Fogbow

Suranis wrote: ↑Mon Sep 05, 2022 1:25 pm Today would be a good day for a raid on trump tower and other properties, and continuing the investigation using material siezed from THOSE properties.

Mystal: The argument that he has executive privilege is so what the scientists would call stupid… It would be like if Trump called for executive privilege over Air Force One and parked the plane at Mar-a-Lago…

Quinta Jurecic
@qjurecic

Barnburner of an NYT article, quoting seven (!) law profs on Cannon's ruling, none of whom is a fan

‘Deeply Problematic’: Experts Question Judge’s Intervention in Trump Inquiry
A ruling by a judge appointed by former President Donald J. Trump surprised specialists and could slow the documents investigation.

After Judge Cannon was assigned to Mr. Trump’s special master lawsuit, she made the unusual move of publicly declaring that she was inclined to instate one even before hearing arguments from the Justice Department. But she could have done so in a far more modest fashion.

“Judge Cannon had a reasonable path she could have taken — to appoint a special master to review documents for attorney-client privilege and allow the criminal investigation to continue otherwise,” said Ryan Goodman, a New York University law professor. “Instead, she chose a radical path.”

A specialist in separation of powers, Peter M. Shane, who is a legal scholar in residence at N.Y.U., said there was no basis for Judge Cannon to expand a special master’s authority to screen materials that were also potentially subject to executive privilege. That tool is normally thought of as protecting internal executive branch deliberations from disclosure to outsiders like Congress.

“The opinion seems oblivious to the nature of executive privilege,” he said.

Orin Kerr
@OrinKerr

I know it's un-Twitter-like to ask a genuine Q, not try to score points, but a Q. I understand how a court can enjoin further execution of a warrant. But does a federal court have authority to enjoin executive branch "use" of seized materials for "investigative purposes"?

The warrant is a court order, so executing it is a judicial issue (putting aside, at least for now, that this was another court's order). But this seems to be an order to enjoin the investigation *after* the warrant was executed.

Some cases:
"Prospective defendants cannot, by bringing ancillary equitable proceedings, circumvent federal criminal procedure." Deaver v. Seymour, 822 F.2d 66 (DC Cir. 1987) (Silberman, J.) (rejecting civil suit to enjoin govt from indicting plaintiff).

Lots of good citations in this recent district court case, to the effect that federal courts lack the power in a civil action to enjoin the executive branch from prosecuting a
criminal case. The case is McPhee v. United States, 2021 WL 5014815 (SDNY 2021)

Ok, so it seems like a federal court in a civil action lacks the power to enjoin a federal prosecution. To my mind, that raises a lot of questions. Judge Cannon has tried to enjoin "use" of the seized materials "for investigative purposes." First, is indicting Trump "use"?

Second, if a federal court lacks power to stop the executive branch from prosecuting a case, can it have power to stop the executive branch from investigating a case to see if a prosecution is appropriate? (I would think they go together-- both core executive branch functions.)

To my mind, this is one of the weirdest parts of Judge Cannon's order. Appointing a special master is very odd here. But the bigger deal is enjoining "use" of the seized materials that were already searched, for further "investigative purposes" (whatever that means).

In the context of a contraband case, where proving the case is all about using the seized items, that injunction amounts to a judicial takeover of the executive branch's investigation. I don't see how a federal judge has the power to do that.

I take the judge's view to be that she has to control the executive branch's investigation to stop it from potentially violating Trump's rights. But under our system of separated powers, that has to be dealt with ex post, not through an injunction. LA v. Lyons, 461 US 95 (1983).

Greatgrey wrote: ↑Mon Sep 05, 2022 10:29 pm Can you imagine where we would be if instead of Judge Land hearing one of Orly’s cases it landed in ‘Judge’ Cannon’s courtroom?

Chilidog wrote: ↑Tue Sep 06, 2022 12:12 am Can the National Archives sue Trump in the DC circuit asking for the return of its property?

I’m just waiting for the Trump-appointed Judge to name Devin Nunes as the Special Master now.

roadscholar wrote: ↑Tue Sep 06, 2022 9:29 am I read somewhere that she said the FBI seized "Trumps' medical records and tax returns."

I don't know, but that sounds like she's parroting Trump/Fox horse-hockey.

Anyone heard that such documents were seized? I mean, besides from Loose Cannon?

RTH10260 wrote: ↑Tue Sep 06, 2022 10:15 am Nunes? "How to milk a cow the government"