they got it.  

Beth [00:02:44] They went in and they got the things. The whole thing, everybody's like it's unprecedented in our history. Well, so is everything he did.  

Sarah [00:02:52] He's ever done. That's his vibe. Unprecedented is his vibe. Remember when he referenced his penis size during a presidential debate?  

Beth [00:02:59] I remember that.  

Sarah [00:03:00] You know what I mean? We knew what path we were on from the beginning. That's all I'm saying.  

Beth [00:03:05] Remember like yesterday when we were seeing pictures of the toilet with his handwriting on papers that had been shoved down.  

Sarah [00:03:10] Flushed down the toilet. 

Beth [00:03:10] Also I don't think we've seen before-- maybe I'm wrong but...  

Sarah [00:03:15] It is just the the the karmic justice of being consumed with her email server and you're just complete disregard for the storage and proper procedure regarding classified documents. Like it's just you can't write this sh**. And here's the other thing. There was a moment where I thought, okay, I'm Joe Biden, I'm pissed. Like, I just passed this amazing legislation and this is going to be the new story. So if you think this is about Joe Biden winning, first of all, you don't understand politics. He doesn't want us talking about Donald Trump. He wants us talking about his legislative victory. And then I'm also in the Liz Cheney space whereI loved in that interview where somebody was, like, this is bad politics. And she was, like, that's not the point. Like, this is not the point. The point is not the politics of it. The point is, at some point, we have to say it stops being about politics and starts being about applying the laws to the people we voted in to apply the laws.  

Beth [00:04:14] Well, also, the psychic jujitsu that happened to us over the last five years means that nothing you do around Donald Trump is good politics. There are no good politics around Donald Trump.  

Sarah [00:04:27] Right. He's just toxic.  

Beth [00:04:28] There are zero. He's winning when he's losing biggest. Like, it's always the same thing. It's the same thing with Alex Jones. He will find a way to monetize this verdict against him because these guys thrive on being counterculture, martyr, victim of everything, hero of their own story no matter what is happening. So there are no good politics around Donald Trump.  

Sarah [00:04:53] The victim and the hero at the same time.  

Beth [00:04:54] Yes. The thing that I kept thinking about as I watched truly idiotic tweets coming from Republican senators, it's like they know and I know and you know that the DOJ officials who greenlighted this, understand this will be scrutinized for 10 years. They understand now what will happen in scrutinizing this process. The judge who signed this warrant understands.  

Sarah [00:05:27] Exactly said [Inaudible] the judge. Yeah.  

Beth [00:05:29] Merrick Garland understands exactly how this is going to be torn apart. They would not have done this, I don't think, unless they were certain. And that has been my prayer all morning. Lord, hear this prayer. Let them not be out over their skis. Let this be the most unimpeachable thing that's ever happened. And I believe someone who is qualified to sit on the United States Supreme Court overseeing this is going to get this right. I really do.  

Sarah [00:05:55] Yeah. And do I think that this will help them among their base? Of course it does. But I don't care anymore. I don't care anymore.  

Beth [00:06:02] We just can't be held hostage by that forever because everything related to him is that there is no  other thing, so we cannot be held hostage to that.  

Sarah [00:06:12] No sort of moderate, average, independent American is falling for the they're all out to get me. Still? Still? Really? Your own appointed FBI director is out to get you. It's losing its-- you can only trott it out so many time. Thou does protest too much before it starts to lose its impact except among the people who are praying in the fake jail cells. You know what I'm saying?  

Beth [00:06:43] I do know what you are saying.  

Sarah [00:06:43]  I know my accent really comes out when I talk about jail cells just for the side note.  

Beth [00:06:49] My accent is out too because I spent a whole week in western Kentucky. So I'm saying things like over yonder [Crosstalk]. I don't mean to be a wet blanket. Like oftentimes I find the Twitterification of moments like this hilarious. When Brett Kavanaugh had people outside of Morton's where he was eating his steak, I thought the Twitter memes about that were hilarious. Like, I enjoyed that night very, very much. I couldn't this time because I do feel a little bit sick. We are going to a dark place. This is going to be hard. It is going to get very, very difficult before it gets better. It also feels to me like this is the only way out. And I want out. 

Sarah [00:07:34] Yeah. In moments where it is hard and also ridiculous, sometimes humor is the best strategy.  

Beth [00:07:40] You got to cope. Yeah.  

Sarah [00:07:41] And it's like we've all been dragged down the drain with this man winning his friggin election-- not even winning because more people didn't vote for him-- because he used FBI investigations against Hillary Clinton. And now he is just crying out, throwing a tantrum at the highest level because now he is the subject of an [Inaudible]. You can't write this shit. You can't write it. And so in moments like that, what are you supposed to do?  You can't do anything but just sort of half delight, half sob and weep in the ridiculousness of it all of it.  

Beth [00:08:26] And it's tough. This is not even his biggest legal problem this week.  

Sarah [00:08:32] No. No.  

Beth [00:08:33] He's going to be deposed this week. I mean, there is a lot going on around him. It is tightening from every angle. And, of course, that is going to speak to people for whom the persecution is the point.   

Sarah [00:08:48] And it's going to make him more dangerous 100%.  

Beth [00:08:50] It is going to make him more powerfull. And it is going to make him more dangerous. It is going to raise more money. That's why all of these people who preferred to leave him for dead for a while are going to hop back on. Like, to the extent that you thought some of these Republicans in national leadership were trying to distance from him, they are going to hop right back on now. They are. Again, I just think there's nothing else to be done about it.  

Sarah [00:09:13] The only way through is through it. You know what I'm saying.  

Beth [00:09:15] That's right.  

Sarah [00:09:16]  The only way is through it. The only way is through the  red hot center of this disastrous presidency.  

Beth [00:09:26] The problem with Donald Trump from the beginning has been an over identification with him.  

Sarah [00:09:31] Mm-hmm.  

Beth [00:09:32] You put a man on a flag, that's dangerous. We've been talking a lot for a couple of years now about  people on T-shirts is not a great idea. Putting a man on a flag is dangerous. There has been an over identification with him, and this is going to set off even more of that over identification with him. So what I don't want to do is on my side have an over identification about this. When I talk to people who love him about this, I want to be in a place of I hope they did this exactly right. This is a big deal. It is very serious. And I hope they did it exactly right. And I truly don't believe a federal judge would have allowed this to happen were there not some very tight information in front of that judge. And I am certain that there will be a congressional investigation of it. And so if something was done wrong here, we will know. I just don't want to get wrapped up in outcomes. And I don't want to be putting Merrick Garland on T-shirts now. Like, I just don't want to over identify anywhere because I think that's what brought us here.  

Sarah [00:10:36] Yeah, I agree. So that's what we're going to do.  

Beth [00:10:39] Have we said what we have to say about this for today?  

Sarah [00:10:41] I think so.  

Beth [00:10:41] Do you have any jokes that you thought were particularly funny?  

Sarah [00:10:45] My favorite was that Hillary Clinton should go on Rachel Maddow and laugh for 10 minutes because, again, the karmic justice of what was done to that woman and that election. And now that this is falling out over the handling of classified documents, it's just too much. It's too much.  

Beth [00:11:06] The only one that I could get myself to really chuckle at was the picture from way back when he's talking to the little boy who's like mawing the White House lawn, and it's like they even broke into my safe. I thought that was a little funny.  

Sarah [00:11:20] What does Donald Trump keep in a safe? I would love to know.  

Beth [00:11:23] Is that even true? I mean, I just don't want to accept his drama-filled characterization of this. 

Sarah [00:11:28] He probably has a safe. I believe he has a safe and I would be intrigued to know what is in it.  

Beth [00:11:33] His telling of this is going to be the most movie esque floodlights, guns blazing version.  

Sarah [00:11:40] And that's the thing. It tells you everything you need to know.  

Beth [00:11:44] A hundred percent.  

Sarah [00:11:44] That if the argument is this is politically motivated, then why was Trump the one telling everyone. If the politics is for in the Democrats favor, why was Donald Trump the one to tell the public?  

Beth [00:11:57] Because I think everything that happens to him, all he does is produce it. That's why January six is bothering him so much, because those hearings are well produced and he knows it. And so he has got to figure out his counterprogramming. And he's like, we're not gonna talk about a boring, document-driven search of his home. We're going to talk about him being treated like a terrorist, you know?  

Alise [00:12:29] The next conversation you'll hear was recorded in September seventh, almost exactly a month after the initial search of Mar-a-Lago.  

Beth [00:12:37] The special master order is everywhere right now. This order grants, in part, a motion from Donald Trump. It appoints a special master to review the stuff seized from Mar-a-Lago for both claims of attorney-client privilege and executive privilege. It also says to the Department of Justice, for now, temporarily, you may not review or use any of these materials for investigative purposes. You have to hold yourself while the special master does his or her review. This does not say to the Director of National Intelligence, you have to stop what you're doing. Remember that the director of National Intelligence has promised Congress, we're going to look at all this to determine what the national security implications are here, and we will get back to you. That work may continue. The work to criminally prosecute Donald Trump has to stop as to these records for now. So we'll talk more about that in a second. But that's what the order does in general. Let's talk about how the court got there. The first thing to know is that this is a new action. The Department of Justice is working with a grand jury. It went to a magistrate judge for a search and seizure warrant to search Mar-a-Lago. And then separately in Florida, Trump filed this action. So we are not in front of the magistrate judge who approved the search warrant. We're in federal court, southern district of Florida, and we're here in kind of a weird procedural way. The judge herself says this is somewhat convoluted. There is a rule of civil procedure that says if you had your property searched or seized by the government before you are indicted, you can initiate a stand alone action in the district where the property was seized to say that the government ought to return that property to you. So the court's jurisdiction exists only in equity under that rule. Meaning the court should only get involved in really extraordinary circumstances to ensure that justice is being done. So as the Court considers whether to get involved at all here, here's what the judge tells us. She says there has not been a compelling showing by Trump of callous disregard for his constitutional rights. We do not see that the government acted in such an outrageous way that the court needs to step in to protect him. However, the government took an awful lot of stuff, and I'm using stuff deliberately now because we know that there were 11,000 documents taking and 1800 other items. I'm really interested in what those other items are. We also know that the stuff the government took includes some things that are personal to trump (medical documents, tax documents) and that the government itself has told us it found more than 500 pages of material that could be subject to the attorney-client privilege. So the court says it appears that Trump has at least some need to get at least some of this stuff back. And it appears that if any of the sensitive information the government took that does actually belong to Trump is disclosed, that could harm him in a way that cannot be undone.  

[00:16:03] And then the court, I think, really goes out into leftfield. She says a wrongful indictment is a very big deal that carries a lot of stigma, especially if you're a former president. So we don't want the government using information that it ought not have in formulating an indictment. Now, I would say, in every case we don't want the government using information that it ought not have in an indictment that turns out to be wrongful, but that does happen every single day everywhere. The court also says that it's taking into account, "The undeniably unprecedented nature of the search of a former president's residence, his inability to examine the seized materials in formulating his arguments to date, his stated reliance on the customary cooperation between former and incumbent administrations regarding the ownership and exchange of documents, the power imbalance between the parties, the importance of maintaining institutional trust, and his interest in ensuring the integrity of an orderly process amidst swirling allegations of bias and media leaks." Okay, here is where I have a hard time finding the golden mean as it relates to Donald Trump, because I had a very strong and negative reaction to the court's characterization of things here. Undeniably unprecedented nature of the search, I agree with. This is unusual, and I don't want to pretend that it's not. Of course, it's usual for the government to do investigations of classified material being mishandled. That's usual. This kind of investigation about a former president is unusual, and that doesn't mean that we shouldn't do it or that there's anything suspicious or wrong about it. But it is unusual. It's unusual for a president to behave the way Trump has. So I don't want to pretend that that's not true. It does seem extremely dumb to me for Trump to complain in court about the fact that he hasn't had a chance to review the materials that were taken from him. Well, he had them for a year, and he had all this back and forth with the National Archives and Record Administration about whether he ought to have them or not. So it seems to me that if he doesn't know what's in those cartons at this point, that's on him, not on the government. I think his stated reliance on the customary cooperation between administrations is really silly, given that he has been largely uncooperative and deceptive in his correspondence with the government. This power imbalance between the parties to me is laughable. And I too would like to maintain institutional trust, but hearing that from Donald Trump and from a judge as a point in his favor seems pretty rich to me too.  

[00:18:40] So I do see here language that indicates to me that this judge is interpreting everything in the light most favorable to Donald Trump-- to put it mildly. Now, the government argued that this action can't go forward because Trump doesn't have any standing. The government says we took presidential records and he's not the president, so he's the wrong party to be here. The court rejects that and says, "Under our laws, if you have some colorable showing of a right to possess at least some property that has been seized, you are allowed to bring an action like this," and I personally think that is correct and should be correct for everyone, again, not just Donald Trump. The court says the party's filings, so what it read from the government and what it read from Trump suggests genuine disputes about which records are personal, which records are presidential. Whether some of those personal effects have evidentiary value or not. And that's why the court thinks it's appropriate to have a comprehensive review of the seized property. Now, I think, again, this is really shoddy legal work because that to me is the court putting the cart before the horse. Whether some personal effects have evidentiary value is a more substantive question in my mind then this court has jurisdiction to decide at this stage of the proceedings. I don't mean to get too far in the weeds here, but this is all kind of in the weeds stuff because we're talking about the collection of evidence in an investigation before we even get an indictment. The court also thinks it's appropriate to have a special master review the materials for attorney client privilege. Now, the government says we already did that, and we're prepared to turn over about 520 pages of potentially privileged material for the courts to review. Another round of screening is unnecessary here. And the court is very skeptical of that because there were at least two instances where investigators took material that they thought was potentially privileged back to the privilege review team. Now, in the hearings, it sounds like the government ultimately concluded that that material was not privileged and that this really illustrates that the investigative team was working with tremendous care. But the judge sees it differently and says, this shows that your process was shoddy and you might have left things out. And an outside reviewer can make sure that that's not the case. An outside reviewer, also the court says, increases the appearance of fairness. And the appearance of fairness is a theme throughout this order that the judge thinks because so many people are watching this and so many people are watching it with skepticism, we ought to do everything that we can do to make sure that people know the court is really protecting Trump's rights here. As it relates to executive privilege, the government asserts that Trump doesn't have executive privilege in his arsenal. He is not the executive. And the court says that arguably overstates the law. Arguably is a weird adverb to find when a court is sharing its analysis in an order. Usually the court says things much more definitively than that. The court says well the Supreme Court hasn't ruled out the possibility of a former president overcoming an incumbent president on executive privilege matters. And that's true. And she says because Trump can argue about it and the privilege review team did not screen for this, further review is required. Now I think that is complete nonsense and so do lots of people. There's a ton of criticism of this opinion out there. You need only Google special master to find everyone and their mother from both sides of the aisle, for generations of people who've worked in government saying this order is hot garbage. My favorite comes from former Attorney General Bill Barr, who-- when he wants to-- does have a way of putting things.  

Bill Barr [00:22:34] I think the whole idea of a special master is a bit of a red herring. The only documents that have been taken, it seems to me that there's a legitimate concern about keeping away from the government and insulating the government from would be documents relating to his private lawyer communications, him as an individual and as outside lawyers. If there's stuff like that, fine. Identify it. If there doesn't appear to be much of it, I'm not sure you need a special master to identify it. But what people are missing is that all the other documents taken, even if they claim to be executive privilege, either belong to the government because they're government records. Even if they're classified, even if they're subject to executive privilege, they still belong to the government and go to the archives and any other documents that were seized, like news clippings and other things that were in the boxes containing the classified information, those were sizable under the warrant because they show the conditions under which the classified information was being held. So I think it's a red herring. I think at this stage, since they've already gone through the documents, I think it's a waste of time.  

Beth [00:23:46] It's worth watching this clip just to watch the Fox anchors squirm and almost crack up while Barr is talking. Barr goes on to say that he is skeptical of Trump's claim that he declassified everything. And that if he declassified everything, that would be so abusive and reckless that it would almost be worse than taking the documents. Here's my favorite quote that I most agree with.  

Bill Barr [00:24:08] I think the driver on this from the beginning was that it was loads of classified information sitting in Mar-a-Lago. People say this was unprecedented, but it's also unprecedented for a president to take all this classified information and put them in a country club.  

Beth [00:24:22] It seems silly to even add my opinion to the chorus of voices around this order, but I will for a minute. I do think that this is poorly written. It is filled with shoddy legal work where this judge is just making conclusive statements. I mean, judges can do that. That's part of being a judge. But I don't think there is a particularly strong analysis of the record to support this order. And I think there is a seemingly strong bias in favor of Trump here. I wish that every criminal defendant or person who is being investigated for crimes were treated with the kind of presumptions that Trump is getting here. But they definitely aren't, and so it's frustrating to see this for Trump.  

Alise [00:25:13] This next conversation was recorded September 20th.  

Beth [00:25:17] We're going to talk about Donald Trump again. It feels like we just talked about Donald Trump two seconds ago and I'm really working on what's the right balance. But I think this is pretty important. And I want to kind of have those two ideas in the backdrop, because some judges realize my voice ain't good enough for bad lyrics. Like, I really have to have the law right. And some judges take more of a it doesn't matter what I say, as long as I say it with inflection approach to things. And I would love to hear what you think is happening with Judge Cannon. So we're going back to Florida. This is Trump's case against the Department of Justice, where he's asked a judge to exercise the court's equitable powers, do what is necessary in the interest of truth, justice and the American way, to protect me as a property owner. And the district judge who has the case, Judge Aileen Cannon, has been extremely sympathetic to Trump and extremely skeptical of the goernment. And that is the most generous way that I can put it. So Trump and the Department of Justice agreed that retired Judge Raymond Dearie would be a fine special master. We talked about all of that last week. And if you are new here, welcome. You can go back to those episodes, we'll link them for you so you can kind of get caught up. But I'm going to keep us moving forward. So Judge Cannon accepted that recommendation. She appointed retired Judge Raymond Dearie to serve as special master, and she told us what she would like him to do. She would like him to verify that the Department of Justice's inventory of what they took from Mar-a-Lago is accurate and complete. She would like him to conduct a privilege review and make recommendation as to privilege disputes, including executive privilege and attorney-client privilege. It is bananas to me that she is including executive privilege, but we'll talk more about that. She wants him to identify what is personal and what is a presidential record. Again, I think she is seriously intruding on the criminal investigation here because she's asking this special master to decide what are going to be issues of fact in any criminal case that the Department of Justice might bring. Fourth, she would like him to evaluate any of Trump's claims for return of property, things that Trump says I should get this back right now. She says that Judge Dearie can consult with the National Archives and Records Administration. Remember that the Department of Justice wanted that consultation and Trump did not.  

[00:27:38] She is requiring the Department of Justice to give copies of potentially privileged documents to Trump's lawyers, along with anything else not marked as classified. This seems to me to be a gaping hole in her order as to the reality of the situation. If there are potentially privileged documents that are also marked classified, what happens to those and how are they reviewed? And does Trump's lawyers have clearance that they need to look at any of that? I'm confused about some of what she's asking for. She wants this review to be done by November 30th. So, again, a pretty substantial pause on the department's ability to move forward. Now, here is the one moment of delight. Judge Cannon has said that Trump ask for this. He does have to pay 100% of the fees for the special master and anyone he hires to help him. And I wish all those folks good luck in collecting. Okay. Remember that in addition to approving Trump's request for a special master, Judge Cannon also put the brakes on the DOJ's review and use of these documents in the criminal investigation. And the DOJ went back to her to say, okay, can we carve out of that stay these hundred documents that are clearly marked classified, that are very important, where time is of the essence. And we now have her order on that question, which effectively says no. I don't think this order is a big deal and the overall picture of can Trump be held accountable? I think this order is a pretty big deal for lots of other reasons. So let's talk about it. Judge Cannon says that in order to grant the government's motion, she would have to accept two premises that she does not yet accept. The first is that all of those 100 documents are classified records, and Trump couldn't have an interest in them. The second is that Trump has no plausible claim of privilege as to any of these documents. She says these issues are disputed, they require a neutral third party, and she wants the special master to review the documents and decide. And she's pretty forceful in her language here. Like, I've already thought about that in connection with rendering my order appointing the special master. Why are you asking me again? Here is what's bananas to me, and I'm just going to editorialize the whole way through here. I cannot help it today. Usually in court, in order to dispute a fact like this document is marked classified and is therefore classified, you have to say something very specific to create a real question about it. The judge, it seems to me, is allowing Trump to just kind of tweet his way through the process. She's saying there is a question because he questions it, not because he's offered any real reason to question it. Get a load of this sentence. Although the government emphasizes what it perceives to be plaintiff's insufficiently particularized showing on various document specific assertions, it remains the case that Plaintiff has not had a meaningful ability to concretize his position with respect to the seized materials. Given one the ex parte de nature of the approved filter protocol, two, the relatively generalized nature of the government's detailed property inventory, and three plaintiffs unsuccessful efforts pre suite to gather more information from the government about the content of the seized materials.  

[00:30:56] First, that sentence is just an affront to the English language, but let's try to translate it. Sure Trump hasn't raised any specific objections to any specific piece of evidence, but that's because he can't, because he doesn't even know what documents he had been fighting the government about keeping in his possession for the past year. That makes no sense whatsoever. The idea that Trump didn't know what he had and can't know what the government took from him, yet he was fighting to keep it this whole time is nonsensical. Now, the Department of Justice told Judge Cannon that if she did not accept this request, it would appeal to the 11th Circuit. So Judge Cannon decides she'd like to elaborate on her special master order, and here's what her elaboration consists of. She says the only work that stops for the government pending the special master's review is the criminal investigative work. And she gives us her definition of what that means. She says the government cannot present the seized materials to a grand jury and use the content of the documents to conduct witness interviews as part of a criminal investigation. But she says the government is not restricted from conducting investigations or bringing charges based on anything other than the actual content of the seized materials, from questioning witnesses and obtaining other information about the movement and the storage of the seized materials, including the classified documents. As long as they're not discussing their contents, the government is okay to brief congressional leaders on the seized materials and it can review them to conduct security assessments or involve the FBI in any of these matters. And I think it is amazing that she views this as clarifying. This to me reads like an invitation for fight after fight after fight between Trump and the Department of Justice. Remember that a big part of the government's motion is telling the judge that these documents are a big damn deal in terms of national security and that the government will suffer irreparable harm if it can't continue to do what it needs to do. She says, yes, courts are usually reluctant to question the authority of the executive branch in military and national security affairs. But I'm just not persuaded. And so, she says, "I will tell the special master to prioritize these 100 documents and we'll get back to you. This order is extremely defensive. She knows that she is being ripped apart by everyone and their cousin who knows anything about the law, and of course by countless people who don't know anything about the law. And Judge Cannon here is doubling down. And I am so sorry, but I hope the 11th Circuit Court of Appeals absolutely shreds this order in its review. But we'll see. Here's why I think this is a big deal. I think in this context it is undeniable that Trump is being treated differently than any other litigant would be, including other former presidents, if we could even conceive of a hypothetical situation where they'd be in this position. But you would never hear a judge say, "Well, how could President Obama possibly know what we're in boxes in his basement that he fought to keep tooth and nail?" There's just no way. I also think we're getting into national security matters that courts usually do stay out of for separation of powers reasons. I don't know how I feel about that. Often, I think courts are way too deferential to the executive branch. But here, given the posture, this is an equitable action to protect a property owner from search and seizure. I think it is highly inappropriate and an enormous and unethical expansion of the power that Judge Canon has in this matter.  

[00:34:34] And the other thing I want to highlight is that this appears to be a judge who is not good at judging, and she is a federal district judge. She is going to make decisions about whether criminal defendants live or die. She's going to make decisions that impact whether businesses survive or fail, about whether people who've suffered tremendously will be compensated. And short of impeachment, which almost never happens and requires something a lot more egregious than making bad decisions, there is no remedy for appointing a 41-year-old person who's bad at the job to the job for the rest of her life. And I just want us to be thinking about those big picture issues all the time, especially as we're having more conversations about the legitimacy of the Supreme Court. It's not just the Supreme Court, all throughout the federal court system and in state courts too, we have these people-- just people, many of whom do extraordinary work every day at great personal cost, and many of whom are in really cushy jobs forever and are not good at them. And how do we feel about that? And what do we want to do from here?  

Alise [00:35:46] Beth returned to this case with an important update and a recap of what's happened thus far on December 5th. And you'll hear some of that now.  

Beth [00:35:54] This period between Thanksgiving and the end of the year is a lot. I think it needs a name because I think constantly about how we are just in this slide to the end of the year and it's hard. You know how the period between the election and the inauguration of a new president is called the interregnum? I think we ought to call this time between Thanksgiving and the new year, the indulgent regnum. We have indulgent food, indulgent schedules, we need indulgent rest to get through it all. So here we are. It's the indulgent regnum, we're going to do our best to soldier through it together, beginning with this opinion from the 11th Circuit in the matter of Donald J. Trump versus USA. We are before a three judge panel of the 11th Circuit here. Judges Pryor, Grant and Brasher, one appointed by George W Bush, two appointed by Trump. The opinion comes to us per curiam. If you've been around a while, you know that means we don't have a single judge signing it. It ostensibly represents the consensus of the three people who heard it, or at least no one chose to dissent or write separately to concur here. The first paragraph is beautiful in its simplicity. Here it is. "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. Before we get to that answer, we get a little review of how this case came to be. And there are so many Trumpy legal things that even though we've talked about this a lot, I think a quick and colloquial reset on the facts is probably in order. We are going to go through this opinion very carefully because, number one, it is the indulgent regnum and we should be indulgent in our read of things, especially those with the potential for some healthy schadenfreude. And number two, there's a lot here that I think our new friend Jack Smith, the special counsel appointed by Attorney General Merrick Garland, is pretty pleased with. And I would like to hover on that for a second. So former twice impeached, true socialing rather than twittering, dines with white supremacist who endorse Nazi ideas President Trump went to Florida District Court and said, "Hey, I would like you to use your equitable jurisdiction." That is a fancy way of saying help, something very unfair is happening, and I need you to protect me from that unfairness.  

[00:38:26] The unfairness he's referring to is that the United States government first asked him politely and then asked him less politely and then quite sternly asked him and then demanded documents that belong to the country, not to him. Those documents seem to contain very secret information that would make a resort an inappropriate place for them to hang out. And then when he did not give all those documents over to the government, the FBI came to take them. District Judge Aileen Cannon, who drew this case, gave Trump pretty much everything he wanted. She appointed a special master, a magistrate judge, to review the documents for both attorney-client privilege and somehow executive privilege. No one understands how she got there. She stopped the Justice Department in its tracks on portions-- not all, but portions of its criminal investigation. The only thing that she really did that made life hard for Trump is she required him to pay for the special master's review since he did ask for it. And then the special master who Trump picked came in and said, okay, sir, I would now like you to offer some support for your arguments about these documents. And Trump was like, Hmm, I don't think so. And the special master was like, no, I do think so. And so Trump went back to Judge Cannon and said, "Help, I thought I liked the special master, but now I maybe don't so much." And Judge Cannon was, like, special master, stop being so mean to Trump. But the special master continued to insist that we actually argue in court, not just advance what are the equivalence of truth social post. And meanwhile, the Department of Justice goes to the 11th Circuit Court of Appeals and says this is all kind of bananas, don't you think? And the 11th Circuit says essentially, yes, it is all bananas and we are done with it with a D. And you know what we're going to do? We're going to walk it all the way back to the gating issue to get in federal court jurisdiction. And we are going to find that Judge Cannon did not have it. So that's the setup. In law school, when you read an opinion, you're sometimes taught to analyze it using a method called IRAC. That stands for issue, what's the question presented by the case? Rule, what law applies to this question? Analysis, how does the court apply the law to the question? And conclusion, what does that application mean for the parties? So let's do that first because it makes this opinion pretty easy to track. For the issue, the court says it is does Judge Canon have any business doing anything in this case with the federal district court properly exercising its equitable jurisdiction over Trump's claims onto the rule? So our rule is that federal courts are courts of limited jurisdiction. Our whole government is built on the idea that states have the main powers and the federal government and its branches only get the powers spelled out or read into the Constitution.  

[00:41:23] For federal courts, that means that only certain types of cases between certain types of litigants over certain stakes can be heard. And it means that equitable jurisdiction (that fancy term for help me something is unfair) should be the exception, not the rule. And the 11th Circuit tells us that equitable jurisdiction to restrain criminal prosecution is especially exceptional because that is judicial interference with a function that belongs to the executive branch. The executive branch is supposed to enforce the laws. So we have good old separation of powers making an appearance here. But there are rare instances when a court has to get involved to protect people's rights. And in order to know if this is one of those rare times, the 11th Circuit has developed what it calls an exacting four part test around whether it will get involved when property has been seized as part of a criminal matter. You might remember this four part test from when we talked about Judge Cannon's first order in this case. Part one, did the government display a callous disregard for the plaintiff's constitutional rights? Part two, does the plaintiff have an individual interest in and need for the material the plaintiff would like returned? Part three, would the plaintiff be irreparably injured by not getting the property back? And Part four, does the plaintiff have an available remedy to deal with this problem, other than asking the court to get involved through its equitable jurisdiction? So that's our rule. Now we go to the analysis. First, the 11th Circuit tells us how very unimpressed the court is that Trump spent one paragraph on jurisdiction because jurisdiction in federal court is always a BFD, and it is especially so in this case when we're asking the court to do something that it really doesn't do. The theme of Trump's arguments is that almost any subject of a search ought to be able to do what he's doing here. And the court says that's not okay with us. If we follow Trump's logic, equitable jurisdiction would become very ordinary instead of very unusual. So instead, the court says, we are actually going to apply these four factors and factor one is going to get the most weight. Again, factor one is did the government display callous disregard for the plaintiffs rights? If not, what are we doing here? And that is the essential question. What are we doing here? Because no one, not Trump, not Judge Cannon, not the government itself, has even argued that the government displayed a callous disregard for Trump's rights. The court says, honestly, because of that, we're done here. But we will be thorough and go ahead through the other three factors. Factor two, does the plaintiff have an individual interest in a need for the material? Nope. The court says the government already returned Trump's passport and Trump hasn't identified with specificity anything else at all that he needs.  

[00:44:34] You can't say things like they have my passports and there are other things like my passports that I might possibly need at some point for some reason. You have to say exactly what the things are and exactly why you need them so badly. And I have to pause here for the best footnote in a legal opinion I have ever read. I'm going to try to read it with a straight face, but I make no promises. This is footnote three. During discussion of this factor at oral argument, plaintiff's counsel noted that the seized items included golf shirts and "pictures of Celine Dion". The government concedes that plaintiff may have a property interest in his personal effects. While plaintiff may have an interest in these items and others like them, we do not see the need for their immediate return after seizure under a presumptively lawful search warrant. For ever in the historic record, Trump misses his pictures of Celine Dion. It makes me want to burst into the Titanic theme song, but we still have two factors to go. Okay. Will the plaintiff suffer irreparable harm if the property isn't returned? Once again, the court says Trump didn't even try to argue this, and District Judge Cannon tried to build an argument for him and she did a bad job. This factor, from the district court's perspective, boils down to the fact that Trump was the president and presidents are special. But the 11th Circuit, unlike the district court, says, I don't know what you mean. Like, are you saying it's special because these documents are classified? Or are you saying it's special because Trump himself is special as a former president? If you mean that the documents are classified, we're not going to worry about that because we're talking about the government having them and the government does need to review classified documents. And they are unlikely to be improperly released because (friendly reminder and the whole reason we're here) that is a crime. And the fact that there could be sensitive information about Trump as a person is too bad so sad. Every single person who's ever had the FBI seize something from them has probably been really embarrassed about it and has probably had things taken from them that they would have preferred to keep to themselves. But we're not going to write a rule that just applies to former presidents. Last factor Does Trump have a legal way to deal with this other than asking for the District Court to exercise its equitable jurisdiction? The wording here can get confusing. We talk about law and equity in courts. So law means there is something written down somewhere that would allow you to do what you're doing. Equity means you don't really have anything written down anywhere, but you just think in the interest of fairness, the court should act anyway. So this question is, is there a law somewhere else that Trump could use to deal with this if something improper has happened here? And the court says, let us remind everyone as we examine this factor, that the government executed this search from a search warrant that a magistrate authorized. Once more for the plaintiff who seems to not understand this. The government acted according to a court order in taking these documents. If we let plaintiffs come in and say every time the government executed a search warrant, I think they took more than they should have, in a separate action courts would do almost nothing but hear the separate actions.  

[00:48:03] This, I think, is the essential point that the 11th Circuit said the status of these documents is personal or presidential, does not change the fact that the government had authority to seize them under a warrant. If there are categorization issues (these are personal, these are presidential) that will be dealt with in future legal proceedings. But it doesn't change the fact that this was a legal seizure. Then the court tells us what it really thinks. And this is a quote. "All these arguments are a sideshow. The real question that guides our analysis is, this adequate remedy for what? If there has been no constitutional violation, much less a serious one then there is no harm to be remediated in the first place." So there's our analysis. The court walks through those four factors with the presumption that equity should be exercised rarely and the conclusion is that this court refuses to, in its words, radically re-order case law limiting the federal court's involvement in criminal investigations. So the entire proceeding is dismissed. Game over. This case is thrown out. So we could be done there. But let's not be done there. Remember how I promised a fine tooth comb reading? I would like to go back to section one of this opinion where the court rehashes the factual background. This is where I think our new friend Jack Smith might really be feeling it. The 11th Circuit tells us, as Trump's term ended movers took documents from the White House to "a South Florida resort and club known as Mar-a-Lago" and then the National Archives and Records Administration. The court says, consistent with its responsibilities under the Presidential Records Act, sought to obtain missing presidential records from him. So we have an explicit endorsement of the government's actions here. Then we have a statement that essentially the government ask nicely. First, it sought the voluntary return of those records and it got back 15 boxes and found, among other things "a lot of classified records". The DOJ is alerted. There are more conversations with Trump. He says he's making a protective assertion of executive privilege. And the court tells us that the National Archives dismissed that protective assertion and said, in fact, the question in this case is not a close one. Meanwhile, the FBI develops evidence that there are more of these types of records at Mar-a-Lago, and it gets a subpoena. And Trump responds with more documents, including 38 that are classified and 17 marked top secret and a declaration promising that this is it there's nothing else, but the FBI develops more evidence that in fact there is more.  

[00:50:41] So 18 months after Trump is out of office and six months after the National Archives gets the first batch of documents, the DOJ gets a search warrant and goes and finds more classified documents. We knew all of this, but a couple of things stand out to me here. The 11th Circuit could have made a very brief statement of the facts, gotten to jurisdiction and been in and out of this opinion in maybe three pages. Instead, we have here 21 pages of just roasting Trump and his lawyers and Judge Cannon. Also, the court seems to have gone out of its way to say the government has done this correctly. The National Archives and Records Administration did its job. The DOJ proceeded by the book. And finally, the court just accepts as fact that these are classified documents. It could have hedged that. It could have said purportedly classified or documents the government asserts are classified, but it said classified outright and it even included the National Archives statement that it's not a close call about whether this stuff belongs to Trump or the government. So I view this opinion as a big green light to Jack Smith to prosecute this case to the fullest extent of the law. And it came from the 11th Circuit, which is the appellate court for Florida, Alabama and Georgia. It came from a panel of three judges, all appointed by Republicans, two appointed by Trump himself. And that all leads me to my hottest of hot takes on this matter. I think this is all been perfect. I think it's perfect that a Trump appointee behaved badly because sometimes our federal courts have people on the bench who shouldn't be there and who make very bad decisions. And I think it's perfect that Trump got everything he wanted and it still wasn't good enough. And I think it's perfect that Republican appointed judges, including judges appointed by Trump himself, fixed it on appeal. That's the way our system is supposed to work. And if you love Trump and see him as a perpetual victim, look at this case and see where he got more than the law allows. More fairness, more eyes on the issues, much more deference than a normal plaintiff would have. And he is still wrong. And if you're a person who worries, as I frequently do, about the lasting legacy of the Trump administration, particularly in the court system, there is reassurance here by the fact that it got sorted out in the appellate court.  

[00:53:21] That's the system functioning the way it's supposed to, and I find it really encouraging. Did it cost a lot along the way? Yes. Will a bunch of people still believe that he is a perpetual victim? Sure. But some things work. Here is another example of the system being tested by Trump and holding. Not perfectly, but holding. And for all of us, we now have Trump complaining in court on the record about missing his Celine Dion photos. And we have that forever memorialized in a public opinion. And I just don't know what more we could ask for on tais indulgent regnum Monday.  

[00:54:20] Pantsuit Politics is produced by Studio D Podcast Production. Alise Napp is our managing director.  

Sarah [00:54:25] Maggie Patton is our community engagement manager. Dante Lima is the composer and performer of our theme music.  

Beth [00:54:31] Our show is listener-supported. Special thanks to our executive producers.  

Executive Producers (Read their own names) [00:54:37] Martha Bronitsky. Allie Edwards. Janice Elliott. Sarah Greenup. Julie Haller. Helen Handley. Tiffany Hasler. Emily Holliday. Katie Johnson. Katina Zuganelis Kesling. Barry Kaufman. Molly Kohrs. Katherine Vollmer. Laurie LaDow. Lily McClure. Linda Daniel. Emily Neesley. The Pentons. Tawni Peterson. Tracy Puthof. Sarah Ralph. Jeremy Sequoia. Katie Stigers. Karin True. Onica Ulveling. Nick and Alysa Vilelli. Amy Whited. Emily Helen Olson. Lee Chaix McDonough.  

Beth [00:55:12] Jeff Davis. Melinda Johnston. Michelle Wood. Joshua Allen. Morgan McCue. Nicole Berklas. Paula Bremer and Tim Miller.  


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