Trump Replies in Special Master Case

Steven D. Schwinn, University of Illinois Chicago School of Law

Former President Trump filed his brief in the Eleventh Circuit case testing whether a district judge had authority to appoint a special master to review documents seized at Mar-A-Lago. Trump's arguments are familiar, largely already rejected, and unpersuasive.

A short history might help contextualize this:

Two weeks after the FBI seized documents that Trump illegally removed from the White House, transported to his private residence, and illegally stored there, Trump sued, seeking (extraordinary) "judicial oversight" of the government's review of the documents. A district judge appointed a special master to conduct that review. The government filed a notice of appeal and moved the district court for a partial stay of its order as it applied to documents bearing classified markings. The district court rejected the motion, but the Eleventh Circuit reversed. The Eleventh Circuit held that the government was likely to prevail, because everyone agreed that the search did not display a callous disregard for Trump's constitutional rights--"the foremost consideration" in determining whether the district court properly exercised jurisdiction in appointing the special master in the first place. The Supreme Court declined to vacate that ruling.

The Eleventh Circuit ruling went to the government's motion for a partial stay as the district court's order applied to classified documents. But the court's reasoning--that last part, that everyone agreed that the search (of all the documents, not just the classified documents) didn't display a callous disregard for Trump's constitutional rights--gave the government an opening to argue that the district court's original appointment of a special master was completely invalid. The government then argued (1) that the court lacked authority to appoint the special master at all, and (2) that the court lacked authority to stop the government from reviewing the documents pending the outcome of the special master review.

Trump's brief responds to the government's arguments. On the merits of the district court's appointment of the special master, Trump argues that the government's lack of callous disregard of his rights is not determinative, and that other equitable factors weigh in favor of the court's authority. As to the district court's order halting government review pending special master review, Trump argues that he's likely to succeed on the merits, because some of the documents are his, some are protected by privilege, and he automatically declassified any documents marked "classified" simply by treating them as unclassified documents. (He says that as president he had authority to declassify, and therefore he could declassify simply by thinking it).

Trump's arguments mostly rehash his claims that the courts have already flatly rejected. (Maybe that's why the court set oral argument for next Tuesday: easy case, easy ruling.) The brief--and Trump's entire case, from his original complaint--is simply an effort to drag out and frustrate the FBI's investigation, and even run the clock.