For ten weeks, the legal controversy over former President Donald Trump’s claim that he owns White House records that he took home with him has been unfolding in five different courts, including the Supreme Court, and is still weeks away from being decided. It is highly complex, from a legal standpoint, but can be explained in a non-technical way.
If the Justice Department ultimately wins, it would end the controversy, because that would deny a Florida federal judge any further opportunity to rule for Trump, as she has done several times up to this point – on some of which she has been rebuffed by higher courts. In short, the result would take Trump’s case completely away from District Judge Aileen Cannon of West Palm Beach on the theory that she simply had no power to take any action at all.
The dispute, though, might not end where it is now being reviewed – in a federal appeals court – and might ultimately go to the Supreme Court for a final decision.
If the federal government does prevail in the end, that would free the Justice Department to make unimpeded use of all of the documents in a criminal investigation of Trump’s handling of them. A decision on whether actually to file charges against him could then be made by Attorney General Merrick Garland. Any actual trial would probably be months away.
At the heart of the dispute is a federal law, passed by Congress in 1946 at the request of the Supreme Court. That law created a set of rules on how federal criminal cases are to unfold in the federal courts. One specific paragraph gives an individual or a company whose private property has been taken under a government search warrant a chance to get back the property by claiming it was taken illegally. That is Rule 41(g) of the Federal Rules of Criminal Procedure.
It was that clause that Judge Cannon relied upon when, early in September, she set up a procedure to allow Trump and his lawyers to make specific claims that the former President is entitled to the return of at least some of the documents that an FBI team seized when, with another judge’s permission, they searched Trump’s Florida resort, Mar a Lago, ten weeks ago.
Although Trump, outside of court, has several times said “These are mine!”, his lawyers are specifically asserting that some are his personal records, some are records of his presidency that he is entitled to use or keep, and some are exchanges between Trump and his lawyers, entitled to privacy. So far, despite repeated chances to do so, neither the former president nor his attorneys have gotten specific about those claims. There have been hints, but no proof, that Trump declassified some of the secret documents and thus withdrew them from special protective safekeeping.
Up to this point, most of the multi-faceted court proceedings have focused on about 100 documents taken from Mar a Lago that were classified because they contain government secrets – including some of the most sensitive and thus potentially most harmful to national security if disclosed or shared with others. Overall, the FBI gathered up more than 200,000 pages of documents, and the legal treatment of all of them is now at issue in the continuing court conflict.
Judge Cannon designated a Brooklyn, N.Y., federal judge, District Judge Raymond Dearie, to go through the documents and make at least preliminary rulings on whether Trump has any legal claim and whether any documents should go back to him. Dearie started that process, but it has been at least partly stalled as Cannon’s actions have been under challenge by the Justice Department in higher courts.
At this point, neither Dearie nor Trump’s lawyers have any access to the classified documents, but could be moving ahead with the review of the much larger trove of non-classified materials. Trump’s legal team failed, in the Supreme Court and in a federal appeals court, to get access to the secret papers for himself, his lawyers and Judge Dearie.
The legal basis of the Justice Department’s current attempt to shut down Judge Cannon altogether is a July 1975 decision by the same federal appeals court now involved with the Trump controversy – the U.S. Eleventh Circuit Court. In the 1975 case, involving tax papers seized from a Texas couple, the appeals court spelled out a series of tests that would have to be met to regain personal possession of seized documents.
The most important of those factors, which the appeals court said was “foremost and indispensable,” is whether the federal government in obtaining the documents showed “a callous disregard for the constitutional rights” of the person claiming the documents. There is no evidence of that in Trump’s case, the Justice Department has noted. (Judge Cannon herself agreed that there was no such disregard, but she decided that a review of the seized documents was still necessary to resolve factual disputes about them. She also claimed the power to order a review of the documents partly because she found that Trump was entitled to some consideration as a former President.)
The other factors, which the Justice Department also argues work against Trump’s claim, are whether he had an individual interest in or need for them, whether he would suffer serious harm if denied access or return of the documents, and whether he has another way legally to protect his interests.
In its 51-page legal brief filed Friday in the appeals court, the Department argued at length that Trump has no real claim to the documents personally or as a former President, that he has not shown he would be specifically harmed if denied access to materials at this point, that the Department has already picked out for return to him any documents bearing on his dealings with his attorneys, and that, in any event, he could raise all of his legal objections to the search of Mar a Lago and the seizure of the documents if, and when, he is actually charged with a crime.
Trump’s lawyers have until November 10 to file their legal brief in the appeals court, and the exchange of briefs will finish with a Justice Department reply by November 17. The Justice Department has urged the appeals court to hold a public hearing before reaching a decision. The appeals court is handling the case on an expedited schedule, so it could be expected to rule promptly after such a hearing.
It seems quite likely that whichever side loses at the appeals court level would try to take the issue on to the Supreme Court. The Justices would have wide discretion to grant or deny review; they have no binding obligation to do so.
One unusual facet of the case is that Judge Cannon relied upon what technically are called her court’s “equitable” powers, which means a general grant of judicial authority to reach a fair outcome, without regard to what a specific law would mandate. It is an ancient power that goes well back into the history of the English courts.
The federal procedural rule (Rule 41[g]) did authorize Trump to sue over the records but it did not seek to guide how a judge would react to the claims, and that is why Judge Cannon based her decision upon how she balanced the competing equities of the dispute.
One of the Justice Department’s key legal points is that such authority is almost never permitted to be used to interfere with an ongoing criminal investigation – like the one now underway over Trump’s handling of the documents after he left the White House. That point, the Department contends, reinforces the limited circumstances that the appeals court’s 1975 ruling allowed for judging a plea to return documents seized under a search warrant.