Thread by @AkivaMCohen

Hey, #LitigationDisasterTourists ...

So, I've been a bit busy this week and this weekend. But as you all probably know, on Thurs the 11th Circuit issued its ruling overturning Judge Canon's insane order appointing a special master to review materials seized at Mar-a-Lago

Let's start with the panel who issued the ruling and how they did it.

If Trump could have drawn up his dream panel, this is probably what he'd have picked: 2 judges he himself appointed, plus Pryor, an arch-conservative who's called abortion docs as "abortionists" in opinions

That "Per Curium"? It basically means "all of us, equally and together"

Many times, it can be the sign of a panel that doesn't want to have a particular judge's name associated with a controversial opinion. Here, it reads way more as "we're in lockstep because this is obvious"

And yeah, oh boy is it ever obvious.

Let's run through the opinion

They get right to the point: before you can get to Trump's ludicrous substantive arguments, you have to deal with the fact that he has no right to raise them before Cannon at all.

And since he has no right to do that, the whole thing gets tossed with a vengeance

I'm going to skip the factual recap

Start with first principles: Federal courts are courts of limited jurisdiction - they can only hear some specific cases, not all - so if you want to get through the door of the courthouse it's on YOU to prove your case is one they're allowed to hear

This may surprise some people, since Federal courts are wildly powerful

But as we all know, vast cosmic power comes with

Here, Trump was asking the Court to invoke "equitable jurisdiction" - basically "no, the normal rules don't allow me to bring this case to you, but it would be so fundamentally unfair for me not to be able to that you should let me do it"

That's ... not an easy ask

It's worth taking a look at the facts in Richey v. Smith, which is the case that set out the immensely hard-to-satisfy test for exercising equitable jurisdiction, to see what types of facts justify it.

1) Records are taken for use in a criminal investigation without a warrant and without Miranda warnings

2) The gov't refuses to return it

Based on that, the appellate court sends it back to the district court to consider whether fundamental fairness requires the parties to be returned to their starting positions

Here, of course, the government had a warrant to seize the records, which makes this case dramatically different from Richey.

As the court is, um ... gonna point out

Basically, unlike Judge Cannon, the 11th Circuit recognizes that if Trump's view of "when this rule can be invoked" prevails, *everyone* who had property seized by warrant would be able to bring these motions. And that's not what this type of jurisdiction is for.

Of course, the subtext of Trump's motion was "don't worry about that - I'm a special person, I get special rules that mere ordinary Americans wouldn't get access to"

And Cannon took that subtext and made it text: "this rule is just for ex-Presidents"

But that's not what law is

The whole point of the Rule of Law is it applies equally to *everyone*. No special rules for special people.

And yeah, sometimes that's a principle more breached than honored. And sometimes it's a "the law in its majesty equally bars rich and poor from sleeping on the streets"

But ... it's what the law is *supposed to be*. And this panel, unlike Cannon, is going to hold that line.

They start with the first gate: "callous disregard for constitutional rights"

If you want the court to take the case on fairness grounds, it can't be run-of-the-mill; you need an egregious violation of your rights.

Courts don't supervise investigations-in-progress

Here, nobody argued there was callous disregard. So the case was doomed from the start.

And as the court points out, even callous disregard isn't enough - because though that's bad, you still need more than that to get the court to intervene in an investigation-in-progress

Gotta pause here for a bit. This'll be a stop-and-start thread today. Sorry

OK, factor number 2:

If you want to ask the court to jump in because the seizure is so fundamentally and deeply unfair, you need to show that you actually have an interest in (ownership or a right to possess) and need for what was taken.

Trump didn't bother

Now this is a slap at Judge Cannon. Correctly calling her "undeterred by" the fact that Trump didn't meet the standard is going out of its way to say not only that she got it wrong, but that no reasonable judge would have ruled that way: The problem was obvious, she didn't care

You can't just say "they took my stuff"

No kidding, my guy. That's what happens when you get served with a search warrant. You need to identify *specific* stuff that it is *critical* you get back right away. *WHY* do you need those Celine Dion pictures back right the hell now?

No, seriously, what was he planning to do with those pictures?

Anyway, so ends Trump's case on the second factor; if you can't show you need the documents back, you lose - even if you can't understand why the government needs to keep them

Factor 3: will you be irreparably harmed if the government keeps the documents?

Again, the panel takes the time to point out that Trump basically biffed this part entirely in his brief to Judge Cannon - who stepped in with entirely new and different reasoning to rule for him anyway.

And then methodically details why those new reasons are, in technical terms, dumb as fuck.

This applies to EVERY warrant ever. They are *ordinary*. And ordinary issues can't support extraordinary relief

Last Richey factor: Is there any other way to address the supposed issues?

Again, the panel takes eminently well-deserved swipes at Judge Cannon: "look, I'd really like the government not to be able to use the stuff they seized as they try to prove the crime they think I committed" is not a fucking reason to grant relief

Shorter 11th Circuit "This is what a search warrant means, dumbass*"

*Dumbass here applies to both the party and the court below

But also ... you can't win on this factor when there was no violation of your rights in the first place.

"remedy for what?"

(Those italics are some serious judicial shade, btw)

Having crushed Trump at every turn, the panel sums up:

Applying the rules Trump wants would be lunacy; it would require courts to supervise every criminal investigation.

Or, you know, torch the Rule of Law.

And they - unlike Judge Cannon - are not going to do that. Trump loses, and Cannon is specifically ordered to dismiss his entire case

Anyway, like I said when the original order first came out:

https://twitter.com/AkivaMCohen/status/1566984224485294081