Question: the appeal court ruled upon a procedural error of the district court, not on a litigated action by the plaintiff. What could a potential argument to SCOTUS be in this clear cut case? Would the plaintiffs attorneys even try to buy some extra few days time by filing something laughable in the legal community?
RTH10260 wrote: ↑Sat Dec 03, 2022 2:58 pm
Question: the appeal court ruled upon a procedural error of the district court, not on a litigated action by the plaintiff. What could a potential argument to SCOTUS be in this clear cut case? Would the plaintiffs attorneys even try to buy some extra few days time by filing something laughable in the legal community?
Jurisdiction is not really a procedural error. It is a threshold consideration for the court - no jurisdiction, no case.
There is probably not a successful argument that could be made en banc or at SCOTUS, for the reason stated in the 11C opinion - expanding equitable jurisdiction to cover this case would massively clog up the federal court system and provide endless backlog for any number of criminal cases.
The plaintiff’s attorneys will try anything, including and especially the utterly risible. Come on, that was a softball.
chancery wrote: ↑Sat Dec 03, 2022 2:43 pm
Judge Cannon's failure to grant, or even act on, the government's reasonable request for extensions of all Special Master deadlines strikes me as unprofessional, certainly inconsiderate, and in fact openly vindictive.
She doesn't want to issue any ruling in favor of the DOJ.
But I think she also knows Trump will take it to the Supremes this week, which gives her time to rule on Trump’s recent motion.
I want to see her order the release of the unredacted affidavit for the search warrant, after what the 11th Circuit said about her, and while the case is still pending in the Supreme Court.
It would be pretty cheeky for a judge to do something like order the release of the unredacted search warrant with a circuit court order to vacate and dismiss hanging over her head.
OTOH, Judge Cannon ....
If she did order the release of the unredacted search warrant, I would imagine that the 11th Circuit would quickly grant a petition for mandamus with directions to assign the case to a different district judge instanter, the mandate to issue forthwith.
The trouble would be timing. When Judge Cannon ordered the classified documents to be released to the Special Master and Trump's counsel, the government had considerable ability to resist, because she didn't have custody over them. By contrast, the search warrant affidavit is, I assume, in SDFL's sealed documents "vault," and I doubt that the clerk's office would defy an order to release it.
In a proper case a court of appeals could issue the writ on a telephone application, but there still might not be time to prevent release of the document.
Edit: there's been a good deal of chatter about the desirability of seeking Judge Cannon's impeachment, all of it baloney, even apart from the political impossibility.
However, a stunt like releasing the search warrant under the present circumstances would IMO fall in the category of misbehavior that would make impeachment appropriate, although it would take more than a single instance to make a case.
It would be pretty cheeky for a judge to do something like order the release of the unredacted search warrant with a circuit court order to vacate and dismiss hanging over her head.
Does she even have the authority to order that? The search warrant was granted / ordered by the Reinhart court.
Further I believe the DOJ can appeal the order, even when formally it were to be an unappealable intermediary decision, it buys time until the appeal court needs to say "sorry, no". By then issue may be moot cause the dismissal has been effected.
RTH10260 wrote: ↑Sat Dec 03, 2022 7:20 pm
Does she even have the authority to order that? The search warrant was granted / ordered by the Reinhart court.
Reinhart is a magistrate who works for S.D. Fla. (I always wondered why the DOJ didn't try to relate this case to the search warrant, to take it away from Cannon.)
Still, it would be a rather shocking move; I doubt it'll happen.
It would be pretty cheeky for a judge to do something like order the release of the unredacted search warrant with a circuit court order to vacate and dismiss hanging over her head.
Does she even have the authority to order that? The search warrant was granted / ordered by the Reinhart court.
I think probably, sort of, yes, if we assume that we're in a topsy-turvy world in which she properly exercised jurisdiction in the first place and that she can exercise power under Rule 41 by deeming Trump's failure to actually file a Rule 41 motion a ministerial act that she can excuse. Cf. In re Search Warrants Issued on April 26, 2004, 353 F. Supp. 2d 584, 591 (D. Md. 2004) (recognizing a “Fourth Amendment right to inspect the probable cause affidavit”) [caution: case cited by Trump's lawyers; I glanced at the case but didn't check their research].
Also, a district judge "out-ranks" a magistrate judge. That doesn't give a district court judge free-range license to undo orders made in a magistrate judge's cases to which the district judge isn't also assigned. But in this instance it seems plausible that, if Judge Cannon has jurisdiction based on Trump's motion for judicial supervision and other relief, she has "taken seisin" of all matters relating to the search warrant.
Of course, the 11th Circuit has ruled that Judge Cannon does not have jurisdiction to do anything at all. The 11th Circuit also tartly reminded Trump (and Cannon) of the deference owed to the magistrate judge's rulings. ("So Plaintiff’s suggestion that 'whether the Government is entitled to retain some or all the seized documents has not been determined by any court' is incorrect. The magistrate judge decided that issue when approving the warrant.")
RTH10260 wrote: ↑Sat Dec 03, 2022 7:20 pm
Further I believe the DOJ can appeal the order, even when formally it were to be an unappealable intermediary decision, it buys time until the appeal court needs to say "sorry, no". By then issue may be moot cause the dismissal has been effected.
Only if Judge Cannon's order unsealing the warrant allowed time for appeal. Since issuing any such an order would be an open defiance of the 11th Circuit, it's easy to imagine that the order would direct immediate action by the clerk.
bob wrote: ↑Sat Dec 03, 2022 8:13 pm
Reinhart is a magistrate who works for S.D. Fla. (I always wondered why the DOJ didn't try to relate this case to the search warrant, to take it away from Cannon.)
I wondered about that too. At the time I think I satisfied myself that a motion under the penumbra of Rule 41 and equitable/anomalous jurisdiction can't be made to a magistrate judge, so that SDFL's related case rules wouldn't apply to transfer the case to Judge Reinhart.
chancery wrote: ↑Sat Dec 03, 2022 9:37 pmAt time I think I satisfied myself that a motion under the penumbra of Rule 41 and equitable/anomalous jurisdiction can't be made to a magistrate judge, so that SDFL's related case rules wouldn't apply to transfer the case to Judge Reinhart.
That makes sense. Magistrates tend to have a judge they work for/report to, so I see could a play to rope in this magistrate's supervisor. But I also could see the DOJ deciding the play wasn't worth the effort, for both legal and policy/publicity reasons.
chancery wrote: ↑Sat Dec 03, 2022 9:37 pm
… she has "taken seisin" of all matters relating to the search warrant.
I spent part of lockdown reading through some Maitland so I recognize the word. It’s not common in current English usage. Its normal sense in feudal times was to take possession of an estate by symbolically harvesting the fruits of the land — “This is now mine, I claim it as my own!” It more generically just means to take possession of something.
But it isn’t just, “I’ll go ahead and add this to my work pile,” it has a bit more feudal aggression to it. At least to my ears.
RTH10260 wrote: ↑Sat Dec 03, 2022 7:20 pm
Does she even have the authority to order that? The search warrant was granted / ordered by the Reinhart court.
Reinhart is a magistrate who works for S.D. Fla. (I always wondered why the DOJ didn't try to relate this case to the search warrant, to take it away from Cannon.)
Still, it would be a rather shocking move; I doubt it'll happen.
Yes, it was a tongue-in-cheek suggestion, since we're still stuck in some sort of wormhole where the usual rules are so far out the window, they're not in Kansas anymore.
If she orders the immediate release of the unsealed warrant, I'll bet the DOJ would anticipate that move and will be standing by with an immediate emergency appeal to the 11th.
chancery wrote: ↑Sat Dec 03, 2022 6:18 pm
Edit: there's been a good deal of chatter about the desirability of seeking Judge Cannon's impeachment, all of it baloney, even apart from the political impossibility.
However, a stunt like releasing the search warrant under the present circumstances would IMO fall in the category of misbehavior that would make impeachment appropriate, although it would take more than a single instance to make a case.
There is a remedy short of impeachment if a judge truly goes off the rails: the Judicial Conduct and Disability Act of 1980. Judicial Conduct and Disability Act of 1980 (FAQ page)
The Eleventh Circuit would be the body that investigated whether a violation had occurred. I think if the SWA were to be released unredacted, without the opportunity for the government to seek a stay (especially without further briefing or an opinion on the issues), there would be a reasonable argument that this constituted "engaging in partisan political activity." While proceedings under the Act cannot lead to the loss of the judgeship (only impeachment can do that), it can lead to censure, reprimand, and/or a bar on being assigned new cases for a fixed period. In short, "it goes on your permanent record."
chancery wrote: ↑Sat Dec 03, 2022 10:15 pm
More or less.
"Seised of jurisdiction" is an old-fashioned phrase meaning that a court has determined that it may properly rule on a matter.
Its use these days can usually be termed affected <cough>, but I agree that there is an undertone of aggression.
Edit: corrected spelling. Also note that seisin is not the same thing as ownership. It means roughly possession plus use.
To paraphrase the Zombies, in taking Trump's Rule 41/equitable intervention case, Judge Cannon apparently believed it was The Time of the Seisin. The Eleventh Circuit responded, Tell Her No. The ball now is back in Judge Cannon's court. Only time will tell if She's Not There for Trump. This foray through the SDFL has been quite the Odyssey (and Oracle).
You went deeper in the catalogue that I dared. I am waiting to see who ends up Care of Cell 44. (Oddly, for years I thought that song was by The Monkees.)
I don't think like a lawyer or a judge. Probably a good thing.
Anyhoo, if'n I were the Clerk of the So. Dist. of Fla., I'd think long and hard before I just opened up the safe and walked away while I went to lunch. The Clerk has to be aware of all the kerfuffle with Cannon v. Reinhardt and the urinating contest between Trump and the DOJ and the Eleventh Circuit's order to dismiss/vacate/vaporize .
My rule is that a person cannot serve two masters. The Clerk is responsible for all the administrative goings-on within the Court, amirite? On the one hand, a search warrant was lawfully obtained and issued by a magistrate judge. This leads to a spurious civil suit filed elsewhere, but within the same district. This civil matter is effectively tossed by an appellate court with specific instructions as to what to do. On the other hand, if Cannon were to grant a request to release the search warrant in full, then the Clerk is torn between following a direct order by a judge or knowing that this particular judge's order is patently in defiance of the appellate court.
If lawyers and judges can hire outside counsel to determine what to do or what not to do in dicey situations, it seems sensible to me for the Clerk to request legal advice concerning the performance of the Clerk's duties. Certainly a Clerk of the Court can file some sort of motion or other document that would not be in contempt in order to sort out whether or not to turn over the goods.
keith wrote: ↑Sun Dec 04, 2022 5:53 pm
ETA: Props to jcolvin for sticking to just the Zombies. I went shotgun approach which is much easier.
Thanks. When I went to get a latte yesterday, I was listening to Little Steven’s Underground Garage on Sirius XM. Steven was introducing Time of the Season. He noted that the band had broken up after recording Odyssey and Oracle, and that it was very unusual for a record company to promote singles from a defunct act. Al Kooper, then a studio exec, apparently pushed for the single’s release. It became the Zombies highest charting single.
Minute order. No explantation given. But we can infer that a terse minute order is all judge Cannon could handle in between gigantic portions of humble pie and crow.
Gupwalla wrote: ↑Mon Dec 05, 2022 4:51 pm
Minute order. No explantation given. But we can infer that a terse minute order is all judge Cannon could handle in between gigantic portions of humble pie and crow.
She saw the handwriting on the wall that the days of her Clown Show were numbered.
.
