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Donald Trump has received quite a bit of legal news lately, and none of it is good. It was less than a week ago, for example, that Attorney General Merrick Garland appointed a special counsel to oversee two ongoing criminal investigations into the Republican’s alleged misconduct. It coincides with a separate criminal probe in Georgia, and reports of prosecutorial interest in Trump’s hush-money scandal in New York.
Yesterday, meanwhile, the U.S. Supreme Court cleared the way for Congress to finally obtain the former president’s hidden tax returns, causing Trump to throw an online tantrum, lashing out at the justices.
But perhaps most discouraging of all for the Republican were the developments in an appellate courtroom in Atlanta. The New York Times reported:
A federal appeals court panel signaled on Tuesday that it is likely to end a review of a trove of government documents seized this summer from former President Donald J. Trump, a move that would greatly free up an investigation into his handling of the material. At a 40-minute hearing in Atlanta, the three-member panel of the U.S. Court of Appeals for the 11th Circuit seemed to embrace the Justice Department’s position that a federal judge had acted improperly two months ago when she ordered an independent arbiter to review the documents taken from Mr. Trump’s Florida compound, Mar-a- Lago.
In case anyone needs a refresher, it was two months ago when U.S. District Court Judge Aileen Cannon gave Trump and his lawyers effectively everything they wanted in the Mar-a-Lago scandal: The Trump-appointed jurist approved a request for a special master and blocked parts of the Justice Department’s ongoing investigation.
Among legal experts from the left, right and center, a consensus formed quickly: Cannon’s decision was ridiculous. Prominent legal voices used words like “nutty,” “preposterous” and “oblivious” when describing the Labor Day ruling. Neal Katyal, a former acting solicitor general, described the judge’s legal analysis as “terrible” and “awful,” before concluding: “Frankly, any of my first-year law students would have written a better opinion.”
On Sept. 21, a three-judge panel at the 11th Circuit Court of Appeals — including two Trump appointees — undid key elements of Cannon’s order.
Harvard law professor Lawrence Tribe said the 11th Circuit’s ruling read “a lot like a stern but polite reprimand of a child caught red-handed who needs to be read the riot act.”
The federal appeals court is now considering a related question: Was it a mistake to appoint the special master in the first place?
In theory, the former president and his team had reason to be pleased with the randomly assigned three-judge panel: The trio includes Chief Judge William Pryor, a prominent conservative appointed by George W. Bush, and Judges Andrew Brasher and Britt Grant, both of whom were appointed by Trump. (Grant and Brasher were also part of the panel that heard the related Mar-a-Lago case in September.)
But in practice, the jurists seemed wholly unimpressed during oral arguments. From the Times’ report:
Through their questions, the panel expressed concern that Judge Aileen M. Cannon, who appointed the so-called special master, had acted without precedent by ordering a review of the seized material. The panel also suggested that Judge Cannon, who was appointed by Mr. Trump, had overstepped by inserting herself into the case and trying to bar the government from using the records in its investigation into whether Mr. Trump had illegally kept national security records at Mar-a-Lago and obstructed the government’s repeated efforts to retrieve them.
A report from Talking Points Memo added that Trump’s lawyer “presented his stew of rapidly changing, sometimes conflicting, always ephemeral legal arguments” to appeals court judges who “often reacted with incredulity.”
As for why this matters, the Justice Department isn’t able to bring charges in the Mar-a-Lago case unless and until federal investigators know what evidence they have and how they’re able to use it. If the 11th Circuit rules that a special master shouldn’t have been appointed in the first place, prosecutors will be able to move forward with their case without interference.