For the untrained and unwary person, defending a person accused of a criminal offense may mean deploying a “win at all costs” strategy. But when Donald Trump’s defense team asked a special master to review files lawfully seized from Mar-a-Lago pursuant to a search warrant, we saw the startling hubris of the defense attorneys who seemed to have their eyes shut. closed to the law when it did not. fit their goals.
The desire for a special master arose directly from Trump’s slowing down, hindering and using the time to play the victim’s circus act. The 11th Circuit U.S. Court of Appeals ruling Thursday that a district judge was wrong to designate such an assessment of the documents and bar the Justice Department from using them in its criminal investigation of Trump, was the right move.
We saw the surprising hubris of defense attorneys who seemed to have turned a blind eye to the law when it did not suit their goals
Trump’s defense team needed to know that his request was unfounded on the basis of the separation of powers. In fact, a grade school social studies class (I’m definitely dating myself now) may have known. That is where many first learn that the legislature makes the law, the executive enforces the law, and the judiciary interprets the law.
Any attorney with a pulse knows, or should know, that the judiciary, in just about any instance, has no right or authority to interfere in a criminal investigation conducted by the executive branch (here, the Department of Justice).
And if a defendant thinks he has the proverbial golden ticket (a nod to Willy Wonka) to let the judiciary put a broom in the spokes of a Justice Department investigation where, say, the department has a search warrant received and carried out, then the law is as clear as the correct spectacle prescription. The aggrieved party (here Trump) must provide evidence of the following four: (1) the administration’s callous disregard for its constitutional rights; (2) his interest in or need for the seized items; (3) he will suffer irreparable damage if the items are not returned; and (4) it has no adequate legal remedy.
Team Trump couldn’t muster the strength to jump over the first hurdle. Not only was the administration not insensitive when it came to Trump’s constitutional rights, but the administration was also deferential and almost submissive to him. How many times has the former president been politely asked to simply deliver the documents?
Now that we know Trump’s defense had no reason to be on the first standard of evidence, what about the other three? Well, the Trump team couldn’t do better with the second or third. It boils down to one simple fact: These documents are not Trump’s. They are from the government. The only downside Trump suffers from having these documents in the hands of the Justice Department is the ease with which he can be prosecuted — it’s really over if he owned them.
In reality, the only ones who are harmed in the context of these documents are the public, and those who are protecting us in a covert capacity because among the documents was highly classified information.
Which brings us to number 4. And the former president doesn’t have a case there either because he is doing have an adequate remedy, though his defense team hopes it never has to resort to it. The bad news is Trump should be indicted; the good news is that Trump could then exercise his right to challenge (dispute) the search warrant and file a motion to suppress the results of the search. In other words, Trump could take steps to keep the seized documents out of prosecution by attempting to claim they were obtained in violation of his Fourth Amendment right to be free from an unreasonable search and seizure.
It is the job of a criminal lawyer to provide the client with the best possible outcome. Defense counsel looks at the facts of a case and the applicable law in the hope that one of them is in the client’s favour. A seasoned defense attorney looks at the intersection of a case and determines that “if the facts take me that way, I’ll go that way” or “if the law takes me that way, I’ll go that way.” away.”
When the district judge considered whether to award Trump a special master’s degree, she should have clearly seen that Team Trump wanted to delay the proceedings.
But what happens if the lawyer has neither? Then it may be that the strategy is to simply slow down which is unavoidable. And that is where the subdistrict court must act to stop frivolous delay. The subdistrict court has a dual responsibility. One is to ensure that the delay is not the product of defense arguments that cannot be supported by existing law. The other is to decide whether the defense argued in good faith that the law is wrong and should be changed, if not overturned.
When the district judge considered whether to award Trump a special master, she should have clearly seen that Team Trump was trying to delay proceedings by simply choosing to ignore fundamental concepts of separation of powers and the law.
A fifth grader knows that the judiciary cannot make law. A 3L or third-year law student who has taken criminal procedure knows that a search warrant is issued by a judge after the government provides evidence that evidence of a crime is more likely to be found in a particular place. A third-year associate at a law firm knows the difference between a court of law (where an injured party wins damages, for example) and a court of law (where the court tries to be fair by, for example, issuing an injunction maintaining the status quo until the case is over). And I knew quite early in my criminal justice career that it is rare that a criminal judge can or will exercise equitable powers in a criminal case. In Trump’s case, the district court decided to sit as a court of fairness. That was completely inappropriate.
Fortunately, the appeals court ruled in favor. Team Trump’s arguments were secondary. They were a not-so-thinly disguised effort to keep the Justice Department from sitting down with the documents seized under a court-blessed search warrant and to determine whether it’s time for Trump to answer for his behaviour. The former president cannot keep those charged with enforcing our laws on a wild goose chase forever. The 11th Circuit was right in telling the Trump circus to pull up its marquee.