I and others had fun listening to the oral arguments in this case before the 11th Circuit
Here is one good summary of the oral argumenta
11th circuit opens saying they've read all the briefings and asks the parties to present their arguments quickly. The government is up first and gives background. No equitable jurisdiction, plaintiff hasn't demonstrated likelihood of success, and can't show irreparable harm.
The government already cites the 5th circuit precedent invoked by the 11th circuit (a hint to Chapman and the first Richey factor - a callous disregard for constitutional rights). 2/
Judge Pryor asks Joshi (government) if there's ever been a case where anyone got their shit back pre-indictment without a callous disregard factor). Judge asks if the first Richey factor is Dispositive. Joshi says that's his view, and other courts show its the most important. 3/
But even if it wasn't dispositive (required), he doesn't meet the other three Richey factors anyhow. Judge Grant asks when a movant would have a need to get stuff back under rule 41. Joshi says maybe if a 3rd party like a business needed their stuff back to do business... 4/
But plaintiff would have to show a need and trump can't have one because he already has the documents besides the classified ones. (I'm paraphrasing a lot here). Joshi says trump doesnt want the stuff back, he wants to stop DoJ from using them. 5/
The proper remedy for that would be to file a motion to suppress (Judge asked what an adequate remedy would be). in your brief, you argued we should reverse and remand with instructions to dismiss. 6/
but because this is an appeal for an injunction, if you were right, we would vacate cannon's order over a lack of equitable jurisdiction. So instead of reverse and demand shouldn't we just vacate and not reverse? 7/
Joshi respectfully disagrees saying if the jurisdictional merits are lacking, your court has the authority to not only reverse and remand. Judge says "but isn't it that we vacate?" Joshi says as long as you're not vacating for factual findings. 8/
(They're discussing a technicality on how to kill cannon's order. lol) 9/
Now three minutes for Trusty rebuttal. As to jurisdiction, process needs to be described. Pryor asks are you aware of a SINGLE decision by a federal court where they exercised equitable jurisdiction in a pre-indictment scenario where the search was unlawful? 10/
Trusty: blah blah blah no. There's no case law. But there's no situation in the country where a president raided a former president's home? Judge: do you think "raid" is the proper term?" Trusty: no, sorry for using a loaded term. HAHA 11/
Pryor: but your brief doesnt even argue that the first richey factor of calloused disregard for constitutional rights... if you can't establish that, WHAT ARE WE EVEN DOING HERE? lolol 12/
The judges keep asking Trusty whether he's arguing the legality of the search and seizure. Trusty uses the word RAID again and immediately apologizes. He's rambling about something about this is unprecedented. No shit, bro. lolol 13/
Trusty is now arguing that the first Richey factor isn't necessary - which was what the 11th circuit based their decision on the classified documents on. He's citing the same case law he used when he lost that case. 14/
Pryor asks Trusty "does it matter? the precedent of Chapman binds us." Trusty argues Chapman is misstating the law. He's now arguing "faith in the criminal justice system" as cited by Cannon. 15/
Judge asks if he wasn't the former president, would this be any different? Trusty says they're not looking for special treatment for president trump, but there's a context. Another judge says Trusty didn't answer the question. 16/
Trusty says everyone has the fourth amendment right. Judge Pryor says "so there is no difference?" Trusty says there's no secret that they have concerns about PRA, executive privilege etc. 17/
Pryor says that since that argument was never made, it is a secret to us. lolol this is GOLD. "we have to determine when it's proper for a district court to do this in the 1st place. other than the fact that this involves a former POTUS, everything else is indistinguishable. 18/
...and we have to be concerned about the precedent we would create by allowing any other defendant interfere with the executive branch's investigation by asking for special counsel. 19/
Trusty is now mad the search warrant included the ability to take items that are co-mingled with classified documents which gave them carte blanche to take whatever and that's a real 4th amendment concern. 20/
Judge: yeah but you never made that argument. Trusty says "things have changed". (sorry about all these typos) 21/
Trusty says there's prejudice and it isn't realistic for the government to complain that they can't investigate. (Wow, so he's saying the cops can't ever seize anything). Trusty is now again arguing about the richey factors. 22/
Pryor "the problem is that you view the injunction as the most overblown part - but think of it from our view. the judiciary doesn't interfere with investigatorial decisions. Thats the who nature of this kind of jurisdiction. 23/
Trusty's answer again is that this is an extraordinary case. Basically trump should be above the law without directly saying that. 24/
Trusty says Dearie has a hearing December 1st and there are about 1000 documents under dispute. Judge asked what you disagree about? Trusty says privilege, personal records, etc (their crazy arguments that stealing documents makes them personal) 25/
Joshi's rebuttal. first, regarding the timeline, yes, dearie should be done by the middle of next month. But there could be more briefings, and arguments, and probably appeals. Delay is fatal to the vindication of the criminal law. 26/
Joshi reiterates that there is no irreparable harm because plaintiff has all these documents. Also says there's nothing wrong with the search warrant. It was precisely descriptive and that's exactly what we took. 27
Judge: besides, isn't that also a new arguemtn from Trusty? Joshi: yep. that was going to be my second point: trump keeps moving the goalposts. He argued first they were declassified. Now today I'm hearing about a Frank's hearing. 28
I think this just illustrates how anomalous this jurisdiction is and what a bad precedent it would be and i think the court should reverse. Judge Pryor says we are adjourned. END/
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