A Bad Week for Seditionists

87 Comments /

This was a good week for the Department of Justice. It was a bad week for Trump and the seditionists.

1.  Trump’s Special Master Lawsuit Bites the Dust

First, a procedural overview:

  • August 8: The FBI, pursuant to a search warrant, searched Mar-a-Lago and seized boxes of government documents including documents marked classified.
  • August 22: (Two weeks later) Trump brought a lawsuit in a federal district court in Florida asking for a special master to inspect the documents seized from his residence to make sure nothing privileged was given to the DOJ.
  • September 5: Judge Cannon granted Trump’s motion and appointed a special master. She also ordered the FBI to cease using the seized documents as part of its criminal investigation until the special master review was completed.
  • September 8: The DOJ filed a notice of appeal with the 11th Circuit Court of Appeals.
  • September 16: The DOJ filed a motion with the 11th Circuit asking that the 100 documents marked classified be excluded from Cannon’s order while the appeal pended (so that they could continue the investigation into those documents).
  • September 21: The DOJ won on the motion.

Note: This means the criminal investigation into the handling of classified documents was delayed only a few weeks. That said, the DOJ most likely needs all the documents before it can complete the investigation and indict.

  • September 30: The DOJ filed a motion asking that the appellate review be expedited.
  • October 5: The DOJ won on that motion as well.
  • October 11: Trump asked the Supreme Court to intervene on his behalf.
  • October 13: The Supreme Court refused to intervene. 
  • November 22: Oral arguments did not appear to go well for Trump.
  • December 1: The 11th Circuit Court of Appeal issued a decision.

The decision is here. If you want to see how much fun it can be to read an appellate court decision, let’s get started. 🤓I never liked suspense so I skipped ahead and read the ending first:

“The district court improperly exercised equitable jurisdiction in this case. For that reason, we VACATE the September 5 order on appeal and REMAND with instructions for the district court to DISMISS the underlying civil action.”

Because Judge Cannon improperly exercised jurisdiction, she never had the authority to enter any orders at all. (Jurisdiction = power of the court.) Equitable jurisdiction is allowable only in extraordinary circumstances not shown here.

Law v. Equity explainer: The Constitution gives federal courts jurisdiction in law and equity. Law is what’s on the books. Equity is fairness. In the 18th century, there were courts of equity and courts of law. If your neighbor broke a law that cause you injury, you went to a court of law. But there weren’t many local laws, so if something was unfair (like your neighbor was keeping you up all night with loud music) you went to a court of equity. In our system, federal courts are both courts of law and courts of equity.

If federal law enforcement does something really bad and there is no remedy at law, people can go to federal court and ask for an equitable remedy.

Because the court never had jurisdiction, the case will soon go poof. Vaporized. Yes, Trump will have a brief window for appeal, but he’ll lose that, too. (If you have doubts check out the items in red in the timeline.) Plus the Supreme Court already ruled against him when he tried to stop the National Archives from sending presidential records to the Congressional Select Committee by invoking executive privilege, and this case is even weaker. Moreover, an appeal to the Supreme Court will not help him unless he gets an injunction to stop the DOJ investigation as the appeal is pending, otherwise, the investigation will probably be complete before the Supreme Court hears the case.

The court said:

“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.”

The word “lawfully” gives us a clue about where this is going: If the search was lawful, why would Trump need an equitable remedy?

After summarizing Trump’s disputes with the government, the court says:

“These disputes ignore one fundamental question—whether the district court had the power to hear the case. Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.”

The phrase: “not to be expanded by judicial degree” is appellate justice snark.

The court noted that if Judge Cannon could take jurisdiction in a case like this, federal courts would have to allow every person who is the subject of a search to have a special master:

“In considering these arguments, we are faced with a choice:

    1. apply our usual test;
    2. drastically expand the availability of equitable jurisdiction for every subject of a search warrant; or
    3. carve out an unprecedented exception in our law for former presidents.

We choose the first option. So the case must be dismissed.”

Defense lawyers everywhere are saying, “Darn!” Option 2 would have been a boon to defense lawyers everywhere, who would have had one more thing they could do for their clients.

The decision next recounts the facts of the case. This will be fun because when you win on appeal, it means the court basically accepted your version of the facts, which means the “facts” given in this decision is the version put forward by the DOJ, which means Trump will look really bad. (Add that to the list of reasons it was stupid for Trump to bring this case.)

Quick summary of the facts as recounted here: During the year the government tried to get the documents back, Trump never tried to claim executive privilege or assert that he’d declassified documents. He came up with those arguments later (which indicates, of course, that they are lies.) Instead, throughout the year, Trump acted as it was up to him to decide what to do with presidential records, including classified documents, generated during his term in office. He, therefore, played games with the government. He gave back some documents and said he didn’t have anymore. The FBI then “developed evidence” that he had additional documents. Trump gave more back and said he didn’t have any other documents. The government “developed evidence” that he had more. Then Trump had one of his lawyers sign an affidavit saying he had no more documents. The government executed a search warrant, and found a hoard of top-secret classified documents, and here we are.

The court next marched through the four factors that have to be met before a district court can assume equitable jurisdiction in a case like this (The “Richey Test”):

  •  whether the government displayed a “callous disregard” for the plaintiff’s constitutional rights;
  • whether the plaintiff has an individual interest in and need for the material whose return he seeks;
  •  whether the plaintiff would be irreparably injured by denial of the return of the property; and
  •  whether the plaintiff has an adequate remedy at law for the redress of his grievance.

For jurisdiction to be proper, all four requirements must be met. In fact, none were met. The court’s responses in red:

  •  whether the government displayed a “callous disregard” for the plaintiff’s constitutional rights; No: The search was lawful. Even Judge Cannon found that Trump’s rights had not been violated.
  • whether the plaintiff has an individual interest in and need for the material whose return he seeks; Trump can have no interest in top secret government documents. As for personal items mixed in with the government times, the court says this:

Trump argues that the Presidential Records Act gives him a possessory interest in the seized documents. This argument is unresponsive. Even if Plaintiff’s statutory interpretation were correct (a proposition that we neither consider nor endorse), personal interest in or ownership of a seized document is not synonymous with the need for its return. In most search warrants, the government seizes property that unambiguously belongs to the subject of a search. That cannot be enough to support equitable jurisdiction.

(Duh, right? If the FBI gets a warrant to search your home and they seize evidence of a crime, the fact that you have a “possessory” interest in the seized items is irrelevant and doesn’t give you the right to a special master to decide whether the government should have seized the items. The court that issued the warrant already has jurisdiction.)

In Trump’s case, the personal items seized were in the same files as top secret government documents and stored in Trump’s personal office. The personal items have evidentiary value because they show that Trump personally handled the government documents.

  •  whether the plaintiff would be irreparably injured by denial of the return of the property; No showing of this, and 
  •  whether the plaintiff has an adequate remedy at law for the redress of his grievance. The usual remedies available, some post-indictment, others in the court where the search warrant was issued.

The court also takes a swipe at Judge Cannon for ignoring the fact that Trump provided no information to back up his claims:

“The district court was undeterred by this lack of information.”

This is sort of funny and not funny at the same time:

“Plaintiff has adopted two of the district court’s arguments, dedicating a single page of his brief to discussing the first and third theories of harm. On the first argument, Plaintiff echoes the district court. . . “

Trump’s initial arguments fizzled, so Cannon helped him think up more. The fact that Plaintiff adopted the district court’s arguments is judicial snark for “Judge Cannon put her thumb on the scale for the plaintiff.”

To make things worse, here the appellate court has to puzzle out what the district court and plaintiff were even talking about:

“It is not clear whether Plaintiff and the district court mean classified information or information that is sensitive to Plaintiff personally.”

For Judge Cannon, this is like getting an F in law school.

Here is why the court says Trump is not entitled to special treatment:

“Only one possible justification for equitable jurisdiction remains: that Plaintiff is a former President of the United States. It is indeed extraordinary for a warrant to be executed at the home of a former president—but not in a way that affects our legal analysis or otherwise gives the judiciary license to interfere in an ongoing investigation. The Richey test has been in place for nearly fifty years; its limits apply no matter who the government is investigating. To create a special exception here would defy our Nation’s foundational principle that our law applies ‘to all, without regard to numbers, wealth, or rank.’“

That’s the part that’s gonna hurt. Sorry, Trump. You’re not special. The court will not write a special rule for you that allows you to block the DOJ from investigating you.

Fun fact: Throughout all these court filings, Trump referred to himself as “President Trump.” The DOJ referred to him as “Plaintiff.” The appellate court, in its decision, refers to him as “Plaintiff.”

(Last week I complained a bit about social media. By the time I got all this posted on Twitter, I was hit by a wave of cynicism and anger at how horrible the system is and how Trump gets away with everything and why is it taking so long? Basically, commenters were repeating rage-inducing simplifications and Internet Memes. It occurred to me that they are the type of people who ruin parties.)

My new motto: To complain is easy. To throw blame is easier. Understanding requires effort. 

So anyway, you can see why defense lawyers tell their clients to stay quiet: Everything Trump put into these court documents, including the stupid assertions and shifting arguments, can be used against him later. Add that to the list of reasons filing this lawsuit was stupid.

Palm Beach litigation attorney here. Enjoyed the recap and analysis. Maybe the answer to my question is unknowable, but do you have an opinion on WHY Judge Cannon ruled as she did?

My guess is that she is so firmly encapsulated in the right-wing information ecosystem that she thought she was doing the right thing. She thought that because Trump was a former president, an extra layer of oversight was a good thing.

2.  The First Convictions for Seditious Conspiracy in 25 Years (and why it’s a big deal)

This week, Stewart Rhodes, leader of the Oath Keepers, and his sidekick Kelly Meggs were convicted of seditious conspiracy and other serious charges for their role in the January 6 attack.

Remember that initially, just after the attack, people thought Trump instigated the attack by inviting his followers to Washington D.C. with his “be there, will be wild” Tweet, riling them up on January 6 with his “fight like hell” speech on the Ellipse, then sending the crowd to the Capitol just as Congress was set to certify the election. The theory was that the crowd, riled by Trump, got out of hand and stormed the Capitol.

Immediately after the attack, the question debated by legal scholars was whether Trump’s tweet and speech were enough for incitement of violence. It would have been a difficult case to bring because Trump would have had a First Amendment defense, and as always, he threw out enough word salad to give himself deniability.

Later it emerged that many of the armed people who actually led the attack hadn’t attended Trump’s speech, which means his speech did not actually incite the violence (a lot more was going on). Had Trump been indicted on the grounds that his speech incited the violence, he would have shown that the people who led the attack were not even at his speech, and the prosecution would have looked stupid. That’s why smart prosecutors do not rush to indict, which means you can safely ignore the vocal former prosecutors and nonlawyers out there saying that charges against Trump should have already been filed.

Stewart Rhodes never entered the Capitol building. 

If a trespasser is filmed trespassing, it’s fairly easy to convict that person. If another person stood back and watched the trespasser enter restricted grounds, it’s obviously harder to charge and convict that person for crimes that occurred during the trespass. You need solid evidence linking the bystander to the crime. That’s why the DOJ started with the foot soldiers who did the damage and is working its way to the planners like Stewart Rhodes, who were not in the Capitol.

Seditious Conspiracy is a big deal because sedition is the closest we have to treason in a case like this one. 

The Constitution tells us that “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” It is settled law that “War” must be a war declared by Congress. Why? Because the drafters wanted it hard to prove treason. Therefore, the closest we have is seditious conspiracy.

Here are the elements of seditious conspiracy:

    • two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States,
    • conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States,
    • or by force to seize, take, or possess any property of the United States contrary to the authority thereof,

Force is a key element, which is what makes this such a serious crime.

Seditious Conspiracy is difficult to prove

The DOJ has a bad track record in bringing charges of seditious conspiracy against anti-federal government militias, so this conviction was a victory for the DOJ. The DOJ has indicted other defendants for seditious conspiracy, including defendants in a trial set to begin next week. The conviction this week obviously increases the DOJ’s chances of upcoming trials going well for the prosecution.

Taking Down the Dangerous Militia Leaders is a big deal

Among the cynical Internet Memes repeated after this conviction was “Trump hasn’t been indicted so none of this matters.”

Me=🤦‍♀️ If people don’t think that taking down these militias is a big deal, I don’t know what to say.

Consider this: If Trump were president, he’d be inviting these guys to dinner at the White House. 

Some people objected to the term “insurrection” or “coup.” Well, now we can definitely call it sedition.

3: More news on the ongoing investigations

  • The New York court heard closing arguments in the criminal fraud case against the Trump Org. Even though CFO Allen Weisselberg fell on his sword and tried to take all the blame, the jury appeared to be more sympathetic to the prosecution’s arguments that the Organization itself benefitted and encouraged the cheating. I suspect we’ll have a verdict next week.
  • The Supreme Court ruled against Trump in the taxes-to-Congress matter, so Congress gets Trump’s taxes. (This is not a criminal matter, but it is Congress so expect leaks.) The New York DA has long had Trump’s taxes, which is why the Trump Org has been indicted.
  • In a unanimous decision, the South Carolina Supreme Court ordered Trump’s former chief of staff Mark Meadows to testify in the Fulton, Georgia investigation into the conspiracy to overturn the election results in Georgia. The South Carolina Supreme Court found Meadows’ appeal “manifestly without merit.” (Meadows knows a lot and was on the famous call to Raffensperger in which Trump asked Raffensperger to find the votes necessary for him to win in Georgia.
  • Former Trump White House lawyers Pat Cipilloni and Pat Philbin testified before the grand jury this week in the DOJ’s probe into the January 6 attack. (I updated my FAQ page to reflect the latest developments.) I suspect from the chronology and Cipillone’s testimony before the Congressional Select Committee that both lawyers wanted to testify and they wanted cover. Their lawyers were smart to get cover for them (in the form of a judicial order).

* * *

Subscribe here and I'll tell you when my weekly blog post is ready:

Scroll to Top