On Monday, Judge Aileen Cannon issued an injunction temporarily blocking the Department of Justice from using materials it seized as part of a lawful search of Donald Trump’s residence at Mar-a-Lago in an ongoing criminal investigation involving the taking of classified documents. That order is unlike any I have seen in 14 years of litigating search-and-seizure issues. Although the search arose from a court-issued warrant, and although it may have yielded evidence of potential crimes, a federal district court authorized the appointment of a special master to review the seized materials for what the court called “personal” and “potentially privileged” items. But the court did not stop there. It also enjoined the government from using those materials for any law enforcement purpose until after the special master’s review.
This injunction is remarkable. It appears to require the federal government to halt its investigation, no matter the evidence. But I will leave it to others to say how this order encroaches on the federal government’s law enforcement authority. Any unfairness that this order visits on the government should not be permitted to obscure the quite different, and glaring, unfairness that it represents for countless suspects not named Donald Trump. That’s because, when viewed against how the criminal legal system normally operates, this order implies two systems: a gentle system for Trump, and a wholly separate, and infinitely harsher, system for everyone else.
Let’s start with some context. Federal courts regularly issue search warrants, and those warrants regularly intrude on people’s private lives. A Westlaw search from the last 12 months reveals thousands of federal dockets involving search warrants, including hundreds from the Southern District of Florida, where Mar-a-Lago is located. There are warrants to search properties. Warrants to search email and social media accounts. Warrants to search cell phones. Even warrants to track people using government “cell site simulators” that trick cell phones into thinking that they are communicating with commercial cell towers.
The purported justification for these warrants is that their intrusions on privacy, though substantial, are outweighed by law enforcement interests. Courts have held that search warrants are valid when they rest on probable cause to believe that the search will produce contraband evidence of a crime.
Even when people rightfully feel aggrieved by search warrants, there is usually little they can do to limit the government’s use of the evidence until criminal charges are filed. Once that happens, they can seek a hearing if they make a substantial preliminary showing that the warrant affidavit relied on a knowing or reckless false statement. They can move to suppress the evidence if they have grounds to allege that the search violated their constitutional rights. But, as other commentators are observing, it is virtually unheard of for a federal court to halt a criminal investigation, especially absent any finding that the government violated the law.
Yet the Mar-a-Lago order does precisely that. Let’s put aside for a moment that the order entertains the wild notion that Trump can assert “executive privilege” against the executive branch with respect to documents he doesn’t own based on a presidency he no longer controls (and which he tried to steal). Just as alarmingly, the order relies on concerns about “personal” privacy that simply do not trouble courts when they deal with regular people who have yet to be indicted.
The court starts by invoking Rule 41(g) of the Federal Rules of Criminal Procedure, a rarely-used provision that allows for motions to return property by “[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property.” The court appears to conclude that invoking Rule 41(g) here is justified by “exceptional circumstances.” But, on closer inspection, the circumstances that seem to matter to the court are just the routine incidents of executing warrants.
The court says that the government seized not only classified documents but also various “personal” effects, like “medical documents, correspondence related to taxes, and accounting information.” The court says that “being deprived of potentially significant personal documents,” without more, “creates a real harm.” The court points to the potentially “indelible stigma” of a future prosecution. And the court states that, without Rule 41(g), Trump might have to wait indefinitely to get his stuff back.
Literally none of these things is exceptional. They are the same privacy and stigmatic harms that the government routinely imposes—and which federal courts routinely authorize the government to impose—on countless people whose property is seized and searched when warrants are executed. So if these concerns merit protections for Trump, then logically they would merit protections for many, many others.
Consider a cell phone. Is a phone likely to contain “potentially significant personal documents”? You bet it is. A phone containing texts planning a bank robbery might also contain texts planning a birthday party. A phone app reflecting payments for drug transactions might also reflect payments to an accountant or a therapist. A phone containing pictures of someone holding an illegal firearm might also contain, well, nudes. The possibilities are endless. And they are endless because, if anything, a cell phone is likely to contain far more information, and thus far more personal information, than the documents retrieved from Mar-a-Lago.
So, have federal courts appointed special masters and curtailed criminal investigations whenever the government seizes a cell phone? No, they haven’t. Have federal courts appointed special masters and curtailed criminal investigations whenever suspects commingle evidence of crime with items from their personal lives? Again, no. This might shock you, but commingling stolen goods and contraband with your private possessions does not tend to keep you from being investigated and prosecuted.
Which raises a concern that what truly makes the Mar-a-Lago case exceptional—what makes it, seemingly alone, worthy of an investigatory pause—is that it targeted Donald Trump. His privacy matters more than other people’s. His reputation matters more. His rights matter more.
In raising this concern, I do not question Judge Cannon’s sincerity. On the contrary, I assume she believes that her ruling is fair. But that’s all the more distressing. If legal doctrines become so malleable, so bereft of clear boundaries, that they can be unwittingly molded into one set of rules for Donald Trump and a different set of rules for other suspects, then how can we say they guarantee equal justice under the law? We can’t.
Those are the stakes as we await word on whether Judge Cannon’s order will be appealed and reversed. The fairness of our system does not depend solely on whether Trump is held accountable for any crimes he committed. Nor does it depend solely on whether the Department of Justice is free to investigate and prosecute crime. It also depends on whether the thousands of people caught up in criminal investigations can expect one justice system, or two.
When I worked as an assistant federal defender, my clients would sometimes send me cases that they thought might help them. And so I anticipate that many criminal suspects and defendants will soon be asking their lawyers for “Mar-a-Lago Motions.” What should their lawyers say? Unless a reviewing court reverses Judge Cannon’s order, I worry that the truthful answer will be: “Sorry, that motion works for one man only, and you aren’t him.”