I. The Lawsuit
(This section was written Saturday, September 17. For the stuff that happened since yesterday, skip to Section II: The Backfire)
To recap, two weeks after the FBI executed a search on Mar-a-Lago, Trump filed a lawsuit demanding a special master to review the seized documents. He put forward the outlandish claim that he had the right to possess the seized documents—a mindboggling claim given that most of the documents seized by the FBI were government documents, which, by law, must be housed in the National Archives. Moreover, about 100 of them were classified. Some of the documents were so sensitive that some FBI counterintelligence officers needed special clearance to view them
The DOJ filed a motion for a temporary stay pending appeal for those 100 documents. For more, see last week’s post.
Judge Cannon Denied the DOJ’s Request for a Stay
On Thursday, Judge Cannon denied the DOJ’s request. She also appointed Judge Raymond Dearie as special master. (The DOJ approved of the choice; Dearie has a reputation for being a fair and impartial jurist.)
Here are some highlights from Judge Cannon’s order denying the DOJ’s request:
- She ordered the special master to “prioritize” the 100 documents marked classified.
- She emphasized that she is not stopping a national security review of these documents.
- She rejected the idea that documents marked classified could not possibly be covered by executive privilege.
(Executive privilege protects certain communications among members of the executive branch. The theory behind the privilege is that members of the executive branch should be able to speak openly, particularly with the president, as they hammer out ideas and consider options. The privilege can be asserted if Congress or someone outside of the executive branch wants to view the documents. The Presidential Records Act sets out the law for how the privilege is asserted.)
Judge Cannon also “clarified” what the DOJ can and can’t do with the seized documents. (“Clarified” is in quotation marks, because her order remained unclear.) This is what she says the DOJ can’t do:
Use the content of the seized materials for criminal investigative purposes pending resolution of the Special Master’s recommendations. This includes, for example, presenting the seized materials to a grand jury and using the content of the documents to conduct witness interviews as part of a criminal investigation.
Here is what she says they can do (with my commentary in red):
Conduct investigations and bring charges based on anything other than the actual content of the seized materials (which, for example, means they can investigate fingerprints.)
Question witnesses and obtain other information about the movement and storage of seized materials, including documents marked as classified, without discussion of their contents (so it seems they can still investigate based on the fact that the documents are marked classified),
Brief Congressional leaders with intelligence oversight responsibilities on the seized materials
Review the seized materials to conduct the Security Assessments and involve the FBI in the foregoing actions.
Continue to review and use the materials seized for purposes of intelligence classification and national security assessments.
Then she adds this:
To extent that the intelligence review becomes truly and necessarily inseparable from criminal investigative efforts concerning the content of the seized materials, the September 5 Order does not enjoin the Government from proceeding with its Security Assessments. (This essentially gives the DOJ discretion to continue the criminal investigation if it is “truly and necessarily inseparable” from national security and intelligence reviews. The problem is that the DOJ said they are truly and necessarily inseparable. So what exactly is she enjoining? Who the heck knows?)
Here is how Judge Cannon explains her order: Because Trump is a former president, she wants a neutral third party to double-check what the DOJ is doing. She says the special master is just checking to make sure (1) none of the documents are Trump’s personal property, (2) none are covered by attorney-client privilege, and (3) none are covered by executive privilege.
Meanwhile, here’s what Trump is doing: He is trying to create obstacles in the hopes that he can suppress some of the evidence against him. This is what defendants do. Ordinarily, though, the way to do it is after indictment. This is a brand new procedure that Cannon is inventing. (Special masters are usually for attorney’s office and the DOJ is fine with this because they really don’t want to see stuff they shouldn’t see and taint the investigation. What Cannon has done here: Appoint a special master to generally check the work of the prosecutors would be every defendant’s dream at this stage.)
These questions came to me on social media
An FBI/DOJ expert on Twitter said that this ruling sets up the ability for Trump to use fruit of the poisonous tree. Does it?”
A district court ruling is not a binding precedent on any other courts. Yes, lots of criminal defendants will start asking for special masters, and they will be told no. This will not destroy criminal justice in America.
If the DOJ does indict him, they won’t do it in front of Cannon, would they?
I assume the DOJ will frame the charges so that they can be brought in D.C. The actual theft happened there, after all.
“But why did she rule this way?”
There are a lot of theories out there (she’s compromised, she’s been bought, etc.) If you read her opinion, she seems to think she’s being reasonable. She says it’s a limited ruling, she’s expediting the 100 documents, everything will be done in a few months, and all of this is just for transparency and “public trust.”
Hanlon’s razor is an adage or rule of thumb that states basically says if you are not sure whether a person is evil or incompetent, the person is most likely incompetent. Until there is solid evidence to the contrary, I’ll assume that she is incompetent, not very smart, and not qualified for the job. She also obviously likes Trump, but judges are human beings with biases. The better ones manage to make good decisions despite their biases.
The DOJ Files a Motion in the 11th Circuit for a Partial Stay Pending Appeal
No surprise, the day after she rejected the DOJ’s motion for a partial stay, the DOJ filed a similar motion in the 11th Circuit (Court of Appeals). It’s a good idea to first file the motion in the district court, and then, when that gets rejected, go up to the appellate court.
The motion (which you can read here) was written for public consumption. It’s clear and lays out facts that are devastating to Trump.
It opens with a bang:
The district court has entered an unprecedented order enjoining the Executive Branch’s use of its own highly classified records in a criminal investigation with direct implications for national security.
The DOJ disagrees with the entire order, but they are seeking to stay, “only the portions of the order causing the most serious and immediate harm to the government and the public. . . ” They’re (wisely) limiting what they are asking for.
The DOJ points out the absurdity of Cannon’s order as applies to classified documents.
- The special master was supposed to consider claims for the return of personal property, but it’s impossible for government documents marked classified to be Trump’s personal property.
- The special master is also to consider attorney-client privilege, but classified documents cannot have any claims of attorney-client privilege.
- Finally, the special master is supposed to evaluate claims of executive privilege, but sensitive government secrets cannot be protected by executive privilege, and neither Trump nor the court explained how Trump can assert executive privilege against the executive branch. (They didn’t explain it because it makes no sense. Executive privilege is a separation of powers thing.)
- Her order forces the executive branch to show highly sensitive government secrets to Trump’s lawyers.
The DOJ also complains about Cannon’s lack of clarity in what they can and can’t do with the 100 docs. Because what they can’t do isn’t clear, they run the risk of being in contempt if the court later says they overstepped.
One of the most devastating parts of the DOJ’s motion is the part that sets out the history of the case since Trump left office. The pattern went like this:
- Trump said he had no government documents
- The DOJ developed evidence that he had documents
- Trump relented and handed over a bunch of documents and said he didn’t have any more
- The DOJ developed evidence that he still had documents
- Trump handed more over and said that was it, he didn’t have any others.
- After Trump’s lawyer signed an affidavit swearing that Trump had no more documents, the FBI developed evidence that he had more documents, searched, and found 11,000 government documents including 100 marked classified.
(Each time I read these facts, I wonder who kept ratting Trump out. It must drive the paranoid Trump completely crazy.)
Here’s what’s particularly devastating: During the extended process in which the government tried to get the documents back, Trump never tried to assert privilege. He never said, “I have them, but I have the right to possess them.” He said, “I have no government documents and I have no documents marked classified.” (He obviously didn’t expect them to come in and search.)
After the search in August turned up classified documents, he changed his story to “I had the right to possess them under the Presidential Records Act” and “they may be privileged.”
Gaming out best and worst-case scenarios
Best case scenarios:
- The 11th Circuit grants the temporary stay and Judge Dearie is so efficient (and refuses to expose the highly sensitive documents to Trump’s lawyer) that the entire matter is concluded and the remainder of the documents are back with the DOJ within a month or two.
- The 11th Circuit does not grant the temporary stay, but Judge Dearie keeps the top secret documents under wraps and manages to get the crucial documents back to the DOJ within a reasonable time.
Bad case scenario:
- The 11th Circuit does not grant the temporary stay, Judge Cannon starts rejecting Dearie’s reasonable orders, and everything gets tied up on appeal for many months.
Worst case scenario:
- Trump successfully claims privilege over some of the classified documents and the DOJ is unable to use these documents in its criminal investigation against Trump. (Notice charges can still be brought against Trump because there’s plenty of other evidence of violations of the Espionage Act and obstruction statutes.)
Even if Cannon is completely off her rocker, I can’t see the higher courts and the Supreme Court going along with this. After all, the judges appointed by Trump refused to hand him the election by going along with his bogus election claims. While he was president, they denied his claim that he had absolute immunity. Last year, when he tried to assert executive privilege over nonclassified documents to keep them out of the hands of Congress, he lost in the courts.
I just can’t see higher courts saying, “Sure, Trump can make off with top secret US documents and then keep them from the FBI by claiming privilege.” For a sense of how dangerous this would be, consider how likely it is that he is still stashing documents somewhere else. The courts are not going to give him the green light to do with these documents whatever he wants in clear violation of the law.
Then, of course, someone responded with the “50-year myth”:
The 50-year myth goes like this: All was well until, about 50 years ago when the Republican Party jumped the rails and started breaking laws, and here we are today, on the verge of losing our democracy.
People. We didn’t even begin moving toward a true multi-racial democracy until about 50 years ago. Before the 1960s, all of our institutions (governor’s mansions, universities, Congress, industries) were largely run by white men—with a few rare and notable exceptions.
Approximately 50 years ago, things started changing.
- 1954, Brown v. Board of Education declared racial segregation unconstitutional.
- 1964, the Civil Rights was passed.
- 1965, the Voting Rights Act was passed.
- In the 1960s we still had judges who were openly in favor of racial segregation.
What’s happening right now is that we’re riding the backlash from the modern Civil Rights and women’s rights movement. As Daniel Ziblatt and Steven Levitsky say in How Democracies Die, ethnic majorities rarely give up their power without a struggle.
To be fair, most of the doomsaying and panic-mongering comes from not understanding what is happening (and some of those “legal experts” on TV do not help matters), and perhaps not fully understanding our history.
So what do we do?
We look to the heroes of the past, the ones who (with great effort and against huge resistance) managed to push us toward a true liberal democracy. They can teach us the way. I’m talking about Susan B. Anthony, Thurgood Marshall, Pauli Murray, Martin Luther King, Jr. and so many others who dedicated their lives to pushing the needle toward fairness and equality.
We don’t cry like babies each time there is a setback. We get to work. Need ideas? Here’s my to-do list. (Okay, I got that off my chest.)
In my FAQs, I warned you all. This is the answer to question #8 in the current version:
Disillusioned with Democracy
Last year, I was reading this piece about Curtis Yarvin, an influential right-winger who, like libertarian Peter Thiel, is disillusioned by democracy. He wants an autocrat to dismantle most of the federal government. He says the trick is to get liberals and leftists similarly disillusioned with democracy and democratic institutions.
What I see in my comments and the questions I get is widespread disillusionment and despair. See why it worries me?
Part of the problem is that Cable news has many hours to fill, and strong emotions like rage, despair, and euphoria generate engagement. Social media algorithms similarly prioritize content that generates strong emotions. Nobody needs a 24-hour news cycle. As a result of two years of rage and fear-generating content, people believe that the outcome of American democracy hinges on the outcome of these trials.
In fact, whether democracy lives or dies in the United States hangs on the outcome of the next few elections.
If people are spinning with rage or sinking into despair, how will they have the necessary energy to do the real work of saving democracy?
The Appellate Court (11th Circuit) notes that Judge Cannon is not following the normal procedures, but instead, is carving out special procedures. For example, Trump said, “This isn’t a rule 41 return of property motion but I want the special master to return my property” and Cannon did some twists to accommodate this, for example, by calling his motion a “hybrid motion.” (Hybrid motions are not a thing.)
The appellate court noted that Cannon’s ruling appointing a special master rested on flimsy grounds, for example, she justified her ruling by stating that “a special master might be perceived to be more impartial than the Privilege Review Team.”
Here is how they criticize her failure to explain why Trump needs a special master to review the classified documents:
“And the district court made no mention in its analysis of this factor as to why or how Plaintiff might have an individual interest in or need for the classified documents.”
Next comes some real judicial snark. The 11th Circuit said district courts assume equitable jurisdiction only in extreme cases, as when a government showed “calloused disregard” for a defendant’s rights. Since Cannon conceded that didn’t happen, the analysis can stop right there — but the court went on for another 11 pages listing all the other ways that Cannon was wrong. For example:
For our part, we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings.
When you present an argument to the appellate court, everything should be discernable. Here they adopt the DOJ’s language about the whole classification thing being a red herring:
In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal. So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.
In explaining that Trump would suffer no harm should the criminal investigation proceed, the court said:
No doubt the threat of prosecution can weigh heavily on the mind of someone under investigation. But without diminishing the seriousness of that burden, “if the mere threat of prosecution were allowed to constitute irreparable harm . . . every potential defendant could point to the same harm and invoke the equitable powers of the district court.”
That would give most people in Trump’s situation a few sleepness nights.
Judge Cannon has been put on notice
Now Judge Cannon knows that if she deviates again from procedures in an attempt to show special favor to Trump, the 11th Circuit will reverse her decision and offer a public reprimand.
Judge Cannon amended her order basically making it impossible from Trump to appeal to the Supreme Court
Thursday morning, Judge Cannon amended her initial order (the one that appointed a special master) entirely removing the classified documents from her order. This basically killed Trump’s ability to appeal the 11th Circuit’s decision to the Supreme Court because there was no longer an underlying order. So even if Trump got the Supreme Court to overturn the 11th Circuit decision (which wouldn’t happen) Trump still wouldn’t have any relief.
Trump would have to appeal Judge Cannon’s amendment, and it’s clear that the 11th Circuit would reject the appeal, and Trump wouldn’t get a temporary stay, so the appeal would do him no good.
Why did she amend her order?
My guess is that she didn’t like being overturned on appeal (a very public humiliation, given that this is such a high-profile case) and it was clear from the way the 11th Circuit framed the issues that the Supreme Court would not touch this one.
Judge Dearie’s Case Management Plan
Also on Thursday, Judge Dearie released his case management plan for the 11,000 not marked classified. It’s here and it’s totally fun to read because Dearie is not having any of Trump’s nonsense.
First, he offers Plaintiff a “final opportunity” to raise any factual disputes as to the accuracy of the DOJ’s Detailed Property Inventory”, but he must do so in the form of a declaration or affidavit. In other words, Trump has to swear under penalty of perjury that there is an inaccuracy in the DOJ’s detailed property inventory.
It’s a put-up or shut-up order. Recall that most of the justification here is that the DOJ and FBI can’t be trusted. Dearie says, “Okay, put specific inaccuracies in writing and sign under penalty of perjury.”
Dearie says that any disputes will be resolved in an evidentiary hearing (meaning he will follow real procedures).
The two parties, the DOJ and Trump, have until tomorrow to agree on a vendor and enter a contract for document handling. (So much for trying to use this for delays). Then he lays out the procedure for Trump to challenge documents for any of these (my comments in red):
- attorney work privilege
- executive privilege that prohibits dissemination of the document within the executive branch (they won’t be able to do this so the DOJ will get everything).
- executive privilege that prohibits dissemination of the document within the outside the branch (Biden will be able to override this, so it’s just a meaningless exercise)
- the document is a presidential record within the PRA (meaning it goes to the National Archives)
- the document is a personal record within the PRA
But this is on a document-by-document basis (on a rolling basis) and Plaintiff has to include “a brief statement explaining the basis for the designation.”
After Trump asserts any of the above, first the parties met and confer to work out any differences. Within 7 days, any disputes that can’t be resolved get submitted to Dearie.
If Trump and the DOJ have a dispute over whether the property is personal, Trump has to explain why he can’t submit a normal rule 41 motion to the magistrate that approved the search warrant (which is what is supposed to happen.) So what’s very likely is Trump says, “This is my personal property but the DOJ says they need to keep it,” and Dearie says, “Go submit a 41 motion to the magistrate judge who issued the warrant because he’s in a better position to evaluate whether the documents fall under the purview of the warrant.”
The plan also contains an explanation of the expenses that will show up on Trump’s invoice. (Trump wanted to split costs with the DOJ. The DOJ said that Trump should pay because he wants this. Cannon said Trump pays, so he has to pay the entire bill.)
Dearie needs to make a few hires, including a former judge at $500 per hour, and staff members. He may also need to hire expert consultants. Any disputes that Trump can’t resolve with the DOJ will cost him extra money because he has to pay the consultants. So he has a huge financial incentive not to dispute anything.
Finally, Dearie reminds Trump that failure to pay would subject him to court sanctions.
I suspect Trump was primarily worried about the documents marked classified. Those are the documents for which he has the most criminal liability. That’s why he’s making all that fuss about “classified.” But the classified documents have been entirely removed from the special master’s review. The DOJ can continue its criminal investigation with those.
So now Trump must pay for a special master to look through everything else while the DOJ continues a criminal investigation of the docs that matter.
Trump’s lawyers tried to slow down the process. In this case plan, Dearie sped up the process. It looks like everything will be wrapped up in October.
Another reason this all makes Trump’s venture a waste of time and his money. I think Trump had another aim in bringing this lawsuit: To discredit the DOJ and FBI, but Dearie isn’t going to help him do that, and after that appellate thrashing, Cannon is highly unlikely to overrule Dearie.
Yet another reason: Trump is soon to be a defendant in a criminal case and all the stuff he has been saying can (and will) be used against him. This is why defense lawyers tell their clients to shut up.
Finally, the 11th Circuit case taking Cannon’s ruling apart was cited by a federal court in Minnesota when denying relief to Mike Lindell (the pillow guy) who had his phone seized by the FBI as part of the investigation into the events of January 6. Lindell sued to get his phone back. The court told him no, and included this quotation from the 11th circuit ruling: “It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions.”
So the 11th Circuit’s reasoning for denying Trump’s silly special master lawsuit was used by another federal court to deny relief to Trump’s buddy and co-conspirator, Mike Lindell.
ADDING (one week later):
Trump refused to submit a declaration saying that he actually declassified documents
The Appellate Court (11th Circuit) notes that Judge Cannon is not following the normal procedures, but instead, is carving out special procedures. For example, Trump said, “This isn’t a rule 41 return of property motion but I want the special master to return my property” and Cannon did some twists to accommodate this, for example, by calling his motion a “hybrid motion.” (Hybrid motions are not a thing.)
The appellate court noted that Cannon’s ruling appointing a special master rested on flimsy grounds, for example, she justified her ruling by stating that “a special master might be perceived to be more impartial than the Privilege Review Team.”
Here is how they criticize her failure to explain why Trump needs a special master to review the classified documents:
“And the district court made no mention in its analysis of this factor as to why or how Plaintiff might have an individual interest in or need for the classified documents.”
Next comes some real judicial snark. The 11th Circuit said district courts assume equitable jurisdiction only in extreme cases, as when a government showed “callous disregard” for a defendant’s rights. Since Cannon conceded that didn’t happen, the analysis can stop right there — but the court went on for another 11 pages listing all the other ways that Cannon was wrong. For example:
“For our part, we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings.”
When you present an argument to the appellate court, everything should be discernable. Here they adopt the DOJ’s language about the whole classification thing being a red herring:
In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal. So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.
In explaining that Trump would suffer no harm should the criminal investigation proceed, the court said:
“No doubt the threat of prosecution can weigh heavily on the mind of someone under investigation. But without diminishing the seriousness of that burden, “if the mere threat of prosecution were allowed to constitute irreparable harm . . . every potential defendant could point to the same harm and invoke the equitable powers of the district court.”
That would give most people in Trump’s situation a few sleepness nights.
Judge Cannon has been put on notice
Now Judge Cannon knows that if she deviates again from procedures in an attempt to show special favor to Trump, the 11th Circuit will reverse her decision and offer a public reprimand.
Judge Cannon amended her order basically making it impossible from Trump to appeal to the Supreme Court
Thursday morning, Judge Cannon amended her initial order (the one that appointed a special master) entirely removing the classified documents from her order. This basically killed Trump’s ability to appeal the 11th Circuit’s decision to the Supreme Court because there was no longer an underlying order. So even if Trump got the Supreme Court to overturn the 11th Circuit decision (which wouldn’t happen) Trump still wouldn’t have any relief.
Trump would have to appeal Judge Cannon’s amendment, and it’s clear that the 11th Circuit would reject the appeal, and Trump wouldn’t get a temporary stay, so the appeal would do him no good.
Why did she amend her order?
My guess is that she didn’t like being overturned on appeal (a very public humiliation, given that this is such a high-profile case) and it was clear from the way the 11th Circuit framed the issues that the Supreme Court would not touch this one.
Judge Dearie’s Case Management Plan
Also on Thursday, Judge Dearie released his case management plan for the 11,000 documents not marked classified. It’s here and it’s totally fun to read because Dearie is not having any of Trump’s nonsense.
First, he offers Plaintiff a “final opportunity” to raise any factual disputes as to the accuracy of the DOJ’s “Detailed Property Inventory”, but he must do so in the form of a declaration or affidavit. In other words, Trump has to swear under penalty of perjury that there is an inaccuracy in the DOJ’s detailed property inventory.
It’s a put-up or shut-up order. Recall that most of the justification here is that the DOJ and FBI can’t be trusted. Dearie says, “Okay, put specific inaccuracies in writing and sign under penalty of perjury.”
Dearie says that any disputes will be resolved in an evidentiary hearing (meaning he will follow real procedures).
The two parties, the DOJ and Trump, were given a single day to agree on a vendor and enter a contract for document handling. (So much for trying to use this for delays). Then he lays out the procedure for Trump to challenge documents for any of these (my comments in red):
- attorney work privilege
- executive privilege that prohibits dissemination of the document within the executive branch (they won’t be able to do this so the DOJ will get everything)
- the document is a presidential record within the PRA (meaning it goes to the National Archives)
- the document is a personal record within the PRA
But this is on a document-by-document basis (on a rolling basis) and Plaintiff has to include “a brief statement explaining the basis for the designation.”
After Trump asserts any of the above, first the parties “meet and confer” to work out any differences. Within 7 days, any disputes that can’t be resolved get submitted to Dearie.
If Trump and the DOJ have a dispute over whether the property is personal, Trump has to explain why he can’t submit a normal rule 41 motion to the magistrate that approved the search warrant (which is what is supposed to happen.) So what’s very likely is Trump says, “This is my personal property but the DOJ says they need to keep it,” and Dearie says, “Go submit a 41 motion to the magistrate judge who issued the warrant because he’s in a better position to evaluate whether the documents fall under the purview of the warrant.”
The plan also contains an explanation of the expenses that will show up on Trump’s invoice. (Trump wanted to split costs with the DOJ. The DOJ said that Trump should pay because he wants this. Cannon said Trump pays, so he has to pay the entire bill.)
Dearie needs to make a few hires, including a former judge at $500 per hour, and staff members. He may also need to hire expert consultants. Any disputes that Trump can’t resolve with the DOJ will cost him extra money because he has to pay the consultants. So he has a huge financial incentive not to dispute anything.
Finally, Dearie reminds Trump that failure to pay would subject him to court sanctions.
I suspect Trump was primarily worried about the documents marked classified. Those are the documents for which he has the most criminal liability. That’s why he’s making all that fuss about “classified.” But the classified documents have been entirely removed from the special master’s review. The DOJ can continue its criminal investigation with those.
So now Trump must pay for a special master to look through everything else while the DOJ continues a criminal investigation of the docs that matter.
Trump’s lawyers tried to slow down the process. In this case plan, Dearie sped up the process. It looks like everything will be wrapped up in October.
Another reason this all makes Trump’s venture a waste of time and his money. I think Trump had another aim in bringing this lawsuit: To discredit the DOJ and FBI, but Dearie isn’t going to help him do that, and after that appellate thrashing, Cannon is highly unlikely to overrule Dearie.
Yet another reason: Trump is soon to be a defendant in a criminal case and all the stuff he has been saying can (and will) be used against him. This is why defense lawyers tell their clients to shut up.
Finally, the 11th Circuit case taking Cannon’s ruling apart was cited by a federal court in Minnesota when denying relief to Mike Lindell (the pillow guy) who had his phone seized by the FBI as part of the investigation into the events of January 6. Lindell sued to get his phone back. The court told him no, and included this quotation from the 11th circuit ruling: “It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions.”
So the 11th Circuit’s reasoning for denying Trump’s silly special master lawsuit was used by another federal court to deny relief to Trump’s buddy and co-conspirator, Mike Lindell.
A follower on Twitter asked:
Don’t know how case law happens but is Trump. vs. US (Trump’s special master lawsuit) establishing new case law?
Given how the 11th circuit ruled, it is establishing a precedent that hurts people in Trump’s position and helps the DOJ. District court rulings are never governing precedent for other courts. Those are the lowest courts. Other district courts can look to see what they did in an advisory capacity, but only appellate rulings create precedent. This is because lower courts are obliged to follow the rulings of higher courts. So the 11th Circuit (an appellate court) ruling now governs all courts below it. Because the Supreme Court is the highest court, when it creates a rule all federal courts must follow it, and when it rules on the Constitution, all courts must follow it.
