On Tuesday, a three-judge panel from the 11th Circuit Court of Appeals heard oral argument on the federal government’s contention that Judge Aileen Cannon overstepped her authority in limiting the Justice Department’s access to and use of the documents seized earlier this year at Donald Trump’s home in Florida, Mar-a-Lago. Despite the technical nature of the hearing’s dialogue—one that covered, among other things, the nature of interlocutory appeals, the scope of Rule 41 of the Federal Rules of Criminal Procedure, and the limits of equitable jurisdiction—it appears that the government’s position will, at least in part, win the day. Throughout the session, counsel for the former president was unable to satisfactorily respond to skeptical questions from all three panel members. Ignoring the wisdom that one can never predict what a court will do based upon oral argument, it seems that the panel will either rule that Judge Cannon had no jurisdiction to rule on the investigation in the first place, and will vacate all of her prior rulings, or it will severely curtail the review process that she created. In sum, the government had a good day.
It also seemed to be a good day for those of us mesmerized by the ongoing and seemingly futile attempts to meaningfully confront Trump’s ongoing criminality. The three and a half months that have passed since the Aug. 8, 2022, Mar-a-Lago search and seizure have seemed more like three and a half years. We have endured apparent delays caused first by the DOJ’s internal guideline that precludes indicting a major political figure before an election, then the various interventions of Judge Cannon debated in the 11th Circuit Tuesday, and the recent DOJ appointment of a special counsel to oversee the investigation.
If the 11th Circuit does what now seems likely, once the newly appointed special counsel gets up to speed, an indictment of the former president for unlawful possession of the materials found at Mar-a-Lago should quickly follow. The case is both a prosecutorial “slam dunk” and the most effective way to begin prosecuting all matters related to the Jan. 6 riot and the attempts to overturn the 2020 election.
As has been noted by a number of legal observers, the Mar-a-Lago prosecution is much like a simple drug possession case. Donald Trump was in possession of something proscribed by law: not a controlled substance like heroin, but documents that were legally required to remain with the government. The materials in question did not even have to have been classified for their removal to have broken federal law.
Thus, the government’s case can be presented in just a few days. First, one or more of the FBI agents who executed the Mar-a-Lago search warrant will identify the specific documents found in the defendant’s residence and have them entered into evidence. Then, an appropriate person from the National Archives can be qualified as an expert witness to explain how these items are never supposed to leave governmental custody and the steps required to lawfully declassify such materials. If that witness did not participate in the ongoing and unsuccessful conversations with the former president about the need to identify and return these materials, the National Archives official who did will be called as a fact witness and will narrate Trump’s repeated refusals to follow the law. Finally, Eric Herschmann, a White House lawyer who reportedly warned Trump that he was violating the law in keeping the documents at Mar-a-Lago, will tell the jury about those warnings and Trump’s response. Nothing more would be required.
There are others who could be called if prosecutors so desire, including Trump attorney Christina Bobb, who signed a false statement about the documents. Indeed, the DOJ likely has documents and witnesses from start to finish, that is, from the removal of these materials from the White House to their transportation to and within Mar-a-Lago. (For example, there is Trump’s custodial assistant who, at his direction, moved papers stored in Mar-a-Lago from one place in the complex to another, in an obvious attempt to keep them hidden.) In the end, absent the testimony of a yet-to-be-identified White House co-conspirator or two, whether and what additional available evidence is offered will not be crucial, because the core evidence presented by the National Archives witnesses, the FBI agents, and Eric Herschmann, standing alone, cannot be defended.
And speaking of the defense, as someone who prosecuted and defended federal white-collar criminal cases for more than four decades, there is none. The ongoing absurdities the former president and his supporters have put forth—whether his undocumented, magical declassification of the top-secret materials; the alleged planting of the documents at his home by the FBI; or any of the other risible claims made—may have provided helpful fodder in the right-wing media, but none of it will help the former president in a court of law. Ironically, the principal witness invoking these claims will likely not be able to assert them at trial. If his lawyers had him invoke his privilege against self-incrimination in a civil tax case where that invocation can be used against him, and where he could have blamed expensive tax preparers and lawyers for the unfortunate content of his tax returns, Trump will surely not be called to assert these facially absurd claims that he cannot factually support about the Mar-a-Lago documents. Paradoxically, the only way any of Trump’s “defenses” can be admitted into evidence at the Mar-a-Lago trial is if the government itself offers them, per the Federal Rules of Evidence, as “false exculpatory statements” made by the defendant that demonstrate his “consciousness of guilt.”
Finally in this regard, in multifaceted investigations, prosecutors need to win the first case brought because it strengthens their hand going forward, as remaining targets read the writing on the wall. Losing, of course, does the opposite, and with the breadth of the matters now under investigation by the DOJ, anything less than a guilty verdict in the first case filed would place an extraordinary burden on all prosecutorial decisions to follow.
Prosecuting the most significant player first, in what might be multiple, prolonged prosecutions arising from the Jan. 6 riot and the multifaceted attempts to overturn the 2020 election, has two distinct benefits: It demonstrates the legal principle that “no one is above the law” is not just an ideal, but a reality. At the same time, it should lessen the ensuing national trauma of having major public figures on trial for, in essence, seeking to overturn the democratic process. If the 11th Circuit is about to clear away the last obstacle to achieving these goals, there is no need to delay.
