Members Only | September 29, 2022 | Reading Time: 2 minutes

Three-judge panel says Donald Trump can’t sue his way out of a criminal investigation

Appeals court slams Trump-appointed judge for abuse.

Screenshot 2022-09-28 8.30.40 PM

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The government has resumed its criminal probe into how some of our nation’s most closely-guarded secrets ended up in former president Donald Trump’s desk and pool closet, thanks to a forceful ruling by the 11th Circuit last Wednesday. This is a huge victory for the people, a resounding rebuke to the lawlessness of Judge Aileen Cannon.

The three-judge panel eviscerated Judge Aileen Cannon’s flimsy justifications for barring investigators from using the documents until a court-appointed special master could review them. 

Team Trump may have the option to appeal to the full 11th Circuit, or even to the Supreme Court, but given how the panel chewed out Judge Cannon, a wise man would think carefully about his chances of success with further appeals. Then again, this is Trump we’re talking about. 

The first question on the panel’s mind was jurisdiction. Why should Cannon decide the fate of the property seized from Mar-a-Lago rather than the judge who approved the search warrant? 

Cannon claimed that Trump’s case belonged in her courtroom because his lawyers had filed a Rule 41(g) motion to get his property back. Except, he hadn’t. The panel was not impressed.

You can’t normally sue your way out of a criminal investigation. Only people who have suffered extraordinary violations of their constitutional rights can sue to get evidence back before they’ve even been indicted. The Mar-a-Lago evidence was seized during a legal search, which means Trump’s rights weren’t violated at all. 

Yet Judge Cannon took it upon herself to restrict the government’s access to evidence in a criminal case, even though she admitted that Trump had suffered no gross violation of his rights. 

That’s “reason enough to conclude that the district court abused its discretion,” according to the 11th Circuit. 

Donald Trump neither owns nor needs the classified documents taken from his home, which is all the more reason why Judge Cannon was wrong to insert herself into a criminal investigation on his behalf. By law, classified information belongs to the United States and access is limited to those with a legitimate need-to-know. 

Former president Trump lacks need-to-know. 


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The panel scoffed at Trump’s claims that he would be irreparably harmed if he didn’t get the documents back. Sure, it sucks to have the government build a criminal case against you, but that’s not harm that qualifies for extraordinary relief through the courts. 

In the panel’s opinion, it’s the US that could suffer irreparable harm if this investigation is delayed unnecessarily. The judges agreed with the government that allowing Trump’s lawyers and the special master to inspect these highly classified documents could cause irreparable harm. Every person who gets read in unnecessarily increases the risk that a critical national security secret will be exposed. 

Cannon took the highly unusual step of revising her original order, eliminating restrictions on classified documents. Team Trump may have the option to appeal to the full 11th Circuit, or even to the Supreme Court, but given how the panel chewed out Judge Cannon, a wise man would think carefully about his chances of success with further appeals. Then again, this is Trump we’re talking about. 


Lindsay Beyerstein covers legal affairs, health care and politics for the Editorial Board. An award-winning documentary filmmaker, she’s a judge for the Sidney Hillman Foundation. Find her @beyerstein.

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