Mar-a-Lago raid litigation

Mar-a-Lago raid litigation included an emergency application to the U.S. Supreme Court filed by Donald Trump on October 4, 2022 concerning the unprecedented Mar-a-Lago raid on Trump's residence. The application cites 69 precedents in favor of overruling the Eleventh Circuit decision that partially stayed a good district court ruling.

Typically a high-profile application such as this is referred to the full U.S. Supreme Court by the Justice who receives it. Justice Clarence Thomas, who presides over the Eleventh Circuit from where this case originates, ordered the Department of Justice to respond in one week, by 5pm on October 11, 2022.

The liberal media is in panic about this strong application by Trump to the Supreme Court. As a consolation, the liberal Politico wrote:

“

Trump’s emergency application does not appear to ask the high court to revive the part of Cannon’s order that blocked the Justice Department and FBI from using the documents with classification markings in their ongoing criminal investigation.

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But the practical effect of Trump prevailing before the Supreme Court on his application would be immense.

Arguments made

The factual statement by Trump's attorneys in their emergency application to the Supreme Court on Oct. 4, 2022, early in its Factual and Procedural Background section, is a home run:

“

As Justice Jackson long ago recognized, the wheels of justice grind to an ignominious halt when a person—not just the political rival of the sitting administration— is targeted for “being attached to the wrong political views” or “being unpopular with the predominant or governing group.” Morrison v. Olson, 487 U.S. 654, 727 (1988) (Scalia, J., dissenting) (quoting R. Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys, April 1, 1940). Here, the Government has chosen to treat President Trump in a manner apparently quite different from the deference and collegiality afforded to other former Presidents to manage and control their personal and Presidential Records. For instance, as part of a cooperative effort, truckloads of records from the Obama administration were relocated to what had previously been a furniture store in suburban Chicago and President George W. Bush had millions of documents transported from the White House to a warehouse in Texas. See Jennifer Schuessler, The Obama Presidential Library That Isn’t, N.Y. TIMES, (Feb. 20, 2019), https://www.nytimes.com/2019/02/20/arts/obama-presidential-center-librarynational-archives-and-records-administration.html; see e.g., David McMillen, Moving Out, Moving In (last accessed, October 1, 2022), available at https://www.archives.gov/publications/prologue/2016/winter/presidentialtransitions. The National Archives thoughtfully negotiated a Memorandum of Understanding with the Barack Obama Foundation concerning the management and digitization of Obama Administration records several years after his presidency. See, e.g., U.S. National Archives, Memorandum of Understanding Between the Barack Obama Foundation and National Archives and Records Administration Regarding the Digitization of Obama Presidential Records, available at https://www.archives.gov/files/foia/obama-digitization-mou-executed-2-15-19.pdf (last accessed, October 1, 2022). In contrast, almost from the outset here, the Government feigned concern about purported classified records to justify commencement of a criminal investigation (not even contemplated under the Presidential Records Act) and then raided President Trump’s personal residence (a secure compound protected by U.S. Secret Service agents and used during the Trump Presidency to conduct the official business of the United States). This disparate treatment of President Trump is suggestive of a Government that has “pick[ed] the man and then search[ed] the law books . . . to pin some offense on him.” Morrison, 487 U.S. at 727 (Scalia, J., dissenting). But our courts “do not countenance” political judicial theater. See United States v. North, 910 F.2d 843, 865 (D.C. Cir. 1990).

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“

Since President Trump had absolute authority over classification decisions during his Presidency, the current status of any disputed document cannot possibly be determined solely by reference to the markings on that document. (Application p. 35)

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The specific legal arguments are that:

• that the Eleventh Circuit lacked jurisdiction to stay the special master order concerning review of classified documents
• that the district court did not abuse its authority to allow the special master to review the classified documents

Trump's emergency application concludes:

“

The Eleventh Circuit lacked jurisdiction to review the Special Master Order, which authorized the review of all materials seized from President Trump’s residence, including documents bearing classification markings. Moreover, entry of the Special Master Order was not in any event an abuse of discretion. Accordingly, President Trump respectfully requests the Court vacate the Eleventh Circuit’s September 21, 2022, Stay Order as to the authority of the Special Master to review documents bearing classification markings.

”

Precedents cited

A total of 69 decisions are cited in Trump's application, 36 of which are federal appellate decisions and about 33 of which are Supreme Court decisions (2 of which are repeatedly cited) and 8 are 11th Circuit decisions (2 of which are repeatedly cited). The repeatedly cited decisions are discussed further below. A few of the cited precedents are abortion-related decisions:

• Abelesz v. Erste Grp. Bank AG, 695 F.3d 655 (7th Cir. 2012)
• Abney v. United States, 431 U.S. 651 (1977)
• Al Odah v. United States, 559 F.3d 539 (D.C. Cir. 2009) (repeatedly cited)
• Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117 (11th Cir. 2005) (repeatedly cited)
• Ashcroft v. Iqbal, 556 U.S. 662 (2009)
• Baltimore Contractors v. Bodinger, 348 U.S. 176 (1955)
• Bogard v. Wright, 159 F.3d 1060 (7th Cir. 1998)
• Bogosian v. Woloohojian Realty Corp., 923 F.2d 898 (1st Cir. 1991)
• BP P.L.C. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532 (2021)
• Cafeteria Workers v. McElroy, 367 U.S. 886, 890 (1961) (authority of president to classify or declassify documents)
• Carpenter v. Mohawk Indus., Inc., 541 F.3d 1048 (11th Cir. 2008)
• Carson v. Am. Brands, Inc., 450 U.S. 79 (1981)
• Certain Named & Unnamed Non-Citizen Child. & Their Parents v. Texas, 448 U.S. 1327 (1980)
• Clinton v. Jones, 520 U.S. 681 (1997)
• Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)
• Coleman v. Paccar, Inc., 424 U.S. 1301 (1976)
• Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140 (10th Cir. 2011) (repeatedly cited)
• Deckert v. Indep. Shares Corp., 311 U.S. 282 (1940)
• Dep’t of Navy v. Egan, 484 U.S. 518 (1988)
• Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994)
• Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981)
• Gardner v. Westinghouse Broad. Co., 437 U.S. 478 (1978)
• Gary W. v. Louisiana, 601 F.2d 240 (5th Cir. 1979)
• Gonzalez v. Thaler, 565 U.S. 134 (2012)
• Grilli v. Metropolitan Life Insurance Co., 78 F.3d 1533 (11th Cir.1996)
• Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271 (1988)
• Hartman v. Moore, 547 U.S. 250 (2006)
• Hollingsworth v. Perry, 558 U.S. 183 (2010)
• I.A.M. Nat. Pension Fund Benefit Plan A v. Cooper Indus., Inc., 789 F.2d 21 (D.C. Cir. 1986)
• In re Deepwater Horizon, 793 F.3d 479 (5th Cir. 2015)
• Int’l Prod. Corp. v. Koons, 325 F.2d 403 (2d Cir. 1963)
• Jones v. Clinton, 72 F.3d 1354 (8th Cir. 1996)
• Jones v. Fransen, 857 F.3d 843 (11th Cir. 2017)
• Jud. Watch, Inc. v. Nat’l Archives & Recs. Admin., 845 F. Supp. 2d 288 (D.D.C. 2012) (Obama-appointed judge ruled against a claim that "to declare audiotapes created by former President William Jefferson Clinton and historian Taylor Branch during the Clinton administration to be “Presidential records” under the Presidential Records Act (“PRA”), 44 U.S.C. § 2203(f), and to order defendant “to assume custody and control” of them and deposit them in the Clinton Presidential Library.")
• King v. Cessna Aircraft Co., 562 F.3d 1374 (11th Cir. 2009)
• Koehler v. Bank of Bermuda Ltd., 101 F.3d 863 (2d Cir. 1996)
• La Buy v. Howes Leather Co., 352 U.S. 249 (1957)
• Lyons v. PNC Bank, Nat’l Ass’n, 26 F.4th 180 (4th Cir. 2022) (repeatedly cited)
• Macri v. U.S. ex. rel. John H. Maxwell & Co., 353 F.2d 804 (9th Cir. 1965)
• McFarlin v. Conseco Servs., LLC, 381 F.3d 1251 (11th Cir. 2004)
• Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017)
• Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009) (repeatedly cited)
• Moore v. City of Wynnewood, 57 F.3d 924 (10th Cir. 1995)
• Morrison v. Olson, 487 U.S. 654 (1988)
• Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010)
• Nat’l Org. for the Reform of Marijuana Laws v. Mullen, 828 F.2d 536 (9th Cir. 1987)
• Nken v. Holder, 556 U.S. 418 (2009)
• O’Hanlon v. Uber Techs., Inc., 990 F.3d 757 (3d Cir. 2021)
• Pickett v. Texas Tech Univ. Health Scis. Ctr., 37 F.4th 1013 (5th Cir. 2022)
• Police Ass’n of New Orleans ex rel. Cannatella v. New Orleans, 100 F.3d 1159 (5th Cir. 1996)
• Price v. Socialist People’s Libyan Arab Jamahiriya, 389 F.3d 192 (D.C. Cir. 2004)
• Puente Arizona v. Arpaio, 821 F.3d 1098 (9th Cir. 2016)
• Reid v. Doe Run Res. Corp., 701 F.3d 840 (8th Cir. 2012) (repeatedly cited)
• Reynolds v. McInnes, 380 F.3d 1303, fn. 3 (11th Cir. 2004)
• Rux v. Republic of Sudan, 461 F.3d 461 (4th Cir. 2006)
• Shakman v. Clerk of Cook Cnty., 994 F.3d 832 (7th Cir. 2021)
• Smith v. Barry, 502 U.S. 244 (1992)
• Swint v. Chambers Cnty. Comm’n, 514 U.S. 35 (1995) (repeatedly cited)
• Switz. Cheese Ass’n, Inc. v. E. Horne’s Mkt., Inc., 385 U.S. 23 (1966)
• Thompson v. Enomoto, 815 F.2d 1323 (9th Cir. 1987)
• Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986)
• Trump v. United States of America, No. 9:22cv-81294-AMC at ECF No. 64, 2022 WL 4015755 (S.D. Fla. Sept. 5, 2022)
• Trump v. United States, No. 22-13005, 2022 WL 4366684 (11th Cir. Sept. 21, 2022) (repeatedly cited)
• United States v. Nixon, 418 U.S. 683 (1974)
• United States v. North, 910 F.2d 843 (D.C. Cir. 1990) (Courts “do not countenance” politicized prosecutions)
• United States v. Samueli, 582 F.3d 988 (9th Cir. 2009)
• Vt. Agency of Nat. Res. V. U.S. ex rel. Stevens, 529 U.S. 765 (2000)
• W. Airlines, Inc. v. Int’l Bhd. of Teamsters, 480 U.S. 1301
• Whole Woman’s Health v. Jackson, 13 F.4th 434 (5th Cir. 2021)
• Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996)

8 decisions most relied on

The most-relied on decisions are two Supreme Court precedents, two Eleventh Circuit precedents, and one precedent from each of the Fourth, Eighth, Tenth, and D.C. Circuits.

• Al Odah v. United States, 559 F.3d 539 (D.C. Cir. 2009) (distinguished this precedent re: appealability of order granting access by a defendant to documents)
• Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117 (11th Cir. 2005) (affirming a ruling by the Eleventh Circuit that it lacked jurisdiction over an interlocutory appeal of an order concerning attorney-client privilege)
• Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140 (10th Cir. 2011) (Injunction Order is not “inextricably intertwined” with the appointment of the Special Master and thus was not appealable)
• Lyons v. PNC Bank, Nat’l Ass’n, 26 F.4th 180 (4th Cir. 2022) (""Two separate rulings are 'inextricably intertwined' if 'the same specific question will underlie both the appealable and the non-appealable order, such that resolution of the question will necessarily resolve the appeals from both orders at once.'" Scott v. Fam. Dollar Stores, Inc., 733 F.3d 105, 111 (4th Cir. 2013) (quoting Ealy v. Pinkerton Gov. Servs., Inc., 514 F. App'x 299, 309 (4th Cir. 2013) (per curiam)); see also Myers v. Hertz Corp., 624 F.3d 537, 553 (2d Cir. 2010).")
• Mohawk Indus. v. Carpenter, 558 U.S. 100 (2009) (Supreme Court agreeing with Eleventh Circuit in rejecting jurisdiction over an interlocutory appeal)
• Reid v. Doe Run Res. Corp., 701 F.3d 840 (8th Cir. 2012) (pending appellate jurisdiction is available only under exceptional circumstances, and only when a claim is "inextricably intertwined" with an appealable claim)
• Swint v. Chambers Cnty. Comm’n, 514 U.S. 35 (1995) (Supreme Court reversing Eleventh Circuit for ruling beyond its jurisdiction)
• Trump v. United States, No. 22-13005, 2022 WL 4366684 (11th Cir. Sept. 21, 2022) (the ruling being challenged by Trump's application to the Supreme Court)

Statutes cited

• U.S. Const., Art. II, § 2 - establishes the President as the Commander-in-Chief
• 18 U.S.C. § 793(e)
• 28 U.S.C. § 1291
• 28 U.S.C. § 1292 (and subparts)
• 28 U.S.C. § 1292(a) (and subparts)
• 28 U.S.C. § 1292(b)
• 44 U.S.C. § 2201 (and a subpart)
• 44 U.S.C. § 2203(b)
• 44 U.S.C. § 2203(f)(1)
• 44 U.S.C. § 2205(3)
• 50 U.S.C. § 3161
• 50 U.S.C. § 3163