Federal prosecutors on Tuesday, under the direction of newly appointed Special Counsel Jack Smith, argued to the 11th Circuit Court that they should immediately shut down the Special Master process created by Judge Aileen Cannon.
Under that process, former President Donald Trump has the opportunity to challenge the search warrant executed at his office and residence long before he is indicted. Virtually no other criminal defendant has ever been given that opportunity.
The Oral Argument Shows That The 11th Circuit Is Likely To Reverse
Based on the oral argument, it appears that the 11th Circuit is about to bring the curtain down on the sideshow that Judge Cannon created. The three judges on the panel (two appointed by Trump, one appointed by George W. Bush) expressed extreme skepticism that Judge Cannon had the jurisdiction to take any action before indictment and, even if she did, that she had a factual predicate to have enjoined the Justice Department and appointed a Special Master.
Trump's In La-La Land When It Comes to Executive Privilege
Judge Britt Grant (a Trump appointee) pointedly asked Trump's attorneys whether they had appealed Judge Cannon's finding that the DOJ had not demonstrated a "callous disregard" for the former president's rights. Trump's attorney (James Trusty) stated that they had not appealed that finding. Judge Grant basically stated that finding required reversal of Judge Cannon's order.
Judge Andrew Basher (also a Trump appointee) challenged Trump's attorney to answer two unanswerable questions:
1. Was there any precedent for enjoining the DOJ from using the materials seized during the investigatory stage of the case, before any indictments have been handed down?
2. Other than the fact that Donald Trump is the former president, was there any factor that would distinguish this case from the thousands of other individuals who would want the opportunity to challenge a warrant pre-indictment?
Trump's attorney was unable to give any answer that satisfied the judges.
Seeing where the oral argument was headed, Mr. Trusty attempted to salvage the appointment of the Special Master by throwing Judge Cannon's injunction against the DOJ (from using the materials seized from Mar-A-Lago) under the bus.
Trusty argued that the DOJ was not actually harmed by the injunction, because the 11th Circuit had previously issued an order that permitted the DOJ to use the 100 documents that had been originally labeled as "classified" in its investigation.
Then, in language that I have never heard an attorney use in the more than 25 years I have worked as an attorney in criminal law, Mr. Trusty said that the injunction was "overblown" and that what really mattered was preserving the Special Master. The 11th Circuit judges and the DOJ attorneys jumped on that statement, noting that it was unprecedented for the DOJ to be barred by the judiciary from using documents seized by search warrant during their investigation.
What Is Likely To Happen Next?
I rarely make predictions on court rulings. This is the exception.
I would be shocked if the 11th Circuit does not overturn Judge Cannon's order. I also think it will happen quickly. The judges have asked for the upcoming schedule in front of the Special Master.
Special Master Raymond J. Dearie has scheduled his next hearing for Dec. 1, at which time he is expected to hear arguments on the remaining 900 documents that he has not previously addressed. Special Master Dearie is required to issue his report and recommendation to Judge Cannon by December 16. After that, the parties would have the opportunity to object to Judge Cannon and, if necessary, the 11th Circuit. That process would take months to play out.
I cannot imagine the 11th Circuit allowing this circus to continue until Dec. 1, and that's part of why I expect that the 11th Circuit will promptly overrule Judge Cannon, ending the entire process.
If The 11th Circuit Rules Against Trump, What Is Likely To Happen Next?
If the 11th Circuit rules against Trump, I would expect an emergency appeal to the Supreme Court, which would be quickly denied. As soon as that happens, I expect that newly appointed Special Counsel Jack Smith and his team will indict former President Trump on multiple counts.
Where Would The Trial Be Held?
Although Trump has tried to keep this case in the Southern District of Florida (where Republicans recently routed Democrats in statewide elections), I expect that the indictment would be issued from the District Court for the District of Columbia. The crimes related to the removal and retention of national security documents in violation of the Espionage Act were arguably committed when Trump removed them from the White House, making D.C. a possible venue for an indictment on those charges.
The Incredible Mystery of How Trump Got Judge Cannon in the Mar-a-Lago Case
Trump would almost certainly fear a trial in front of a Washington, D.C., jury even more than he would fear a trial in front of a South Florida jury. Trump received only 5 percent of the vote in the District in 2020, by far his lowest total anywhere. By contrast, he won Florida in 2020.
Would The Indictment Cover Anything Beyond The Espionage Act?
General John Kelly-Trump's former chief of staff-publicly stated that the former president demanded that the IRS conduct audits of his perceived enemies, including former FBI Director James Comey and former FBI Deputy Director Andrew McCabe.
If Trump made this demand while he was president, that is an unambiguous felony. Section 7217 of Title 26 of the United States Code makes it a crime for the "President" to "request, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer."
A president who unlawfully seeks to have an individual audited is subject to up to five years in prison. The crime does not require that the IRS actually carry out the audit. The crime is completed with the mere request.
Here, however, there is strong evidence that FPOTUS's illegal demand was actually carried out. As reported earlier this summer, both Comey and McCabe were subjected to highly unusual IRS audits. The odds of an individual randomly being subjected to this type of audit are similar to being struck by lightning. For both to be the subject of special audit by happenstance is about as likely as a whale falling from the sky and landing in the middle of a mountain range.
A Trump Indictment Over Mishandling Classified Documents Is Now a Very Real Possibility
The inspector general of the IRS is already investigating the audits of Comey and McCabe. With General Kelly apparently ready to testify that Trump demanded those audits, this would appear to create additional criminal exposure for the former president.
Based on my training and experience as an Assistant U.S. Attorney who prosecuted tax offenses, I expect that each IRS employee along the chain of command kept detailed notes and records of who ordered them to conduct the audit, and on the facts that were cited to support that audit demand. I would not be surprised if each of those IRS employees cooperated with the DOJ, with all fingers pointing in Trump's direction.
The nice thing about prosecuting tax crimes is that the crimes are very clearly delineated. Few jurors have any sympathy for people who cheat on their taxes or wrongfully sic the IRS on an individual to carry out a personal vendetta.
Things are going badly for former President Trump in federal court. They may be about to go from bad to much worse.
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