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Federal prosecutors, led by newly appointed Special Counsel Jack Smith, argued Tuesday in the 11th Circuit Court that they should immediately drop the Special Masters case created by Judge Aileen Cannon.
Under this process, former President Donald Trump has the opportunity to challenge the search warrant issued at his office and residence long before he is charged. Virtually no other criminal defendant has ever been given this opportunity.
The verbal argument shows that the 11th circuit is likely to reverse
Based on the hearing, it appears the 11th Circuit is about to close the curtain on the sideshow created by Judge Cannon. The panel's three judges (two appointed by Trump, one appointed by George W. Bush) expressed extreme skepticism that Judge Cannon had the authority to take pre-arraignment action and, even if she did, that she had no substantive predicate had to have ordered the Justice Department and appointed a special master.
Trump is in la-la-land when it comes to executive privileges
Judge Britt Grant (a person appointed by Trump) specifically asked Trump's attorneys whether they had appealed Judge Cannon's finding that the DOJ had not shown "callous disregard" for the former president's rights. Trump's attorney (James Trusty) stated that they had not appealed that finding. Judge Grant essentially stated that the finding required a reversal of Judge Cannon's order.
Judge Andrew Basher (also a Trump-appointed man) asked Trump's attorney to answer two unanswerable questions:
1. Was there precedent forbidding the DOJ from using the materials seized during the investigative phase of the case before indictments were filed?
2. Aside from the fact that Donald Trump is the former President, was there any factor that would set this case apart from thousands of other people who wanted the ability to challenge a pre-arrest warrant?
Trump's lawyer could not provide an answer that satisfied the judges.
Seeing where the hearing was going, Mr. Trusty attempted to salvage the special master's appointment by undermining Judge Cannon's injunction against the Department of Justice (over the use of the materials seized from Mar-A-Lago). threw.
Trusty argued that the DOJ was not actually harmed by the injunction because the 11th Court had previously issued an order allowing the DOJ to include the 100 documents originally marked as "classified" in its investigation use.
Then Mr. Trusty said, in language I had never heard from a lawyer in over 25 years practicing criminal law, that the injunction was "overkill" and that what really mattered was to keep the Special Master. The 11th Circuit Judges and the DOJ's attorneys pounced on this testimony, noting that it was unprecedented for the DOJ to have been prevented by the judiciary from using documents seized by search warrants during their investigation.
What is likely to happen next?
I rarely make predictions about court decisions. This is the exception.
I would be shocked if the 11th Circuit didn't overturn Judge Cannon's order. I also think it will be quick. The judges asked about the upcoming schedule before the Special Master.
Special Master Raymond J. Dearie has scheduled his next hearing for December 1, at which time he is expected to hear arguments about the remaining 900 documents that he has not previously addressed. Special Master Dearie has until December 16th to present his report and recommendation to Judge Cannon. Thereafter, the parties would have an opportunity to appeal to Judge Cannon and, if necessary, to the 11th Circuit. This process would take months.
I can't see the 11th Circuit letting this circus continue until December 1st, and that's one of the reasons I expect the 11th Circuit to immediately overrule Judge Cannon and end the entire process.
If the 11th Circuit rules against Trump, what is likely to happen next?
If the 11th District rules against Trump, I would expect a summary appeal to the Supreme Court, which would be quickly dismissed. Once that happens, I expect newly appointed Special Counsel Jack Smith and his team will indict former President Trump on multiple counts.
Attorney Jack Smith.
Jerry Lamps/AP
Where would the process take place?
Although Trump has attempted to keep this case in the Southern District of Florida (where Republicans recently routed the Democrats in statewide elections), I expect the indictment will go to 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 are believed to have been committed when Trump removed them from the White House, causing D.C. a possible place for indictment on those charges.
The Incredible Secret How Trump Got Judge Cannon In The Mar-a-Lago Case
Trump would face a trial before a jury in Washington, D.C. almost certainly more to fear than a trial before a South Florida jury. Trump received just 5 percent of the vote in the district in 2020, by far his lowest total ever. On the other hand, he won Florida in 2020.
Would the charges cover anything beyond the Espionage Act?
General John Kelly - Trump's former chief of staff - has publicly stated that the former president has 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 during his presidency, it is a clear crime. Section 7217 of Title 26 of the United States Code makes it a felony for the "President to require, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of a particular taxpayer with regard to tax liability." of such a taxpayer.”
A president who unlawfully attempts to test someone faces up to five years in prison. The crime does not require the IRS to actually conduct the audit. With the mere request, the crime is complete.
However, there is strong evidence here that FPOTUS' illegal demand was indeed executed. As reported earlier this summer, both Comey and McCabe have been subjected to highly unusual IRS audits. The odds of a person accidentally being subjected to this type of audit are similar to being struck by lightning. That both happen to be the subject of a special test is about as likely as a whale falling from the sky and landing in the middle of a mountain range.
A Trump indictment for misappropriating classified documents is now a very real possibility
The IRS Inspector General is already investigating the Comey and McCabe audits. With General Kelly apparently willing to testify that Trump requested these audits, it appears to create additional criminal exposure for the former president.
Based on my training and experience as an Assistant U.S. Attorney prosecuting tax crimes, I expect that every IRS employee down the chain of command kept detailed notes and records of who hired them to perform the audit and the facts that have been cited in support of this audit requirement. I wouldn't be surprised if each of these IRS employees cooperated with the DOJ with all fingers pointed in Trump's direction.
The beauty of prosecuting tax crimes is that the offenses are very clearly defined. Few jurors have sympathy for people who cheat their taxes or wrongly convict the IRS against an individual in pursuit of personal vendetta.
Things are going badly for ex-President Trump in federal court. You could be about to go from bad to much worse.
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donald trump
45th President of the United States
Aileen cannon
American lawyer

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