Trump's Gonzo Bid To Disappear The Evidence In His Docs Case
Try that in a small town. But only there, because a real judge will not put up with that shit.
One of the perks of litigating in front of Judge Aileen Cannon, known to the former president’s inner circle as their “favorite member of the Trump campaign,” is that Trump’s lawyers are free to say literally any crazy thing in court.
Misstatements of law? Scurrilous attacks on the prosecutors? Outright lies?
It’s all good when you’re on Team Trump.
And last Tuesday we got a look at a pair of exceptionally mendacious examples of this phenomenon when Judge Cannon finally got around to unsealing two motions filed in February, along with the government’s responses. On Thursday we wrote about the Motion to Dismiss Based on Selective and Vindictive Prosecution, an attempt to derail the case based on the concocted theory that the National Archives conspired with President Biden to frame Donald Trump for swiping national security documents and refusing to give them back when subpoenaed.
Now let’s talk about Trump’s bid to get rid of the evidence seized when the FBI executed the search warrant at Mar-a-Lago in August of 2022, along with the testimony of his lawyers Evan Corcoran and Jennifer Little to a grand jury in DC.
Motion to Label Every Other Judge in America as “Unlawful”
On February 22, Trump filed a Motion for Relief Relating to the Mar-a-Lago Raid and Unlawful Piercing of Attorney-Client Privilege. The caption itself is inflammatory, describing a search executed pursuant to a judicially authorized warrant as a “raid,” and characterizing a ruling by the Chief Judge of the US District Court in DC as “unlawful.” And the underlying arguments are similarly incendiary.
“On August 8, 2022, armed FBI agents stormed the private residence of a former president of the United States,” attorneys Todd Blanche and Chris Kise began, conveniently omitting the 18 months in which their client refused to return stolen government documents and caused his lawyers to falsely represent to the Justice Department that they had. “What was unthinkable with respect to President Clinton’s recordings, and deemed unwarranted with respect to Hillary Clinton’s destruction of evidence, was determined to be appropriate by the Biden Administration for President Biden’s chief political rival.”
The document demands the court hold a Franks hearing to challenge the legality of the search warrant. For an excellent explainer on this criminal procedure, check out this post by Baltimore law firm Silverman Thompson, home of attorney Evan Corcoran, who appears in this document as “Person 18,” AKA “Trump Attorney 1.” (LOL forever!)
In short, to qualify for a Franks hearing, the movant must prove that the affidavit supporting the warrant contained a “false statement [made] knowingly and intentionally, or with reckless disregard for the truth,” and that the information was material, such that the warrant would not have been approved without it. Omissions may also, under certain circumstances, qualify as false statements.
Generally, you lead with your best argument first, and here Trump’s first argument is ridiculous. He claims that the FBI agent misled Magistrate Judge Bruce Reinhart because theye failed to mention that there was internal dissension between the FBI and Main Justice over whether they should ask for Trump’s consent to search Mar-a-Lago, or execute a warrant.
This is a story ripped from the wingnut media, after Steven D’Antuono, who formerly served as Assistant Director of the FBI’s Washington Field Office, came forward to say that he’d argued against the warrant. But of course, it wasn’t D’Antuono’s call to make, as he himself admitted to the House Judiciary Committee last year.
“These are conversations I had with U.S attorneys -- AUSAs and U.S. attorneys and everyone else throughout my whole career. This was not a showdown,” he testified, adding “So if somebody took it the other way, I'm sorry, but that's -- that was just the general discussion that we would have in every case. Every case.”
As the special counsel noted in his response, “Even if some would have preferred one investigative technique (consent) while others favored a warrant, the omission of those details would have no effect on the magistrate’s common-sense determination that there was probable cause that evidence of a crime would be found in the location to be searched.”
The other supposedly material omissions in the warrant include:
"fail[ing] to disclose that presidents are not required to obtain clearances and that sensitive briefings including classified information had been provided to … Trump at Mar-a-Lago and other residences before and during his presidency;”
“suggest[ing] that the FBI had only initiated its investigation after the sham referral from NARA-OIG on February 9, 2022;” and
“omitt[ing] the definition of ‘personal records,’ 44 U.S.C. § 2201(3), and the caselaw conferring on … Trump alone the discretion to designate documents as Personal Records.”
The government countered that none of these things have any relevance to whether there was probable cause for the magistrate to believe that national defense information was being improperly stored at Mar-a-Lago — which it was. Also, the referral was not a “sham,” and Trump himself admitted the records were presidential, not personal. But other than that … A+ reasoning there!
And speaking of chutzpah, Donald Trump’s lawyers are actually asking Judge Aileen Cannon, who has been on the bench for about ten minutes (during which she’s managed to disgrace herself and get humiliated by the Eleventh Circuit), to rule that the Chief Judge of the US District Court in DC doesn’t know how to law. Judge Beryl Howell, a distinguished jurist who served as chief judge of the federal court in DC during the investigative phase of the special counsel’s dual inquiries, forced the aforementioned Evan Corcoran to testify about his dealings with Trump under the crime-fraud exception to attorney-client privilege.
As the government’s response points out, Trump sought an emergency stay of the order for Corcoran to testify, and the DC Circuit denied it — which would strongly suggest that Judge Howell’s ruling did not constitute a gross abuse of discretion or error of law. Nonetheless, his lawyers have filed a pleading inviting Judge Cannon to overrule the holding of a fellow District Court judge — someone who has the same job as she does! — for having “erred” and “failed” to understand basic legal tenets. Trump’s lawyers go so far as to demand that the case be dismissed as sanction on the government.
You’re Making Things Up Again, Donald
If Judge Howell’s abrogation of attorney-client privilege under the crime-fraud exception was erroneous, the appropriate remedy is a motion in limine to exclude the privileged evidence, not a motion to dismiss. But here’s how Trump’s lawyers ended this motion:
Finally, because of the highly prejudicial nature in which the Special Counsel’s Office used the privileged evidence, including through extensive quotations in the Superseding Indictment, the Court should dismiss the charges. See United States v. DeLuca, 663 F. App’x 875, 878 (11th Cir. 2016) (describing multi-day hearing relating to extent of privilege violation and assessment of resulting prejudice).
That citation to DeLuca is breathtakingly disingenuous, and not just because they’re saying a criminal prosecution should be dismissed because the government relied on the opinion of a sitting federal judge when crafting their indictment.
That “F. App’x” citation indicates that the opinion is unpublished. Unpublished decisions are not binding precedent (and, until recently, couldn’t even be cited in a pleading). DeLuca was also per curiam, meaning no judge attached their name to it, and such opinions are also of dubious value as precedent. (Some states essentially prohibit citing per curiam opinions at all.) So this is the kind of case you really wouldn’t want to rely on unless it was an exact match on the facts.
But DeLuca is not an exact match on the facts, because it involved government investigators who stipulated that they would protect attorney-client privileged information and then turned it over to prosecutors anyway. DeLuca is a poor analog to Trump’s case, where a trial judge ruled that the attorney-client privilege did not apply, not least because DeLuca lost! The Eleventh Circuit affirmed the trial judge’s refusal to dismiss his case, noting that “there is no per se rule requiring dismissal of the indictment as the sanction for intrusion into the attorney-client relationship by government agents.”
However, another case captioned In re Grand Jury Proceedings, 142 F.3d 1416 (11th Cir. 1998), in which an attorney testified before the grand jury, is both precedential and virtually an exact match on the facts. In that case, the Eleventh Circuit held that the remedy for improperly piercing attorney-client privilege under the crime-fraud exception was not to dismiss the case, but rather, for the defendant to move in limine to exclude any improper testimony from being introduced at trial. In other words, the law is the opposite of what Trump says it is.
But even if Judge Howell had gotten it wrong (she didn’t), and even if dismissal were the appropriate remedy (it isn’t), Trump still wouldn’t be entitled to relief because he had the chance to contest Judge Howell’s ruling last year and decided not to.
“[T]his motion is not a vehicle to attack the D.C. district court’s disclosure order, prosecutors argued, reminding the defendant and the trial judge that Trump tapped out last October when he sought an emergency stay of Judge Howell’s order, and the DC Circuit gave him the back of its hand. “Trump participated in that litigation and had the opportunity to seek review of the district court’s disclosure order but voluntarily dismissed his appeal in the D.C. Circuit.”
Having abandoned his appeal nine months ago, he cannot simply resume it in another trial courtroom now.
Malice? Or Incompetence?
And Trump’s lawyers are not stupid. Kise, is the former Florida solicitor general, and Blanche made his bones as a federal prosecutor in New York before selling his soul. These guys know damn well what a non-precedential decision is. They’re not misstating the law and the facts by accident. They are deliberately taking advantage of Judge Cannon’s bias and inexperience to abuse the judicial process and behave in ways which would have been rebuked in any courtroom. Indeed, Blanche got banned from filing any more public motions without permission of the court ,after spamming the New York docket with garbage in the leadup to the trial. And Kise got himself sanctioned by Justice Arthur Engoron for filing repetitive, “borderline frivolous” motions. But in Florida, they get rewarded for these antics with multi-day hearings on idiotic issues, ensuring that the case will go to trial in 2025, if ever.
And, PS …