EXCERPTS FROM UNITED STATES’ RESPONSE TO MOTION FOR JUDICIAL OVERSIGHT AND ADDITIONAL RELIEF
DONALD J. TRUMP, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
by Juan Antonio Gonzalez, UNITED STATES ATTORNEY and Jay I. Bratt, CHIEF, Counterintelligence and Export Control Section, National Security Division
08/31/2022
The legal issues presented, and the relief requested in the filings, are narrow, notwithstanding the wide-ranging meritless accusations leveled against the government in the motion….
As an initial matter, the former President lacks standing to seek judicial relief or oversight as to Presidential records because those records do not belong to him. The Presidential Records Act makes clear that “[t]he United States” has “complete ownership, possession, and control” of them. 44 U.S.C. § 2202. Furthermore, this Court lacks jurisdiction to adjudicate Plaintiff’s Fourth Amendment challenges to the validity of the search warrant and his arguments for returning or suppressing the materials seized….
Even if the Court had jurisdiction to entertain Plaintiff’s claims, appointment of a special master is unnecessary and would significantly harm important governmental interests, including national security interests….Appointment of a special master to review materials potentially subject to claims of executive privilege would be particularly inappropriate because binding Supreme Court precedent forecloses Plaintiff’s argument that review of these materials by personnel within the Executive Branch raises any such privilege concerns. Furthermore, appointment of a special master would impede the government’s ongoing criminal investigation and—if the special master were tasked with reviewing classified documents—would impede the Intelligence Community from conducting its ongoing review of the national security risk that improper storage of these highly sensitive materials may have caused and from identifying measures to rectify or mitigate any damage that improper storage caused….
Mindful that the Court ruling on the present motion is not the same Court that authorized the search warrant from which this civil action results, the government provides below a detailed recitation of the relevant facts, many of which are provided to correct the incomplete and inaccurate narrative set forth in Plaintiff’s filings….
Throughout 2021, the United States National Archives and Records Administration (“NARA”) had ongoing communications with representatives of former President Trump in which it sought the transfer of what it perceived were missing records from his Administration….These communications ultimately resulted in the provision of fifteen boxes …When producing the Fifteen Boxes, the former President never asserted executive privilege over any of the documents nor claimed that any of the documents in the boxes containing classification markings had been declassified. …
“In its initial review of materials within those boxes, NARA identified items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials. NARA informed the Department of Justice about that discovery.”… Of most significant concern was that highly classified records were unfoldered, intermixed with other records, and otherwise unproperly [sic] identified.”… The NARA Referral was made on two bases: evidence that classified records had been stored at the Premises until mid-January 2022, and evidence that certain pages of Presidential records had been torn up….
DOJ sought access to the Fifteen Boxes in part “so that the FBI and others in the Intelligence Community could examine them.” … a representative of the former President requested an extension of the production date to April 29. See id….
counsel for the former President requested an additional extension before the materials were provided to the FBI and stated that in the event that another extension was not granted, the letter should be construed as “‘a protective assertion of executive privilege made by counsel for the former President.’” Id. In its May 10 response, NARA rejected both of counsel’s requests. First, NARA noted that significant time—four weeks—had elapsed since NARA first informed counsel of its intent to provide the documents to the FBI. Id. Second, NARA stated that the former President could not assert executive privilege to prevent others within the Executive Branch from reviewing the documents, calling that decision “not a close one.” Id. at 3. NARA rejected on the same basis counsel’s “‘protective assertion’” of privilege…. Although the former President could have taken legal action prior to May 12 to attempt to block the FBI’s access to the documents in the Fifteen Boxes, he did not do so….
Through its investigation,3 the FBI developed evidence indicating that even after the Fifteen Boxes were provided to NARA, dozens of additional boxes remained at the Premises that were also likely to contain classified information. Accordingly, DOJ obtained a grand jury subpoena, for which the former President’s counsel accepted service on May 11, 2022. … DOJ also sent the former President’s counsel a letter that suggested they could comply by “providing any responsive documents to the FBI at the place of their location” and by providing from the custodian a “sworn certification that the documents represent all responsive records.”…
The subpoena’s return date was May 24, 2022. Counsel sought an extension for complying. After initially denying the request, the government offered counsel an extension for complying with the subpoena until June 7, 2022. Counsel for the former President contacted DOJ on the evening of June 2, 2022, and requested that FBI agents meet him the following day to pick up responsive documents….
On June 3, 2022, three FBI agents and a DOJ attorney arrived at the Premises to accept receipt of the materials. In addition to counsel for the former President, another individual was also present as the custodian of records for the former President’s post-presidential office. When producing the documents, neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege. Instead, counsel handled them in a manner that suggested counsel believed that the documents were classified: the production included a single Redweld envelope, double-wrapped in tape, containing the documents. The individual present as the custodian of records produced and provided a signed certification letter, which stated in part the following:
Based upon the information that has been provided to me, I am authorized to certify, on behalf of the Office of Donald J. Trump, the following: a. A diligent search was conducted of the boxes that were moved from the White House to Florida; b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena; c. Any and all responsive documents accompany this certification; and d. No copy, written notation, or reproduction of any kind was retained as to any responsive document….
After producing the Redweld, counsel for the former President represented that all the records that had come from the White House were stored in one location—a storage room at the Premises (hereinafter, the “Storage Room”), and the boxes of records in the Storage Room were “the remaining repository” of records from the White House. Counsel further represented that there were no other records stored in any private office space or other location at the Premises and that all available boxes were searched…. the former President’s counsel explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained.
Once in a secure government setting, the FBI conducted a preliminary review of the documents contained in the Redweld envelope. That preliminary document review revealed the following: 38 unique documents bearing classification markings, including 5 documents marked as CONFIDENTIAL, 16 documents marked as SECRET, and 17 documents marked as TOP SECRET. Further, the FBI agents observed markings reflecting sensitive compartments and dissemination controls. …
Through further investigation, the FBI uncovered multiple sources of evidence indicating that the response to the May 11 grand jury subpoena was incomplete and that classified documents remained at the Premises, notwithstanding the sworn certification made to the government on June 3. In particular, the government developed evidence that a search limited to the Storage Room would not have uncovered all the classified documents at the Premises. The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation. …
on August 5, 2022, the government applied to Magistrate Judge Reinhart for a search and seizure warrant… On the same date, Judge Reinhart found that probable cause existed that evidence of each of the crimes would be found at the Premises, and he authorized the search warrant. MJ Docket, D.E. 17 at 2.
Pursuant to the search warrant, the government was permitted to search the “‘45 Office’ [the former President’s office space at the Premises], all storage rooms, and all other rooms or areas within the premises used or available to be used by [the former President] and his staff and in which boxes or documents could be stored, including all structures or buildings on the estate” but not “areas currently (i.e., at the time of the search) being occupied, rented, or used by third parties…Judge Reinhart authorized the government to seize any evidence of the applicable crimes. Id. at 2, 4. Importantly, the government was authorized by the warrant to seize “[a]ny physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes” and any government or Presidential records created during the former President’s Administration….
the government seized thirty-three items of evidence, mostly boxes (hereinafter, the “Seized Evidence”), falling within the scope of Attachment B to the search warrant because they contained documents with classification markings or what otherwise appeared to be government records. Three classified documents that were not located in boxes, but rather were located in the desks in the “45 Office,” were also seized….
in all, over one hundred unique documents with classification markings—that is, more than twice the amount produced on June 3, 2022, in response to the grand jury subpoena—were seized. Certain of the documents had colored cover sheets indicating their classification status. See, e.g., Attachment F (redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the “45 office”).
The classification levels ranged from CONFIDENTIAL to TOP SECRET information, and certain documents included additional sensitive compartments that signify very limited distribution. In some instances, even the FBI counterintelligence personnel and DOJ attorneys conducting the review required additional clearances before they were permitted to review certain documents.
Notwithstanding counsel’s representation on June 3, 2022, that materials from the White House were only located in the Storage Room, classified documents were found in both the Storage Room and in the former President’s office. Moreover, the search cast serious doubt on the claim in the certification (and now in the Motion) that there had been “a diligent search” for records responsive to the grand jury subpoena. In the storage room alone, FBI agents found 76 documents bearing classification markings…. That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the “diligent search” that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter….
The privilege review team identified only a limited subset of potentially attorney-client privileged documents….
Plaintiff asks for a special master and related relief in anticipation of moving for the return of property under Criminal Rule 41(g)….
But, “[ i]n order for an owner of property to invoke Rule 41(g), he must show that he had a possessory interest in the property seized by the government.”…
Plaintiff has no property interest in any Presidential records (including classified records) seized from the Premises….44 U.S.C. § 2202…
Neither of Plaintiff’s filings addresses or even cites that statutory provision. …
Because these records do not belong to Plaintiff, Rule 41(g) gives him no right to have them returned. And because Plaintiff has no such right, this Court should not appoint a special master to review Presidential records for the purpose of entertaining potential claims of executive privilege. At most, Plaintiff can seek return of his personal property….
Plaintiff asks this Court to order “the Government to return any item seized pursuant to the Search Warrant that was not within the scope of the Search Warrant.”… Although Plaintiff does not specify what material he contends was seized in excess of the search warrant, certain personal effects were commingled with classified material in the Seized Evidence, and they remain in the custody of the United States because of their evidentiary value. Personal effects without evidentiary value will be returned.
Nonetheless, contrary to Plaintiff’s contention, personal effects in these circumstances are not subject to return under Criminal Rule 41(g)… Evidence of commingling personal effects with documents bearing classification markings is relevant evidence of the statutory offenses under investigation….
they were commingled with documents bearing classification markings that were indisputably within the scope of the search warrant….
Although the former President may have a property interest in his personal effects, he cannot demonstrate callous disregard of the Fourth Amendment considering the patient exhaustion of less-intrusive methods to obtain return of documents with classification markings from the Premises and FBI Special Agents’ scrupulous adherence to the terms of the search warrant, which permitted them to seize the entire “containers/boxes” in which the documents with classification markings were stored, as well as other containers/boxes stored collectively. Moreover, the former President has not established irreparable injury in the deprivation of his personal property….
the former President has failed to establish that he would suffer any injury absent an injunction—let alone an irreparable injury. First, any Presidential records seized pursuant to the search warrant belong to the United States, not to the former President. 44 U.S.C. § 2202. As such, the former President cannot claim that he is personally injured by a review of those records by personnel within the Executive Branch….Any possible injury is thus, at most, an incremental and theoretical “harm” based on further review of materials that the Case Team has already reviewed and inventoried.
Finally, the fact that the former President filed this motion two weeks after the search occurred—and only just effected service on the United States on August 29—“militates against a finding of irreparable harm.”… a party’s failure to act with speed or urgency in moving for a preliminary injunction necessarily undermines a finding of irreparable harm.”… Typically, parties who seek the appointment of a special master following the execution of a search warrant make such requests immediately. … The need for promptness when a party seeks appointment of a special master is obvious: the government may begin reviewing materials as soon as they are seized, and a delay of even two weeks may well mean—as it does here—that the government has reviewed all of the seized materials by the time relief is sought….
DOJ is in the midst of an ongoing criminal investigation pertaining to potential violations of the Espionage Act, 18 U.S.C. § 793(e), as well as obstruction of justice, 18 U.S.C. § 1519, and unlawful concealment or removal of government records, 18 U.S.C. § 2071. The Intelligence Community is also reviewing the seized documents to assess the potential risk to national security that would result if these materials were disclosed while they were unlawfully stored at the Premises. An injunction barring any further review of these documents would therefore not only hinder an ongoing criminal investigation, but would also thwart entirely an ongoing and sensitive review of risks to national security. For the same reasons, an injunction would plainly be “adverse to the public interest.” …
Appointment of a special master to review potential privilege claims… would do little or nothing to protect any legitimate interests that Plaintiff may have while impeding the government’s ongoing criminal investigation, as well as the Intelligence Community’s review of potential risks to national security that may have resulted from the improper storage of the seized materials….
The former President asserts (D.E. 1 at 14-16) that review by a special master is necessary because the records at issue are presumptively subject to executive privilege. But even if the former President had actually asserted executive privilege with regard to any of the seized documents (which he has not), and even if he had statutory authority to do so (which is not established), such an assertion would fail here because this case involves the recovery and review of executive records by executive officials performing core executive functions. The Supreme Court has made clear that a former President may not successfully assert executive privilege “against the very Executive Branch in whose name the privilege is invoked.”… vital Executive Branch needs far outweigh any limited burden on the general interests served by the executive privilege…
Even if the former President had attempted to assert executive privilege (which he has not done),12 that assertion would not justify any restrictions on Executive Branch access to the documents here…. the former President cites no case—and the government is aware of none—in which executive privilege has been successfully invoked to prohibit the sharing of documents within the Executive Branch.
To the contrary, in what appears to be the only case in which such an assertion has ever been made, Nixon v. GSA, the Supreme Court rejected former President Nixon’s assertion that a statute requiring the General Services Administration13 to take custody of and review recordings and documents created during his presidency violated either the separation of powers or executive privilege….
First, Plaintiff did not convey the seized materials to NARA as required by the PRA. As such, he cannot now maintain that he has a statutory right to make privilege assertions pursuant to that law. Second, even if the PRA process were available to Plaintiff, it does not follow that he could successfully assert executive privilege against the Executive Branch. To the contrary, the PRA makes clear that it does not expand the scope of executive privilege….
These principles resolve the former President’s request for a special master. As in Nixon v. GSA, this case involves potential assertions of executive privilege by a former President against the “Executive Branch in whose name the privilege is invoked.” 433 U.S. at 447- 48. This case does not implicate any disclosure outside the Executive Branch, and the review of the records at issue is being conducted “by personnel in the Executive Branch sensitive to executive concerns.”…
even in a case where records might be withheld from the public pursuant to a valid assertion of privilege, there would not be a basis for withholding them from review by the Executive Branch itself in pursuit of its core executive functions….
In United States v. Nixon, the Supreme Court held that the need for evidence in a criminal trial outweighed even a sitting President’s assertion of executive privilege over presidential communications. The Court explained that, although the “[t]he interest in preserving confidentiality is weighty indeed and entitled to great respect,” 418 U.S. at 712, assertions of the privilege must also “be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that the twofold aim (of criminal justice) is that guilt shall not escape or innocence suffer,”…
“[t]he generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”…
The Executive Branch’s review here also serves another compelling interest that was not at issue in Nixon: The records at issue include sensitive and highly classified documents…. This Court should be particularly reluctant to order disclosure of highly classified materials to a special master absent an especially strong showing that such a step is necessary….
to the extent the former President’s arguments rest on a claim that he has been deprived of his rights under the PRA to assert potential privilege claims, see D.E. 1 at 12, the former President forfeited the ability to rely on the PRA by failing to provide his records to NARA, as the law requires. Had the seized records been returned to NARA—upon the former President’s departure from office, or during the many months afterward in which NARA sought return of the missing records—Plaintiff could have at least tendered a claim of executive privilege to the Archivist with regard to any materials sought by DOJ…. The government’s seizure of these records through use of a search warrant is a direct result of Plaintiff’s own conduct…
the government has an urgent interest in continuing its review of these materials, both for purposes of its criminal investigation and to assess potential national security risks caused by improper storage of classified records. Appointment of a special master would undoubtedly delay both processes—including because a special master would likely need to obtain a security clearance and specific authorization from relevant entities within the Intelligence Community to review particularly sensitive materials….
executive privilege exists not “for the benefit of the President as an individual, but for the benefit of the Republic,”…
“[I]t is well-established that filter teams—also called ‘taint teams’—are routinely employed to conduct privilege reviews.”… Tellingly, the cases relied upon by the former President that have employed special masters rather than filter teams invariably involve the search of law offices…. The former President analogizes searches of law offices to the present search… searches of law offices and the instant search do not at all involve similar privilege concerns….
courts have cited the complexities posed when materials are seized from attorneys involving multiple clients…. ‘[m]ost of the cases cited by the movants concern the searches of criminal defense attorneys or law firms that performed some criminal defense work’… as there was a risk that the members of the filter team would at some point be involved in the criminal investigation and/or prosecution of other clients who were not the subject of the underlying investigation.”)… “under certain exceptional circumstances, the appointment of a special master to review materials seized from an attorney may be appropriate. Those circumstances may exist where the search involves the files of a criminal defense attorney with cases adverse to the United States Attorney’s Office . . . .”)… “responsiveness and privilege issues raised” in the search of a law firm office as “exceptional”).
The attorney-client privilege issues in this case present none of the complexities associated with a search of a law firm…. Moreover, as noted above, the volume of documents is small, and the government’s filter team has already completed its review of them. …
the Court should not appoint a special master. If the Court decides to do so, as directed by the Court, the government proposes the following conditions….
• The special master’s duties should be limited to assessing Plaintiff’s claims of attorney-client privilege over the set of potentially privileged documents identified by the Privilege Review Team…. there is no precedent or basis for appointing a special master to review documents for executive privilege and barring current Executive Branch law enforcement officials or officers from continuing to access that material, including to assess national security risks.
• If the special master must be permitted to review classified documents, in order to avoid unnecessary delay, the special master should already possess a Top Secret/SCI security clearance….
• Any documents that reflect the special master’s rulings, including orders, privilege logs, or other records, should be preserved and filed under seal…
• because the central disputed issues concern privilege, an issue that courts traditionally decide, there is no need to apply any deferential standard of review to the special master’s determinations….
• final decisions on all disputed documents to be made by September 30, 2022….
the Court should deny Plaintiff’s Motion for Judicial Oversight…
***
NATIONAL ARCHIVES
Archivist of the United States
DAVID S. FERRIERO…
The Honorable Carolyn B. Maloney
Chairwoman
Committee on Oversight and Reform
U.S. House of Representatives…
you asked a number of questions relating to "the 15 boxes of presidential records that the National Archives and Records Administration (NARA) recently recovered from former President Trump's Mar-a-Lago residence." Please see our responses…
5. Is NARA aware of any additional presidential records from the Trump Administration that may be missing or not yet in NARA's possession?
Answer: NARA has identified certain social media records that were not captured and preserved by the Trump Administration. NARA has also learned that some White House staff conducted official business using non-official electronic messaging accounts that were not copied or forwarded into their official electronic messaging accounts, as required by section 2209 of the PRA. NARA has already obtained or is in the process of obtaining some of those records.
6. What efforts has NARA taken, and is NARA taking, to ensure that any additional records that have not been turned over to NARA are not lost or destroyed?
Answer: NARA has asked the representatives of former President Trump to continue to search for any additional Presidential records that have not been transferred to NARA, as required by the Presidential Records Act….
8. Is NARA aware of presidential records that President Trump destroyed or attempted to destroy without the approval of NARA? If so, please provide a detailed description of such records, the actions taken by President Trump to destroy or attempt to destroy them, and any actions NARA has taken to recover or preserve these documents.
Answer: In June 2018, NARA learned from a press report in Politico that textual Presidential records were being torn up by former President Trump and that White House staff were attempting to tape them back together. NARA sent a letter to the Deputy Counsel to the President asking for information about the extent of the problem and how it is being addressed. The White House Counsel's Office indicated that they would address the matter. After the end of the Trump Administration, NARA learned that additional paper records that had been torn up by former President Trump were included in the records transferred to us. Although White House staff during the Trump Administration recovered and taped together some of the torn-up records, a number of other torn-up records that were transferred had not been reconstructed by the White House….
***
Notes:
1 Plaintiff also sought a more detailed receipt for the property seized during the August 8, 2022 execution of the search warrant. … The Court ordered the government to file under seal “[a] more detailed Receipt for Property specifying all property seized pursuant to the search warrant.” D.E. 29 at 2. The government filed today under seal, in accordance with the Court’s order, the more detailed receipt. Although the receipt of property already provided to Plaintiff at the time of the search…
the government cannot publicly describe the sources of its evidence, particularly while the investigation remains ongoing. As Judge Reinhart concluded, revealing this type of information could “impede the ongoing investigation through obstruction of justice and witness intimidation or retaliation.”…
5 Plaintiff states that “[t]here is no criminal enforcement mechanism or penalty” in the Presidential Records Act, and then suggests that DOJ may have “recognize[d] that deficiency, and then decide[d] to re-categorize this case as relating to national security materials[ ]simply to manufacture a basis to seek a search warrant” and may have “mischaracterize[d] the types of documents it sought.” D.E. 1 at 12. These accusations are belied by the statutes cited in the government’s search warrant, which make clear that this investigation is not simply about efforts to recover improperly retained Presidential records. Moreover, 18 U.S.C. § 2071 criminalizes the concealment or removal of government records, including Presidential records.
6 Plaintiff repeatedly claims that his passports were outside the scope of the warrant and improperly seized, and that the government, in returning them, has admitted as much. See D.E. 1 at 2 & n.2; D.E. 28 at 3, 8, 9. These claims are incorrect. Consistent with Attachment B to the search warrant, the government seized the contents of a desk drawer that contained classified documents and governmental records commingled with other documents. The other documents included two official passports, one of which was expired, and one personal passport, which was expired. The location of the passports is relevant evidence in an investigation of unauthorized retention and mishandling of national defense information; nonetheless, the government decided to return those passports in its discretion….
8 Plaintiff’s motion cites Federal Rule of Civil Procedure 26(b)(5) and (c)(1) and this Court’s Local Rule 26.1(g) in support of this request. D.E. 1 at 15. These provisions relate to privilege claims during pre-trial discovery in civil cases, not privilege claims regarding materials seized pursuant to a search warrant. The former President’s request is more properly construed as a request for a preliminary injunction under Federal Rule of Civil Procedure 65….
12 Plaintiff’s motion does not purport to include any assertion of executive privilege by the former President; instead, it refers (at 15) to “potentially privileged materials” and appears to suggest that a special master should determine in the first instance whether the privilege applies. Plaintiff's assertion that because the documents “were created during his term as President,” they are “‘presumptively privileged’ until proven otherwise,” D.E. 1 at 15 (quoting United States v. Nixon, 418 U.S. 683, 713 (1974)), is therefore incorrect. That presumption arises only “[u]pon receiving a claim of privilege from the Chief Executive.” United States v. Nixon, 418 U.S. at 713. Additionally, a former President can invoke executive privilege only with respect to communications made “‘in performance of [the President's] responsibilities.’” Nixon v. GSA, 433 U.S. at 449 (quoting United States v. Nixon, 418 U.S. at 711)….
14 Plaintiff also cites Armstrong v. Bush, 924 F.2d 282, 290 (D.C. Cir. 1991) for the proposition that he has “virtually complete control” over Presidential records during his term of office, see D.E. 1 at 12, but Armstrong is wholly inapposite. The court in that case was discussing control of Presidential records by a sitting President, not a former President. See id. As the sources relied upon by Armstrong make clear, that control terminates at the end of the President’s time in office…. the PRA provides for “presidential control of records creation, management, and disposal during the President’s term of office”…
16 Notably, however, the former President never interposed any executive privilege objection to returning the set of classified documents that was provided by his custodian of records on June 3.
17 The former President also cites to a Justice Manual provision, “9-13.420 § F,” for the proposition that prosecutors must consider “[w]ho will conduct the review, i.e., a privilege team, a judicial officer, or a special master.” He fails to mention that this provision is under a provision that is specific to searches of attorney offices; Section 9-13.420 is titled “Searches of Premises of Subject Attorneys.” This provision reinforces that searches of attorney offices are uniquely fraught and may require different procedures than the searches of non-attorney premises such as this one.
Trump lashes out at Gov. Doug Ducey following certification
Re: Trump lashes out at Gov. Doug Ducey following certificat
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Re: Trump lashes out at Gov. Doug Ducey following certificat
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A Ruling Untethered to the Law: By appointing a special master to review the Mar-a-Lago documents, Judge Aileen Cannon gave Trump the special treatment he asked for—and undermined the values of her profession.
by Andrew Weissmann
The Atlantic
SEPTEMBER 6, 2022, 1:57 PM ET
About the author: Andrew Weissmann is a professor of practice at New York University School of Law, the former lead prosecutor in the Special Counsel’s Office, and the former general counsel of the FBI. He is the author of Where Law Ends: Inside the Mueller Investigation.
One of the most dispiriting aspects of the decision yesterday by Federal District Court Judge Aileen Cannon—which granted former President Donald Trump’s request to appoint a special master to review the evidence seized from Mar-a-Lago by the FBI—is that it undermines the work of all the other judges who have tried to adhere to their oath to “administer justice without respect to persons, and do equal right to the poor and to the rich, and … faithfully and impartially discharge and perform all the duties incumbent” on the office. Her ruling is untethered to the law and presents a skewed recitation of the facts. Her actions make the question “Who appointed the judge?” a sadly relevant one in evaluating a judicial opinion.
Federal courts, with the notable exception of the Supreme Court, have generally fared well in providing a strong check and balance on attempted executive-branch abuses by Donald Trump. His efforts to have the courts further his bid to overthrow the will of the people in the last election have been rejected by judges nominated to the bench by both parties. The rule of law was on full display; courts around the nation repeatedly revealed a forum where facts, legal precedent, and logical reasoning have pride of place.
Cannon’s opinion, by contrast, is so deeply flawed that it’s hard to know where to begin a critique. Let’s start with the unequal application of the law. Although Trump wallows in feigned claims of persecution, in fact he has been privileged by the Justice Department, and now Cannon, in a manner unheard of for any other defendant. Every defendant would relish the opportunity to delay a criminal investigation by having a court enjoin the government from investigation, but that never happens. The time-honored recourse for someone aggrieved by a search is not to have an unelected judge unilaterally decide to enjoin the constitutionally delegated power of the executive branch to investigate and prosecute. The defense remedy is in a post-indictment motion to suppress evidence from a search.
Cannon addresses the departure from normal practice by inventing a new right for the former president, on the grounds that a post-indictment remedy would be insufficient for him to reclaim his good name. Leaving aside the question of whether her observation about the irreparable consequences of a delay in when he could assert a claim is factually supported, there are at least two other issues with this ruling. First, it is hard to see how her conclusion about harm would or should be cabined to Trump: Why would others under investigation not have the same claim? Is the extra protection of a special master—and the delay it entails—applicable to all public figures? Would we now have a new rule limiting investigations of government officials like Bill Clinton, as well as leaders of large corporations like Enron and Volkswagen and start-ups like Theranos? And if so, how is a rule that offers special privileges to the most advantaged members of our society consistent with providing equal justice for all? Cannon does not deal with any of this. Her ruling, in this respect, resembles the decision of former Attorney General Bill Barr to extend benefits to Roger Stone and Michael Flynn that were simultaneously denied to other defendants. The law, it seems, is simply different for Trump and his close allies.
The second problem with this aspect of Cannon’s decision is how completely unnecessary a special master is in this case. A review of potential attorney-client communications applies, at most, to a small subset of documents (no more than 500 or so pages, the filings suggest). These communications would have to be with Trump’s private counsel because he has no attorney-client privilege with the White House Counsel’s Office, which represents the office of the president and not him personally. And it is highly unlikely that any such communications relate to the issue of Trump’s theft and retention of government documents. But even assuming there is a risk that attorney-client communications might be relevant to the investigation, the Department of Justice has a tried-and-true method for dealing with it that doesn’t require a special master.
This issue surfaced during Special Counsel Robert Mueller’s investigation, which I worked on. When the special counsel received court authorization to search Paul Manafort’s Virginia home, a team of FBI agents who were not part of the special counsel’s investigation, known as a “taint team,” conducted it. That same day, as soon as the search was completed, we called Manafort’s counsel and alerted them that all of the evidence from the search would be made available to them, so that they could review and flag any materials they believed were privileged. The taint team resolved all of the flagged issues, and the process proceeded rapidly and without a hitch. Importantly, it did not require a special master, even though the volume of material (including electronic data, which the Mar-a-Lago search did not uncover) significantly outstripped the volume at issue in the Trump search. But Cannon did not seek to determine whether there were in fact any disputes between the parties about any such documents or explore with the parties the workability of a taint team.
Two other aspects of her decision are also worth noting. Cannon includes within the scope of the special master’s review documents that may raise executive privilege. She does not explain how the former president has the power to assert executive privilege; how executive privilege could restrict documents from being shared with the executive branch (which DOJ is part of); how it could apply to any documents at Mar-a-Lago that emanated from agencies like the CIA, NSA, or FBI; or why it would not be outweighed by the fact that the documents are needed in a criminal investigation (an interest that the Supreme Court found would overcome a privilege assertion by former President Richard Nixon). And even if some of the documents are covered by executive privilege, the documents would, by law, still have to go to the National Archives and not be returned to the person who absconded with them.
To understand the illogic of her decision, imagine the following scenario. I rob a bank of $1 million and stash the bags of cash in my hotel room. My gloves and wallet fall into one bag by accident. The police search my hotel room pursuant to a court-authorized warrant that permits seizure of the cash, gloves, and wallet. The judge appoints a special master to review the evidence seized, including every last dollar, even though I have no right to the return of anything that was seized. And she enjoins the criminal case for the duration.
But there is more: To support her decision, Cannon misleadingly claims that the current president has not asserted executive privilege. That is a shameful sleight of hand. If she really had a concern about President Joe Biden’s position, she need only have asked at oral argument. She did not. Instead, she engaged in a tortured reading of the evidence that the Justice Department did present to her. A letter sent by the archives to Trump’s counsel in May noted that Biden had authorized sharing the 15 boxes with the FBI and left to the archives the determination as to whether the documents taken from Mar-a-Lago were covered by executive privilege, and that, in consultation with the Justice Department’s Office of Legal Counsel, it had decided that this was not a close call and rejected the claim. Her opinion mentions the May archives letter, so we know she was aware of it, but she failed to address it or even note its executive-privilege discussion.
Finally, Cannon mercifully carves out the Office of the Director of National Intelligence’s review from the injunction she issued preventing the Department of Justice from using any of the search material in its criminal investigation. She gives no reason why the two should be treated disparately, but presumably it’s because the DNI could not indict Trump. But the work of the DNI is not easily separated from that of the Justice Department—indeed, the DNI’s letter to Congress makes clear that the two agencies are jointly conducting the review. That makes sense because the Justice Department is necessary to that review: To evaluate risks and harms, the DNI needs to know who touched and had access to the documents. It needs Mar-a-Lago visitor records, surveillance records, emails, and copier records, and it needs to interview witnesses. All of that requires grand-jury subpoenas, which also means that Department of Justice lawyers and FBI agents must be involved. And are Attorney General Merrick Garland, a prominent member of the intelligence community, and the experienced Deputy Attorney General Lisa Monaco supposed to recuse themselves from the DNI review so they can remain on the criminal investigation?
These are just a few of the factual and legal deficiencies in Cannon’s decision. It may help Trump in the short term, but by failing to apply the law evenhandedly, she has done lasting damage to the judiciary.
Andrew Weissmann is a professor of practice at New York University School of Law, the former lead prosecutor in the Special Counsel’s Office, and the former general counsel of the FBI. He is the author of Where Law Ends: Inside the Mueller Investigation.
by Andrew Weissmann
The Atlantic
SEPTEMBER 6, 2022, 1:57 PM ET
About the author: Andrew Weissmann is a professor of practice at New York University School of Law, the former lead prosecutor in the Special Counsel’s Office, and the former general counsel of the FBI. He is the author of Where Law Ends: Inside the Mueller Investigation.
One of the most dispiriting aspects of the decision yesterday by Federal District Court Judge Aileen Cannon—which granted former President Donald Trump’s request to appoint a special master to review the evidence seized from Mar-a-Lago by the FBI—is that it undermines the work of all the other judges who have tried to adhere to their oath to “administer justice without respect to persons, and do equal right to the poor and to the rich, and … faithfully and impartially discharge and perform all the duties incumbent” on the office. Her ruling is untethered to the law and presents a skewed recitation of the facts. Her actions make the question “Who appointed the judge?” a sadly relevant one in evaluating a judicial opinion.
Federal courts, with the notable exception of the Supreme Court, have generally fared well in providing a strong check and balance on attempted executive-branch abuses by Donald Trump. His efforts to have the courts further his bid to overthrow the will of the people in the last election have been rejected by judges nominated to the bench by both parties. The rule of law was on full display; courts around the nation repeatedly revealed a forum where facts, legal precedent, and logical reasoning have pride of place.
Cannon’s opinion, by contrast, is so deeply flawed that it’s hard to know where to begin a critique. Let’s start with the unequal application of the law. Although Trump wallows in feigned claims of persecution, in fact he has been privileged by the Justice Department, and now Cannon, in a manner unheard of for any other defendant. Every defendant would relish the opportunity to delay a criminal investigation by having a court enjoin the government from investigation, but that never happens. The time-honored recourse for someone aggrieved by a search is not to have an unelected judge unilaterally decide to enjoin the constitutionally delegated power of the executive branch to investigate and prosecute. The defense remedy is in a post-indictment motion to suppress evidence from a search.
Cannon addresses the departure from normal practice by inventing a new right for the former president, on the grounds that a post-indictment remedy would be insufficient for him to reclaim his good name. Leaving aside the question of whether her observation about the irreparable consequences of a delay in when he could assert a claim is factually supported, there are at least two other issues with this ruling. First, it is hard to see how her conclusion about harm would or should be cabined to Trump: Why would others under investigation not have the same claim? Is the extra protection of a special master—and the delay it entails—applicable to all public figures? Would we now have a new rule limiting investigations of government officials like Bill Clinton, as well as leaders of large corporations like Enron and Volkswagen and start-ups like Theranos? And if so, how is a rule that offers special privileges to the most advantaged members of our society consistent with providing equal justice for all? Cannon does not deal with any of this. Her ruling, in this respect, resembles the decision of former Attorney General Bill Barr to extend benefits to Roger Stone and Michael Flynn that were simultaneously denied to other defendants. The law, it seems, is simply different for Trump and his close allies.
The second problem with this aspect of Cannon’s decision is how completely unnecessary a special master is in this case. A review of potential attorney-client communications applies, at most, to a small subset of documents (no more than 500 or so pages, the filings suggest). These communications would have to be with Trump’s private counsel because he has no attorney-client privilege with the White House Counsel’s Office, which represents the office of the president and not him personally. And it is highly unlikely that any such communications relate to the issue of Trump’s theft and retention of government documents. But even assuming there is a risk that attorney-client communications might be relevant to the investigation, the Department of Justice has a tried-and-true method for dealing with it that doesn’t require a special master.
This issue surfaced during Special Counsel Robert Mueller’s investigation, which I worked on. When the special counsel received court authorization to search Paul Manafort’s Virginia home, a team of FBI agents who were not part of the special counsel’s investigation, known as a “taint team,” conducted it. That same day, as soon as the search was completed, we called Manafort’s counsel and alerted them that all of the evidence from the search would be made available to them, so that they could review and flag any materials they believed were privileged. The taint team resolved all of the flagged issues, and the process proceeded rapidly and without a hitch. Importantly, it did not require a special master, even though the volume of material (including electronic data, which the Mar-a-Lago search did not uncover) significantly outstripped the volume at issue in the Trump search. But Cannon did not seek to determine whether there were in fact any disputes between the parties about any such documents or explore with the parties the workability of a taint team.
Two other aspects of her decision are also worth noting. Cannon includes within the scope of the special master’s review documents that may raise executive privilege. She does not explain how the former president has the power to assert executive privilege; how executive privilege could restrict documents from being shared with the executive branch (which DOJ is part of); how it could apply to any documents at Mar-a-Lago that emanated from agencies like the CIA, NSA, or FBI; or why it would not be outweighed by the fact that the documents are needed in a criminal investigation (an interest that the Supreme Court found would overcome a privilege assertion by former President Richard Nixon). And even if some of the documents are covered by executive privilege, the documents would, by law, still have to go to the National Archives and not be returned to the person who absconded with them.
To understand the illogic of her decision, imagine the following scenario. I rob a bank of $1 million and stash the bags of cash in my hotel room. My gloves and wallet fall into one bag by accident. The police search my hotel room pursuant to a court-authorized warrant that permits seizure of the cash, gloves, and wallet. The judge appoints a special master to review the evidence seized, including every last dollar, even though I have no right to the return of anything that was seized. And she enjoins the criminal case for the duration.
But there is more: To support her decision, Cannon misleadingly claims that the current president has not asserted executive privilege. That is a shameful sleight of hand. If she really had a concern about President Joe Biden’s position, she need only have asked at oral argument. She did not. Instead, she engaged in a tortured reading of the evidence that the Justice Department did present to her. A letter sent by the archives to Trump’s counsel in May noted that Biden had authorized sharing the 15 boxes with the FBI and left to the archives the determination as to whether the documents taken from Mar-a-Lago were covered by executive privilege, and that, in consultation with the Justice Department’s Office of Legal Counsel, it had decided that this was not a close call and rejected the claim. Her opinion mentions the May archives letter, so we know she was aware of it, but she failed to address it or even note its executive-privilege discussion.
Finally, Cannon mercifully carves out the Office of the Director of National Intelligence’s review from the injunction she issued preventing the Department of Justice from using any of the search material in its criminal investigation. She gives no reason why the two should be treated disparately, but presumably it’s because the DNI could not indict Trump. But the work of the DNI is not easily separated from that of the Justice Department—indeed, the DNI’s letter to Congress makes clear that the two agencies are jointly conducting the review. That makes sense because the Justice Department is necessary to that review: To evaluate risks and harms, the DNI needs to know who touched and had access to the documents. It needs Mar-a-Lago visitor records, surveillance records, emails, and copier records, and it needs to interview witnesses. All of that requires grand-jury subpoenas, which also means that Department of Justice lawyers and FBI agents must be involved. And are Attorney General Merrick Garland, a prominent member of the intelligence community, and the experienced Deputy Attorney General Lisa Monaco supposed to recuse themselves from the DNI review so they can remain on the criminal investigation?
These are just a few of the factual and legal deficiencies in Cannon’s decision. It may help Trump in the short term, but by failing to apply the law evenhandedly, she has done lasting damage to the judiciary.
Andrew Weissmann is a professor of practice at New York University School of Law, the former lead prosecutor in the Special Counsel’s Office, and the former general counsel of the FBI. He is the author of Where Law Ends: Inside the Mueller Investigation.
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Tue Sep 06, 2022 9:23 pm
Should DOJ Appeal Judge Cannon’s Incredibly Flawed Trump Special Master Ruling?
by Norman L. Eisen and Fred Wertheimer
Slate
SEPT 06, 20229:06 AM
On Aug. 27, Judge Aileen Cannon issued a preliminary order indicating that she was inclined to grant Donald Trump’s request that she appoint a special master to review the documents that the government seized during its court-approved search of Mar-a-Lago last month. So her order on Monday enjoining the Department of Justice from using those materials in its ongoing criminal investigation until a special master completes his or her review was in some ways not a surprise. Now that we know the grounds for Judge Cannon’s view and the scope of her order, though, we must respectfully but strongly disagree.
First, at the heart of the order is the assumption that Trump could have a right to the return of presidential records under Federal Rule of Criminal Procedure 41(g), which permits the return of property seized by an unlawful search and seizure. Presidential records are, by the clear terms of the Presidential Records Act, the property of the U.S. government—not the former president.
The order ignores the impossibility of returning these documents to Trump under these circumstances: There are more than 103 classified documents, including 18 designated as Top Secret—signifying that their mishandling risks exceptionally grave damage to national security. And that’s before factoring in other indicia of danger, like the recent revelation that investigators seized 48 empty folders with classified markings, which raises the question: Where are the documents? It is difficult to contemplate any basis for the return of even a single classified document under any circumstances—and certainly while the contents of these folders are unaccounted for.
Indeed, Judge Cannon herself acknowledges the danger to national security posed by Trump’s request to the extent it would stop the Office of the Director of National Intelligence’s ongoing national security review. The order enjoins the government from further review and use of these documents for investigative purposes, not for purposes of intelligence classification and national security assessments. In this way, the order is inconsistent; carving out the national security assessment from the injunction undercuts the assumption that Trump may be entitled to the return of these documents, as well as the premise that the ongoing criminal investigation must be halted. How can we contemplate the possible return of documents that could cost the lives of American agents to someone who has already treated these records with such neglect?
Further, how can national security officials make determinations on how best to protect the nation if criminal investigators are enjoined from taking investigative steps that may also serve that very purpose? Indeed, some government officials would typically be part of both of these reviews—such as the Attorney General himself. The order’s false dichotomy does not take account of those realities that are needed to protect us all.
Second, to the extent the order authorizes a special master to review the materials for assertions of executive privilege, there is no basis for this ruling. Both federal statutory law in the form of the PRA and precedent including Nixon v. GSA show that Trump cannot successfully assert executive privilege against the executive branch as it conducts executive functions. (Although this essay is written in our personal capacities only, we unpacked this law in detail in an amicus brief in this case in which we participated.)
Moreover, as the order recognizes in a footnote, to the extent that Trump wants to litigate the executive branch’s executive privilege determinations, the exclusive jurisdiction lies within the federal courts for the District of Columbia. Trump’s failure to properly assert his claims in that jurisdiction is no reason for this court to step in.
While no case holds that a special master should resolve this kind of dispute between a current and former president, the order notes a request that the Department of Justice once made to have a special master review potentially privileged documents collected from the office of one of Trump’s attorneys. But the court in that case also did not rule on the issue of executive privilege, nor did the special master’s reports make any mention of reviewing for executive privilege. And DOJ’s statement about a then-sitting president has no applicability here, where the PRA sets up a procedure for adjudicating disputes between a current and former president with jurisdiction in D.C.
Third, the question of whether there should be a special master for the smaller quantum of attorney-client privilege materials (here, about 500 pages), is a closer one. Though reasonable people may disagree, the ruling was not extraordinary in this regard. But to bootstrap that narrow ruling into a review of the full 11,000 documents for assertions of executive privilege that are beyond the purview of a special master is wrong.
Fourth, the DOJ now faces a weighty decision regarding appeal. This order is appealable under 28 U.S.C. § 1292 because the court enjoined the government from continued use of the materials in its criminal investigation. It might seem faster to simply to get on with appointing a special master, particularly since we are now within the period before an election when the DOJ prefers to stay out of political matters. If the document review could be wrapped up within that time frame, perhaps the best approach for the DOJ is to allow the review to proceed.
On the other hand, there will undoubtedly be disagreements over particular documents that will then need to be referred by the special master for resolution by the judge, and those decisions could then be subject to appeal. Nobody knows how much time that review will require. And the DOJ may not be able to afford leaving this order’s precedent on the books, given its numerous analytical flaws.
Accordingly, the DOJ faces a tough call. Whatever one’s views based on the public record, DOJ is closest to this, including internal investigatory considerations that may not be obvious to outsiders. The ultimate determination is theirs.
Fifth and finally, if there is one aspect of the decision that summarizes why we must take exception, it is the order’s repeated statements about how special a former president is, such as noting that “the stigma associated with the subject seizure is in a league of its own” due to the “Plaintiff’s former position as President of the United States.”
To the contrary, in the United States, everybody should be subject to the same legal rules. If any of us had engaged in this course of conduct, including the long pattern of apparent deception and concealment of these documents, we would have been subject to a search warrant and, indeed, potential prosecution, long ago. If for no other reason than that, the DOJ decision on appealing the court decision should consider the foundational principle here at stake. In the United States, no one is above the law.
by Norman L. Eisen and Fred Wertheimer
Slate
SEPT 06, 20229:06 AM
On Aug. 27, Judge Aileen Cannon issued a preliminary order indicating that she was inclined to grant Donald Trump’s request that she appoint a special master to review the documents that the government seized during its court-approved search of Mar-a-Lago last month. So her order on Monday enjoining the Department of Justice from using those materials in its ongoing criminal investigation until a special master completes his or her review was in some ways not a surprise. Now that we know the grounds for Judge Cannon’s view and the scope of her order, though, we must respectfully but strongly disagree.
First, at the heart of the order is the assumption that Trump could have a right to the return of presidential records under Federal Rule of Criminal Procedure 41(g), which permits the return of property seized by an unlawful search and seizure. Presidential records are, by the clear terms of the Presidential Records Act, the property of the U.S. government—not the former president.
The order ignores the impossibility of returning these documents to Trump under these circumstances: There are more than 103 classified documents, including 18 designated as Top Secret—signifying that their mishandling risks exceptionally grave damage to national security. And that’s before factoring in other indicia of danger, like the recent revelation that investigators seized 48 empty folders with classified markings, which raises the question: Where are the documents? It is difficult to contemplate any basis for the return of even a single classified document under any circumstances—and certainly while the contents of these folders are unaccounted for.
Indeed, Judge Cannon herself acknowledges the danger to national security posed by Trump’s request to the extent it would stop the Office of the Director of National Intelligence’s ongoing national security review. The order enjoins the government from further review and use of these documents for investigative purposes, not for purposes of intelligence classification and national security assessments. In this way, the order is inconsistent; carving out the national security assessment from the injunction undercuts the assumption that Trump may be entitled to the return of these documents, as well as the premise that the ongoing criminal investigation must be halted. How can we contemplate the possible return of documents that could cost the lives of American agents to someone who has already treated these records with such neglect?
Further, how can national security officials make determinations on how best to protect the nation if criminal investigators are enjoined from taking investigative steps that may also serve that very purpose? Indeed, some government officials would typically be part of both of these reviews—such as the Attorney General himself. The order’s false dichotomy does not take account of those realities that are needed to protect us all.
Second, to the extent the order authorizes a special master to review the materials for assertions of executive privilege, there is no basis for this ruling. Both federal statutory law in the form of the PRA and precedent including Nixon v. GSA show that Trump cannot successfully assert executive privilege against the executive branch as it conducts executive functions. (Although this essay is written in our personal capacities only, we unpacked this law in detail in an amicus brief in this case in which we participated.)
Moreover, as the order recognizes in a footnote, to the extent that Trump wants to litigate the executive branch’s executive privilege determinations, the exclusive jurisdiction lies within the federal courts for the District of Columbia. Trump’s failure to properly assert his claims in that jurisdiction is no reason for this court to step in.
While no case holds that a special master should resolve this kind of dispute between a current and former president, the order notes a request that the Department of Justice once made to have a special master review potentially privileged documents collected from the office of one of Trump’s attorneys. But the court in that case also did not rule on the issue of executive privilege, nor did the special master’s reports make any mention of reviewing for executive privilege. And DOJ’s statement about a then-sitting president has no applicability here, where the PRA sets up a procedure for adjudicating disputes between a current and former president with jurisdiction in D.C.
Third, the question of whether there should be a special master for the smaller quantum of attorney-client privilege materials (here, about 500 pages), is a closer one. Though reasonable people may disagree, the ruling was not extraordinary in this regard. But to bootstrap that narrow ruling into a review of the full 11,000 documents for assertions of executive privilege that are beyond the purview of a special master is wrong.
Fourth, the DOJ now faces a weighty decision regarding appeal. This order is appealable under 28 U.S.C. § 1292 because the court enjoined the government from continued use of the materials in its criminal investigation. It might seem faster to simply to get on with appointing a special master, particularly since we are now within the period before an election when the DOJ prefers to stay out of political matters. If the document review could be wrapped up within that time frame, perhaps the best approach for the DOJ is to allow the review to proceed.
On the other hand, there will undoubtedly be disagreements over particular documents that will then need to be referred by the special master for resolution by the judge, and those decisions could then be subject to appeal. Nobody knows how much time that review will require. And the DOJ may not be able to afford leaving this order’s precedent on the books, given its numerous analytical flaws.
Accordingly, the DOJ faces a tough call. Whatever one’s views based on the public record, DOJ is closest to this, including internal investigatory considerations that may not be obvious to outsiders. The ultimate determination is theirs.
Fifth and finally, if there is one aspect of the decision that summarizes why we must take exception, it is the order’s repeated statements about how special a former president is, such as noting that “the stigma associated with the subject seizure is in a league of its own” due to the “Plaintiff’s former position as President of the United States.”
To the contrary, in the United States, everybody should be subject to the same legal rules. If any of us had engaged in this course of conduct, including the long pattern of apparent deception and concealment of these documents, we would have been subject to a search warrant and, indeed, potential prosecution, long ago. If for no other reason than that, the DOJ decision on appealing the court decision should consider the foundational principle here at stake. In the United States, no one is above the law.
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Tue Sep 06, 2022 10:26 pm
Order
by Judge Aileen M. Cannon
Donald J. Trump, Plaintiff, v. United States of America, Defendant.
9/5/22
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 22-81294-CIV-CANNON
DONALD J. TRUMP,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
ORDER
THIS CAUSE comes before the Court upon Plaintiff’s Motion for Judicial Oversight and Additional Relief (the "Motion") [ECF No. 1], filed on August 22, 2022. The Court has reviewed the Motion, Plaintiff’s Supplemental Filing [ECF No. 28], the Government’s Response in Opposition [ECF No. 48], Plaintiff’s Reply [ECF No. 58], and the related filings [ECF Nos. 31, 39, 40 (sealed)]. The Court also held a hearing on the Motion on September 1, 2022.
Pursuant to the Court’s equitable jurisdiction and inherent supervisory authority, and mindful of the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented, Plaintiff’s Motion [ECF No. 1] is GRANTED IN PART. The Court hereby authorizes the appointment of a special master to review the seized property for personal items and documents and potentially privileged material subject to claims of attorney- client and/or executive privilege. Furthermore, in natural conjunction with that appointment, and consistent with the value and sequence of special master procedures, the Court also temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order. This Order shall not impede the classification review and/or intelligence assessment by the Office of the Director of National Intelligence ("ODNI") as described in the Government’s Notice of Receipt of Preliminary Order [ECF No. 31 p. 2].
RELEVANT BACKGROUND
The following is a summary of the record based on the parties’ submissions and oral presentation.1 Throughout 2021, former President Donald J. Trump ("Plaintiff") and the National Archives and Records Administration ("NARA") were engaged in conversations concerning records from Plaintiff’s time in office [ECF No. 1 p. 4; ECF No. 48-1 p. 2].2 In January 2021, as a product of those conversations, Plaintiff transferred fifteen boxes (the "Fifteen Boxes") from his personal residence to NARA [ECF No. 1 pp. 4–5; ECF No. 48 p. 5; ECF No. 48-1 p. 6]. Upon initial review of the Fifteen Boxes, NARA identified the items contained therein as newspapers, magazines, printed news articles, photos, miscellaneous printouts, notes, presidential correspondence, personal records, post-presidential records, and classified records [ECF No. 48 p. 5]. NARA subsequently informed the Department of Justice ("DOJ") of the contents of the boxes, claiming that some items contained markings of "classified national security information" [ECF No. 48 p. 5].
On April 12, 2022, NARA notified Plaintiff that it intended to provide the Fifteen Boxes to the Federal Bureau of Investigation ("FBI") the following week [ECF No. 48 p. 5]. Plaintiff then requested an extension on the contemplated delivery so that he could determine the existence of any privileged material [ECF No. 48-1 p. 7]. The White House Counsel’s Office granted the request [ECF No. 48-1 p. 7]. On May 10, 2022, NARA informed Plaintiff that it would proceed with "provid[ing] the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022" [ECF No. 48-1 p. 9]. The Government’s filing states that the FBI did not obtain access to the Fifteen Boxes until approximately May 18, 2022 [ECF No. 48 p. 7].
On May 11, 2022, during the period of ongoing communications between Plaintiff and NARA, and before DOJ received the Fifteen Boxes, DOJ "obtained a grand jury subpoena, for which Plaintiff’s counsel accepted service" [ECF No. 48 pp. 7–8; see ECF No. 1 p. 5]. The subpoena was directed to the "Custodian of Records [for] [t]he Office of Donald J. Trump" and requested "[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings" [ECF No. 48-1 p. 11]. Plaintiff contacted DOJ on June 2, 2022, and requested that FBI agents visit his residence the following day to pick up responsive documents [ECF No. 1 p. 5; ECF No. 48 p. 8]. Upon the FBI’s arrival, Plaintiff’s team handed over documents and permitted the three FBI agents and an accompanying DOJ attorney to visit the storage room where the documents were held [ECF No. 1 pp. 5–6; ECF No. 48 p. 9].
The Government contends that, after further investigation, "the FBI uncovered multiple sources of evidence indicating that the response to the May 11 grand jury subpoena was incomplete," and that potentially classified documents remained at Plaintiff’s residence [ECF No. 48 p. 10]. Based on this evidence and an affidavit that remains partially under seal, on August 5, 2022, the Government applied to a United States Magistrate Judge for a search and seizure warrant of Plaintiff’s residence, citing Title 18, Sections 793, 1519, and 2701 of the United States Code. Finding probable cause for each offense, the Magistrate Judge authorized law enforcement to (1) search Plaintiff’s office, "all storage rooms, and all other rooms or areas within the premises used or available to be used by [Plaintiff] and his staff and in which boxes or documents could be stored," and (2) seize the following: "[a]ny physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes"; "[ i]nformation, including communications in any form, regarding the retrieval, storage, or transmission of national defense information or classified material"; "[a]ny government and/or Presidential records created" during Plaintiff’s presidency; or "[a]ny evidence of the knowing alteration, destruction, or concealment of any government and/or Presidential Records, or of any documents with classification markings." USA v. Sealed Search Warrant, No. 22-08332-MJ-BER-1, ECF No. 17 pp. 3–4 (S.D. Fla. Aug. 11, 2022).
On August 8, 2022, pursuant to the search warrant, the Government executed an unannounced search of Plaintiff’s residence. As reflected in the "Detailed Property Inventory" submitted by the Government in this action, agents seized approximately 11,000 documents and 1,800 other items from the office and storage room [ECF No. 39-1].3 The seized property is generally categorized on the inventory as twenty-seven boxes containing documents, with and without classification markings, along with photographs, other documents, and miscellaneous material [ECF No. 1 pp. 24–26].4
Shortly after the search of the residence, Plaintiff’s counsel spoke with the Government and requested the following: a copy of the affidavit in support of the warrant; the Government’s consent to the appointment of a special master "to protect the integrity of privileged documents"; a detailed list of what was taken from the residence and from where exactly; and an opportunity to inspect the seized property [ECF No. 1 pp. 8–9]. The Government denied those requests [ECF No. 1 p. 9].5
In the absence of any agreement between the parties, on August 22, 2022, Plaintiff filed the Motion for Judicial Oversight and Additional Relief, seeking (1) the appointment of a special master to oversee the review of seized materials regarding identification of personal property and privilege review; (2) the enjoinment of further review of the seized materials until a special master is appointed; (3) a more detailed receipt for property; and (4) the return of any items seized in excess of the search warrant [ECF No. 1 p. 21; ECF No. 28 p. 10].
Following receipt of the Motion, the Court ordered Plaintiff to elaborate on the basis for the Court’s jurisdiction and the relief sought [ECF No. 10]. Plaintiff did so via a Supplement to the Motion on August 26, 2022 [ECF No. 28]. Consistent with Rule 53(b)(1) of the Federal Rules of Civil Procedure, the Court issued a preliminary order indicating its intent to appoint a special master [ECF No. 29]. Shortly thereafter, the Government appeared in this action and filed the Notice of Receipt of Preliminary Order [ECF No. 31]. Plaintiff executed service that same day [ECF No. 32]. The Government then filed under seal the Notice by Investigative Team of Status Review (the "Investigative Team Report") [ECF No. 39], attaching the "Detailed Property Inventory" as ordered by the Court [ECF No. 39-1]. The Investigative Team Report, now fully unsealed, indicates that the Investigative Team has "reviewed the seized materials in furtherance of its ongoing investigation," and that "[t]he seized materials will continue to be used to further the government’s investigation . . . as it takes further investigative steps, such as through additional witness interviews and grand jury practice" [ECF No. 39 p. 2]. While acknowledging that investigators have "already examined every item seized (other than materials that remain subject to the filter protocols)," the Government clarifies that "‘review’ of the seized materials is not a single investigative step but an ongoing process in this active criminal investigation" [ECF No. 39 p. 2]. The Government also states in its Investigative Team Report that DOJ and ODNI are "facilitating a classification review of materials recovered pursuant to the search warrant, and ODNI is leading an intelligence community assessment of the potential risk to national security that would result from disclosure of the seized materials" [ECF No. 39 pp. 2–3]. Additionally, the Government filed under seal its Notice of Status of Privilege Review Team’s Filter Process and Production of Itemized List of Documents Within Privilege Review Team’s Custody (the "Privilege Review Team’s Report") [ECF No. 40 (sealed)]. The Privilege Review Team’s Report remains under seal in accordance with the parties’ joint request at the hearing. This Order refers to the content of that report in general terms.
On August 30, 2022, the Government filed the Response to Plaintiff’s Motion [ECF No. 48], and on August 31, 2022, Plaintiff filed the Reply [ECF No. 58]. The Court then held a hearing on the Motion. This Order follows.
DISCUSSION
I. Jurisdiction
As previewed, Plaintiff initiated this action with a hybrid motion that seeks independent review of the property seized from his residence on August 8, 2022, a temporary injunction on any further review by the Government in the meantime, and ultimately the return of the seized property under Rule 41(g) of the Federal Rules of Criminal Procedure.6 Though somewhat convoluted, this filing is procedurally permissible7 and creates an action in equity. See Richey v. Smith, 515 F.2d 1239, 1245 (5th Cir. 1975) ("[A] motion [for return of property] prior to [a] criminal proceeding[] . . . is more properly considered simply a suit in equity rather than one under the Rules of Criminal Procedure."); In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, 11 F.4th 1235, 1245 n.6 (11th Cir. 2021) ("[Rule 41] is the proper way to come before the court to seek an injunction regarding the government’s use of a filter team to review seized documents."). In other words, to entertain Plaintiff’s requests, the Court first must decide to exercise its equitable jurisdiction, see United States v. Martinez, 241 F.3d 1329, 1330 (11th Cir. 2001), which "derives from the [Court’s] inherent authority" over its officers (including attorneys) and processes, see Hunsucker v. Phinney, 497 F.2d 29, 32 (5th Cir. 1974); Fayemi v. Hambrecht and Quist, Inc., 174 F.R.D. 319, 324 (S.D.N.Y. 1997).8 In general, Rule 41(g) proceedings are "rooted in equitable principles" and served by "flexibility in procedural approach." Smith v. Katzenbach, 351 F.2d 810, 817 (D.C. Cir. 1965).
Importantly, equitable jurisdiction is reserved for "exceptional" circumstances, see Hunsucker, 497 F.2d at 32, and must be "exercised with caution and restraint," Matter of Sixty-Seven Thousand Four Hundred Seventy Dollars ($67,470.00), 901 F.2d 1540, 1544 (11th Cir. 1990). Mindful of its limited power in this domain, the Court endeavors to fulfill its obligations under the law with due care.
***
Upon full consideration of the parties’ arguments and the exceptional circumstances presented, the Court deems the exercise of equitable jurisdiction over this action to be warranted. In making this determination, the Court relies in part on the factors identified in Richey v. Smith. 515 F.2d at 1245.9 In that case, the former Fifth Circuit counseled courts to consider, for equitable jurisdiction purposes, whether the government displayed a callous disregard for the movant’s constitutional rights, whether the movant has an individual interest in and need for the seized property, whether the movant would be irreparably injured by denial of the return of the seized property, and whether the movant otherwise has an adequate remedy at law. Id. (describing these factors as "some of the considerations" that should inform the decision of whether to exercise equitable jurisdiction); see also Mesa Valderrama v. United States, 417 F.3d 1189, 1197 (11th Cir. 2005) (characterizing the Richey factors as guiding considerations). Those factors, although mixed, ultimately counsel in favor of exercising jurisdiction.
With respect to the first factor, the Court agrees with the Government that, at least based on the record to date, there has not been a compelling showing of callous disregard for Plaintiff’s constitutional rights. This factor cuts against the exercise of equitable jurisdiction.
The second factor—whether the movant has an individual interest in and need for the seized property—weighs in favor of entertaining Plaintiff’s requests. According to the Privilege Review Team’s Report, the seized materials include medical documents, correspondence related to taxes, and accounting information [ECF No. 40-2; see also ECF No. 48 p. 18 (conceding that Plaintiff "may have a property interest in his personal effects")]. The Government also has acknowledged that it seized some "[p]ersonal effects without evidentiary value" and, by its own estimation, upwards of 500 pages of material potentially subject to attorney-client privilege [ECF No. 48 p. 16; ECF No. 40 p. 2]. Thus, based on the volume and nature of the seized material, the Court is satisfied that Plaintiff has an interest in and need for at least a portion of it, even if the underlying subsidiary detail as to each item cannot reasonably be determined at this time based on the information provided by the Government to date.10
The same reasoning contributes to the Court’s determination that the third factor—risk of irreparable injury—likewise supports the exercise of jurisdiction. In addition to being deprived of potentially significant personal documents, which alone creates a real harm, Plaintiff faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public.11 Further, Plaintiff is at risk of suffering injury from the Government’s retention and potential use of privileged materials in the course of a process that, thus far, has been closed off to Plaintiff and that has raised at least some concerns as to its efficacy, even if inadvertently so. See infra Discussion III. Finally, Plaintiff has claimed injury from the threat of future prosecution and the serious, often indelible stigma associated therewith. As the Richey court wrote, "a wrongful indictment is no laughing matter; it often works a grievous, irreparable injury to the person indicted. The stigma cannot be easily erased. In the public mind, the blot on a man’s escutcheon, resulting from such a public accusation of wrongdoing, is seldom wiped out by a subsequent judgment of not guilty. Frequently, the public remembers the accusation, and still suspects guilt, even after an acquittal." 515 F.2d at 1244 n.10; see also In the Matter of John Bennett, No. 12-61499-CIV-RSR, ECF No. 22 pp. 26–27 (S.D. Fla. July 23, 2013) (explaining that, although some courts have rejected Richey’s observation as to the harm posed by indictments, Richey remains binding on district courts in the Eleventh Circuit). As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.
As to the fourth Richey factor, Plaintiff has persuasively argued that there is no alternative adequate remedy at law. Without Rule 41(g), Plaintiff would have no legal means of seeking the return of his property for the time being and no knowledge of when other relief might become available. See United States v. Ryan, 402 U.S. 530, 533 (1971) (expressing concern that the denial to consider Rule 41(g) requests "would mean that the Government might indefinitely retain the property without any opportunity for the movant to assert . . . his right to possession"); Harbor Healthcare Sys., L.P. v. United States, 5 F.4th 593, 601 (5th Cir. 2021) (explaining that motions to suppress and motions for return of property serve different functions); United States v. Dean, 80 F.3d 1535, 1542 (11th Cir. 1996), opinion modified on reconsideration, 87 F.3d 1212 (11th Cir. 1996) (making clear that the principle behind the doctrine of equitable jurisdiction—"that the state should not be permitted to deny individuals their property without recourse simply because there is no jurisdiction at law"—applies even when the seizure was lawful).
In combination, these guideposts favor the careful exercise of equitable jurisdiction under the circumstances. This determination is reinforced by the broader landscape of relevant equitable considerations. See generally Di Giovanni v. Camden Fire Ins. Ass’n, 296 U.S. 64, 73 (1935) (explaining that courts’ discretion in the realm of equity "may properly be influenced by considerations of the public interests involved" and the consequences of any grant of relief); Smith, 351 F.2d at 817–18 (elaborating on the breadth and flexibility of equitable considerations); Richey, 515 F.2d at 1245 (noting that the four identified factors are "some of the considerations" that should inform courts’ determinations); Mesa Valderrama, 417 F.3d at 1197 (characterizing the Richey factors as guiding considerations). Hence, the Court takes into account the undeniably unprecedented nature of the search of a former President’s residence; Plaintiff’s inability to examine the seized materials in formulating his arguments to date; Plaintiff’s stated reliance on the customary cooperation between former and incumbent administrations regarding the ownership and exchange of documents; the power imbalance between the parties; the importance of maintaining institutional trust; and the interest in ensuring the integrity of an orderly process amidst swirling allegations of bias and media leaks. Measuring the Richey factors along with all of the other considerations pertinent to a holistic equitable analysis, the scales tip decidedly in favor of exercising jurisdiction.12
The Court pauses briefly to emphasize the limits of this determination. Plaintiff ultimately may not be entitled to return of much of the seized property or to prevail on his anticipated claims of privilege. That inquiry remains for another day. For now, the circumstances surrounding the seizure in this case and the associated need for adequate procedural safeguards are sufficiently compelling to at least get Plaintiff past the courthouse doors.
II. Standing
There is another threshold argument the Court must consider, and that is the Government’s assertion as to Plaintiff’s lack of standing [ECF No. 48 pp. 2, 14–16]. The Government posits that Plaintiff lacks standing to bring a Rule 41(g) action or even to seek a special master, because the seized property consists of "Presidential records" over which Plaintiff lacks a "possessory interest" [ECF No. 48 pp. 14–15]. The Government relies on the definition of "Presidential records" under the Presidential Records Act (the "PRA"), see 44 U.S.C. § 2201(2), and on the Eleventh Circuit’s decision in Howell, 425 F.3d at 974; see supra note 12.
Plaintiff opposes the Government’s standing argument as premature and fundamentally flawed [ECF No. 58 p. 2]. In Plaintiff’s view, what matters now is his authority to seek the appointment of a special master—not his underlying legal entitlement to possess the records or his definable "possessory interest" under Rule 41(g) [ECF No. 58 pp. 4–6]. Moreover, Plaintiff adds, even assuming the Court were inclined at this juncture to consider Plaintiff’s potential claim of unreasonableness under the Fourth Amendment, settled law permits him, as the owner of the premises searched, to object to the seizure as unreasonable [ECF No. 58 pp. 2, 4–6].
Having considered these crisscrossing arguments, the Court concludes that Plaintiff is not barred as a matter of standing from bringing this Rule 41(g) action or from invoking the Court’s authority to appoint a special master more generally. To have standing to bring a Rule 41(g) motion, a movant must allege "a colorable ownership, possessory or security interest in at least a portion of the [seized] property." United States v. Melquiades, 394 F. App’x 578, 584 (11th Cir. 2010) (quoting United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1204 (10th Cir. 2001)). Once that preliminary showing is made, the standing requirement is satisfied, because "[the] owner or possessor of property that has been seized necessarily suffers an injury that can be redressed at least in part by the return of the seized property." United States v. $515,060.42 in U.S. Currency, 152 F.3d 491, 497 (6th Cir. 1998). Contrary to the Government’s reading of Howell, Plaintiff need not prove ownership of the property but rather need only allege facts that constitute a colorable showing of a right to possess at least some of the seized property. Melquiades, 394 F. App’x at 584. Although the Government argues that Plaintiff has no property interest in any of the presidential records seized from his residence, that position calls for an ultimate judgment on the merits as to those documents and their designations. Further, the Government concedes that the seized property includes "personal effects," 520 pages of potentially privileged material, and at least some material that is in fact privileged [ECF No. 48 pp. 15–16]. This is sufficient to satisfy the standing requirement for the Rule 41(g) request and the request for a special master.
See generally United States v. Stewart, No. 02-CR-395, 2002 WL 1300059 (S.D.N.Y. June 11, 2002) (implicitly accepting that a party has standing to seek review by a special master when at least some of the seized materials are privileged); United States v. Abbell, 914 F. Supp. 519 (S.D. Fla. 1995) (same).
III. The Need for Further Review
Having determined that the exercise of jurisdiction is appropriate and that Plaintiff has standing to bring the instant requests, the Court next considers the need for further review of the seized material, as relates to Rule 41(g) and matters of privilege.
Although some of the seized items (e.g., articles of clothing) appear to be readily identifiable as personal property, the parties’ submissions suggest the existence of genuine disputes as to (1) whether certain seized documents constitute personal or presidential records, and (2) whether certain seized personal effects have evidentiary value. Because those disputes are bound up with Plaintiff’s Rule 41(g) request and involve issues of fact, the Court "must receive evidence" from the parties thereon. See Fed. R. Crim. P. 41(g) ("The court must receive evidence on any factual issue necessary to decide the motion."). That step calls for comprehensive review of the seized property.
Review is further warranted, as previewed, for determinations of privilege. The Government forcefully objects, even with respect to attorney-client privilege, pointing out that the Privilege Review Team already has screened the seized property and is prepared to turn over approximately 520 pages of potentially privileged material for court review pursuant to the previously approved ex parte filter protocol [ECF No. 48 p. 14]. In plain terms, the Government’s position is that another round of screening would be "unnecessary" [ECF No. 48 p. 22]. The Court takes a different view on this record.
To begin, the Government’s argument assumes that the Privilege Review Team’s initial screening for potentially privileged material was sufficient, yet there is evidence from which to call that premise into question here. See In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, 11 F.4th at 1249–51; see also Abbell, 914 F. Supp. at 520 (appointing a special master even after the government’s taint attorney already had reviewed the seized material). As reflected in the Privilege Review Team’s Report, the Investigative Team already has been exposed to potentially privileged material. Without delving into specifics, the Privilege Review Team’s Report references at least two instances in which members of the Investigative Team were exposed to material that was then delivered to the Privilege Review Team and, following another review, designated as potentially privileged material [ECF No. 40 p. 6]. Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process.13
The Government’s argument that another round of initial screening is unnecessary also disregards the value added by an outside reviewer in terms of, at a minimum, the appearance of fairness. Even if DOJ filter review teams often pass procedural muster, they are not always perceived to be as impartial as special masters. See In re Search Warrant for L. Offs. Executed on Mar. 19, 1992, 153 F.R.D. 55, 59 (S.D.N.Y. 1994) ("It is a great leap of faith to expect that members of the general public would believe any [wall between a filter review team and a prosecution team] would be impenetrable; this notwithstanding our own trust in the honor of an [Assistant United States Attorney]."). Concerns about the perception of fair process are heightened where, as here, the Privilege Review Team and the Investigation Team contain members from the same section within the same DOJ division, even if separated for direct-reporting purposes on this specific matter. "[P]rosecutors have a responsibility to not only see that justice is done, but to also ensure that justice appears to be done." See In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 183 (4th Cir. 2019), as amended (Oct. 31, 2019). A commitment to the appearance of fairness is critical, now more than ever.14
Though the foregoing analysis focuses on attorney-client privilege, the Court is not convinced that similar concerns with respect to executive privilege should be disregarded in the manner suggested by the Government. The Government asserts that executive privilege has no role to play here because Plaintiff—a former head of the Executive Branch—is entirely foreclosed from successfully asserting executive privilege against the current Executive Branch [ECF No. 48 pp. 24–25]. In the Court’s estimation, this position arguably overstates the law. In Nixon v. Administrator of General Services, 433 U.S. 425 (1977), a case involving review of presidential communications by a government archivist, the Supreme Court expressly recognized that (1) former Presidents may assert claims of executive privilege, id. at 439; (2) "[t]he expectation of the confidentiality of executive communications . . . [is] subject to erosion over time after an administration leaves office," id. at 451; and (3) the incumbent President is "in the best position to assess the present and future needs of the Executive Branch" for purposes of executive privilege, id. at 449. The Supreme Court did not rule out the possibility of a former President overcoming an incumbent President on executive privilege matters. Further, just this year, the Supreme Court noted that, at least in connection with a congressional investigation, "[t]he questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege, are unprecedented and raise serious and substantial concerns." Trump v. Thompson, 142 S. Ct. 680, 680 (2022); see also id. at 680 (Kavanaugh, J., respecting denial of application for stay) ("A former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim. Concluding otherwise would eviscerate the executive privilege for Presidential communications.").15 Thus, even if any assertion of executive privilege by Plaintiff ultimately fails in this context, that possibility, even if likely, does not negate a former President’s ability to raise the privilege as an initial matter. Accordingly, because the Privilege Review Team did not screen for material potentially subject to executive privilege, further review is required for that additional purpose.16
IV. Appointment of a Special Master
An independent special master should conduct the additional review that is warranted here. Rule 53(a) of the Federal Rules of Civil Procedure empowers courts to appoint a special master to "address pretrial . . . matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district." Fed. R. Civ. P. 53(a). Here, as noted, the Government’s inventory reflects a seizure of approximately 11,000 documents and 1,800 other items from Plaintiff’s residence [see ECF No. 39-1]. Considering the volume of seized materials and the parties’ expressed desire for swift resolution of this matter, a special master would be better suited than this Court to conduct the review. The appointment of a special master is not uncommon in the context of attorney-client privilege. See, e.g., In re Search Warrant dated November. 5, 2021, 2021 WL 5845146, at *2; Stewart, 2002 WL 1300059, at *10; Abbell, 914 F. Supp. at 520. Nor is the appointment of a special master unheard of in the context of potentially executive privileged material. In fact, the Government itself recently contemplated and requested the appointment of a special master to review for both attorney-client and executive privilege. See In the Matter of Search Warrants Executed on April 28, 2021, No. 21-00425-MC-JPO, ECF No. 1 (S.D.N.Y. May 4, 2021) ("[ u]nder certain exceptional circumstances, the appointment of a special master to review materials seized from an attorney may be appropriate. Those circumstances may exist where . . . the attorney represents the President of the United States such that any search may implicate not only the attorney-client privilege but the executive privilege."). Most importantly, courts recognize that special masters uniquely promote "the interests and appearance of fairness and justice." United States v. Gallego, No. CR-18-01537-001, 2018 WL 4257967, at *3 (D. Ariz. Sept. 6, 2018); see also In re Search Warrants Executed on April 28, 2021, No. 21-MC-425 (JPO), 2021 WL 2188150, at *4 (S.D.N.Y. May 28, 2021) ("The Court agrees that the appointment of a special master is warranted here to ensure the perception of fairness."). Special effort must be taken to further those ends here.
V. Temporary Injunctive Relief
As a final matter, the Court determines that a temporary injunction on the Government’s use of the seized materials for investigative purposes—but not ODNI’s national security assessment—is appropriate and equitable to uphold the value of the special master review.17 It is not entirely clear whether courts must perform an additional analysis under Rule 65 of the Federal Rules of Civil Procedure in this context, seeing as how a temporary restraint on use naturally furthers and complements the appointment of a special master. See, e.g., Stewart, 2002 WL 1300059, at *10 (instructing the government not to review the seized documents pending further instruction). To appoint a special master to make privilege determinations while simultaneously allowing the Government, in the interim, to continue using potentially privileged material for investigative purposes would be to ignore the pressing concerns and hope for the best.18 Moreover, many courts that have explicitly issued injunctions relating to special master review have done so without discussing Rule 65. See USA v. Gallego et al, No. 18-01537-CR-RM-BGM-1, ECF Nos. 26, 36 (Aug. 9 & 10, 2018). In any event, the Government reasonably maintains (without objection from Plaintiff) that the Court must engage with Rule 65, and so for the sake of completeness and prudence, the Court proceeds accordingly.19
Rule 65 recognizes the power of courts to issue injunctive relief. Such relief is considered "extraordinary," and to obtain it, a movant must "clearly carr[y] the burden of persuasion" as to the following factors: (1) a substantial likelihood of success on the merits; (2) irreparable injury unless the injunction is issued; (3) the threatened injury to the movant outweighs whatever damage the injunction may cause to the opposing party; and (4) the injunction would not be adverse to the public interest. United States v. Jefferson Cnty., 720 F.2d 1511, 1519 (11th Cir. 1983) (quoting Canal Authority v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974)). "When the government is the opposing party, as it is here, the third and fourth factors merge." Georgia v. President of the United States, No. 21-14269, 2022 WL 3703822, at *3 (11th Cir. Aug. 26, 2022).
As discussed above, see supra Discussion III, the Court is satisfied that Plaintiff has "a likelihood of success on the merits of [his] challenge to the [Privilege Review Team] and its [p]rotocol." In re Search Warrant Issued June 13, 2019, 942 F.3d at 171; see also In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, 11 F.4th at 1248–49 (assessing "likelihood of success on the merits" in terms of the sufficiency of the filter team’s review). For the same reasons—chiefly, the risk that the Government’s filter review process will not adequately safeguard Plaintiff’s privileged and personal materials in terms of exposure to either the Investigative Team or the media—Plaintiff has sufficiently established irreparable injury.
With regard to the injury factor, the Government contends that the timing of the Motion—filed two weeks after the subject seizure occurred—"militates against a finding of irreparable harm" [ECF No. 48 p. 20 (quoting Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1248 (11th Cir. 2016))]. The Court disagrees. As the Government acknowledges, denials of injunctive relief based on a party’s delay usually arise in the context of considerably longer periods of time than the fourteen-day span implicated here. Wreal, 840 F.3d at 1244, 1248. Nor has the Government offered any authority denying injunctive relief on the basis of a two-week span. On the contrary, courts have held that delays of two or three weeks are not sufficiently long to undercut a showing of irreparable harm. See, e.g., Tom Doherty Assocs. v. Saban Ent, Inc., 60 F.3d 27, 39–40 (2d Cir. 1995); Fisher-Price Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 125 (2d Cir. 1994), abrogated on other grounds by Belair v. MGA Ent., Inc., 503 F. App’x 65 (2d Cir. 2021). The Government thus is left to suggest that two weeks, perhaps ordinarily acceptable, is too long here because requests for special masters to review privileged material are typically made on a more expedited basis [ECF No. 48 pp. 20–21]. On balance, the Court is not persuaded. It is undisputed that Plaintiff’s counsel attempted to resolve Plaintiff’s request for a special master and other relief informally with the Government almost immediately after the search, without judicial intervention [see ECF No. 1 pp. 8–9]. In view of Plaintiff’s timely attempt toward a negotiated resolution of this issue, along with Plaintiff’s inability to know the extent of what was seized, the Court is satisfied that Plaintiff did not "slumber[] on [his] rights." In re Search Warrant Issued June 13, 2019, 942 F.3d at 182. While Plaintiff perhaps did not act as promptly as he could have, the two-week delay does not now preclude Plaintiff from seeking or being entitled to injunctive relief.
Lastly, with respect to the merged third and fourth factors, Plaintiff has shown, all in all, that the public and private interests at stake support a temporary enjoinment on the use of the seized materials for investigative purposes, without impacting the Government’s ongoing national security review. As Plaintiff articulated at the hearing, the investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness. See supra Discussion III–IV; see also In re Search Warrant Issued June 13, 2019, 942 F.3d at 182 ("[A]n award of injunctive relief in these circumstances supports the ‘strong public interest’ in the integrity of the judicial system." (quoting United States v. Hasting, 461 U.S. 499, 527 (1983) (Brennan, J., concurring in part and dissenting in part))). The Government’s principal objection is that an injunction pending resolution of the special master’s review would delay the associated criminal investigation and national security risk assessment [ECF No. 48 pp. 29–30]. With respect to the referenced national security concerns, the Court understands and does not impact that component. But with respect to the Government’s ongoing criminal investigation, the Court does not find that a temporary special master review under the present circumstances would cause undue delay.20 "[E]fficient criminal investigations are certainly desirable," In re Search Warrant Issued June 13, 2019, 942 F.3d at 181, but so too are countervailing considerations of fair process and public trust. "[T]he [G]overnment chose to proceed by securing a search warrant for [the former President’s home and office] and seeking and obtaining [a] magistrate judge’s approval of the [f]ilter [p]rotocol. The [G]overnment should have been fully aware that use of a filter team in these circumstances was ripe for substantial legal challenges, and should have anticipated that those challenges could delay its investigations." In re Search Warrant Issued June 13, 2019, 942 F.3d at 181. None of this should be read to minimize the importance of investigating criminal activity or to indicate anything about the merits of any future court proceeding.
For all of these reasons, upon full consideration of the Rule 65 factors, the Court determines that a temporary injunction on the Government’s use of the seized materials for criminal investigative purposes pending resolution of the special master’s review process is warranted. The Court is mindful that restraints on criminal prosecutions are disfavored21 but finds that these unprecedented circumstances call for a brief pause to allow for neutral, third-party review to ensure a just process with adequate safeguards.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1. A special master shall be APPOINTED to review the seized property, manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property. The exact details and mechanics of this review process will be decided expeditiously following receipt of the parties’ proposals as described below.
2. The Government is TEMPORARILY ENJOINED from further review and use of any of the materials seized from Plaintiff’s residence on August 8, 2022, for criminal investigative purposes pending resolution of the special master’s review process as determined by this Court. The Government may continue to review and use the materials seized for purposes of intelligence classification and national security assessments.
3. On or before September 9, 2022, the parties shall meaningfully confer and submit a joint filing that includes: a. a list of proposed special master candidates; and b. a detailed proposed order of appointment in accordance with Rule 53(b), outlining, inter alia, the special master’s duties and limitations consistent with this Order, ex parte communication abilities, schedule for review, and compensation.
4. Any points of substantive disagreement as to 3(a) or (b) should be identified in the forthcoming joint filing.
5. The Court RESERVES RULING on Plaintiff’s request for return of property pending further review.
6. This Order is subject to modification as appropriate.
DONE AND ORDERED in Chambers at Fort Pierce, Florida this 5th day of September 2022.
_________________________________
AILEEN M. CANNON
UNITED STATES DISTRICT JUDGE
cc: counsel of record
_______________
Notes:
1 Neither party requested an evidentiary hearing on the Motion, and under the circumstances, the Court finds resolution of the Motion sufficient and prudent on the present record.
2 NARA is an independent federal agency within the Executive Branch that is responsible for the preservation and documentation of government and historical records.
3 These figures are drawn collectively from the Government’s Detailed Property Inventory [ECF No. 39-1].
4 Based on the Detailed Property Inventory, of the approximately 11,000 documents seized, roughly 100 contain classification markings [ECF No. 39-1 pp. 2–8].
5 The exact date of that conversation is unclear, but all agree that the conversation took place soon after the search. Plaintiff references August 11, 2022, in the Motion, three days after the search (and eleven days prior to the filing of the Motion). The Government does not offer a different view in its Response or otherwise challenge the substance of the rejected requests. Counsel for the Government stated during the hearing that Plaintiff’s request for a special master was rejected on August 9, 2022, the morning after the search.
6 Prior to 2002, what is now Rule 41(g) was codified as Rule 41(e). "[E]arlier cases interpreting Rule 41(e) also apply to the new Rule 41(g)." United States v. Garza, 486 F. App’x 782, 784 n.3 (11th Cir. 2012); see De Almeida v. United States, 459 F.3d 377, 380 n.2 (2d Cir. 2006).
7 Rule 41(g) allows movants, prior to the return of an indictment, to initiate standalone actions "in the district where [their] property was seized." See Fed. R. Crim. P. 41(g); United States v. Wilson, 540 F.2d 1100, 1104 (D.C. Cir. 1976) ("Property which is seized . . . either by search warrant or subpoena may be ultimately disposed of by the court in that proceeding or in a subsequent civil action."); In the Matter of John Bennett, No. 12-61499-CIV-RSR, ECF No. 1 (S.D. Fla. July 31, 2012) (initiating an action with a "petition to return property"); see also In re Grand Jury Investigation of Hugle, 754 F.2d 863, 865 (9th Cir. 1985) ("[A] court is not required to defer relief [relating to privileged material] until after issuance of the indictment.").
8 To the extent the Motion seeks relief totally distinct from the return of property itself, the Motion invokes the Court’s inherent supervisory authority directly. See generally Gravel v. United States, 408 U.S. 606, 628 (1972); In the Matter of Search Warrants Executed on April 28, 2021, No. 21-00425-MC-JPO, ECF No. 1 (S.D.N.Y. May 4, 2021) (the government initiating a new action by requesting that the Court, pursuant to its supervisory authority, appoint a special master to conduct filter review of materials potentially subject to attorney-client privilege and/or executive privilege).
9 In Bonner v. City of Prichard, 661 F.2d 1206, 1209–11 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
10 To the extent the Government challenges Plaintiff’s standing to bring this action, the Court addresses that argument below. See infra Discussion II.
11 When asked about the dissemination to the media of information relative to the contents of the seized records, Government’s counsel stated that he had no knowledge of any leaks stemming from his team but candidly acknowledged the unfortunate existence of leaks to the press.
12 At the hearing, the Government argued that the equitable concept of "unclean hands" bars Plaintiff from moving under Rule 41(g), citing United States v. Howell, 425 F.3d 971, 974 (11th Cir. 2005) ("[I]n order for a district court to grant a Rule 41(g) motion, the owner of the property must have clean hands."). Howell involved a defendant who pled guilty to conspiring to distribute cocaine and then sought the return of $140,000 in government-issued funds that were seized from him following a drug sale to a confidential source. Id. at 972–73. That case is not factually analogous to the circumstances presented and does not provide a basis to decline to exercise equitable jurisdiction here. Plaintiff has not pled guilty to any crimes; the Government has not clearly explained how Plaintiff’s hands are unclean with respect to the personal materials seized; and in any event, this is not a situation in which there is no room to doubt the immediately apparent incriminating nature of the seized material, as in the case of the sale of cocaine.
13 In explaining these incidents at the hearing, counsel from the Privilege Review Team characterized them as examples of the filter process working. The Court is not so sure. These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material. The Government’s other explanation—that these instances were the result of adopting an overinclusive view of potentially privileged material out of an abundance of caution—does not satisfy the Court either. Even accepting the Government’s untested premise, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the Investigative Team. Perhaps most concerning, the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team [see ECF No. 40]. In sum, without drawing inferences, there is a basis on this record to question how materials passed through the screening process, further underscoring the importance of procedural safeguards and an additional layer of review. See, e.g., In re Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006) ("In United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), for instance, the government’s taint team missed a document obviously protected by attorney-client privilege, by turning over tapes of attorney-client conversations to members of the investigating team. This Noriega incident points to an obvious flaw in the taint team procedure: the government’s fox is left in charge of the appellants’ henhouse, and may err by neglect or malice, as well as by honest differences of opinion.").
14 The Government implies that additional independent review for attorney-client privilege, such as by a special master, is appropriate only when a search of a law firm occurred [ECF No. 48 pp. 30–32]. Whatever the extent of this argument, it fails decisively here. True, special masters ordinarily arise in the more traditional setting of law firms and attorneys’ offices. But the Court does not see why these concerns would not apply, at least to a considerable degree, to the office and home of a former president. Moreover, at least one other court has authorized additional independent review for attorney-client privilege outside of the law firm context, in politicized circumstances. See In re Search Warrant dated November 5, 2021, No. 21-Misc-813, 2021 WL 5845146, at *1 (S.D.N.Y. Dec. 8, 2021) (appointing a special master to conduct review of materials seized from the homes of employees of Project Veritas for potentially attorney-client privileged materials).
15 On the current record, having been denied an opportunity to inspect the seized documents, Plaintiff has not formally asserted executive privilege as to any specific materials, nor has the incumbent President upheld or withdrawn such an assertion.
16 The Court recognizes that, under the PRA, "[t]he United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist" to permit public dissemination of presidential records "violates the former President’s [constitutional] rights or privileges." 44 U.S.C. § 2204.
17 Although the Motion asks the Court to enjoin the Government’s review of the seized materials pending the appointment of a special master, it is clear that this request is meant to cover the Government’s temporary use of the seized materials and extend into the special master’s review process as appropriate. Any uncertainty on this point was clarified by Plaintiff’s presentation at the hearing. See United States v. Potes Ramirez, 260 F.3d 1310, 1315 (11th Cir. 2001) ("In the context of Rule 41[(g)] motions, several circuit courts have remarked on a district court’s authority to fashion an equitable remedy[] when appropriate . . . .").
18 Even without a temporary injunction as described herein, the Court would exercise its discretion to appoint a special master despite the considerably diminished utility of such an appointment.
19 Because this part of the Order relies on much of the same reasoning articulated above, the Court uses internal cross-references where appropriate to minimize repetition.
20 The Government represents that it completed a preliminary review of the seized property in approximately three weeks [ECF Nos. 39, 40].
21 See Younger v. Harris, 401 U.S. 37, 43–44 (1971) ("[C]ourts of equity should not . . . act to restrain a criminal prosecution[] when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief."); Stefanelli v. Minard, 342 U.S. 117, 120 (1951) (explaining that "[t]he maxim that equity will not enjoin a criminal prosecution" applies with greatest force in the context of the federal government interfering with state prosecutions).
by Judge Aileen M. Cannon
Donald J. Trump, Plaintiff, v. United States of America, Defendant.
9/5/22
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 22-81294-CIV-CANNON
DONALD J. TRUMP,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
ORDER
THIS CAUSE comes before the Court upon Plaintiff’s Motion for Judicial Oversight and Additional Relief (the "Motion") [ECF No. 1], filed on August 22, 2022. The Court has reviewed the Motion, Plaintiff’s Supplemental Filing [ECF No. 28], the Government’s Response in Opposition [ECF No. 48], Plaintiff’s Reply [ECF No. 58], and the related filings [ECF Nos. 31, 39, 40 (sealed)]. The Court also held a hearing on the Motion on September 1, 2022.
Pursuant to the Court’s equitable jurisdiction and inherent supervisory authority, and mindful of the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented, Plaintiff’s Motion [ECF No. 1] is GRANTED IN PART. The Court hereby authorizes the appointment of a special master to review the seized property for personal items and documents and potentially privileged material subject to claims of attorney- client and/or executive privilege. Furthermore, in natural conjunction with that appointment, and consistent with the value and sequence of special master procedures, the Court also temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order. This Order shall not impede the classification review and/or intelligence assessment by the Office of the Director of National Intelligence ("ODNI") as described in the Government’s Notice of Receipt of Preliminary Order [ECF No. 31 p. 2].
RELEVANT BACKGROUND
The following is a summary of the record based on the parties’ submissions and oral presentation.1 Throughout 2021, former President Donald J. Trump ("Plaintiff") and the National Archives and Records Administration ("NARA") were engaged in conversations concerning records from Plaintiff’s time in office [ECF No. 1 p. 4; ECF No. 48-1 p. 2].2 In January 2021, as a product of those conversations, Plaintiff transferred fifteen boxes (the "Fifteen Boxes") from his personal residence to NARA [ECF No. 1 pp. 4–5; ECF No. 48 p. 5; ECF No. 48-1 p. 6]. Upon initial review of the Fifteen Boxes, NARA identified the items contained therein as newspapers, magazines, printed news articles, photos, miscellaneous printouts, notes, presidential correspondence, personal records, post-presidential records, and classified records [ECF No. 48 p. 5]. NARA subsequently informed the Department of Justice ("DOJ") of the contents of the boxes, claiming that some items contained markings of "classified national security information" [ECF No. 48 p. 5].
On April 12, 2022, NARA notified Plaintiff that it intended to provide the Fifteen Boxes to the Federal Bureau of Investigation ("FBI") the following week [ECF No. 48 p. 5]. Plaintiff then requested an extension on the contemplated delivery so that he could determine the existence of any privileged material [ECF No. 48-1 p. 7]. The White House Counsel’s Office granted the request [ECF No. 48-1 p. 7]. On May 10, 2022, NARA informed Plaintiff that it would proceed with "provid[ing] the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022" [ECF No. 48-1 p. 9]. The Government’s filing states that the FBI did not obtain access to the Fifteen Boxes until approximately May 18, 2022 [ECF No. 48 p. 7].
On May 11, 2022, during the period of ongoing communications between Plaintiff and NARA, and before DOJ received the Fifteen Boxes, DOJ "obtained a grand jury subpoena, for which Plaintiff’s counsel accepted service" [ECF No. 48 pp. 7–8; see ECF No. 1 p. 5]. The subpoena was directed to the "Custodian of Records [for] [t]he Office of Donald J. Trump" and requested "[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings" [ECF No. 48-1 p. 11]. Plaintiff contacted DOJ on June 2, 2022, and requested that FBI agents visit his residence the following day to pick up responsive documents [ECF No. 1 p. 5; ECF No. 48 p. 8]. Upon the FBI’s arrival, Plaintiff’s team handed over documents and permitted the three FBI agents and an accompanying DOJ attorney to visit the storage room where the documents were held [ECF No. 1 pp. 5–6; ECF No. 48 p. 9].
The Government contends that, after further investigation, "the FBI uncovered multiple sources of evidence indicating that the response to the May 11 grand jury subpoena was incomplete," and that potentially classified documents remained at Plaintiff’s residence [ECF No. 48 p. 10]. Based on this evidence and an affidavit that remains partially under seal, on August 5, 2022, the Government applied to a United States Magistrate Judge for a search and seizure warrant of Plaintiff’s residence, citing Title 18, Sections 793, 1519, and 2701 of the United States Code. Finding probable cause for each offense, the Magistrate Judge authorized law enforcement to (1) search Plaintiff’s office, "all storage rooms, and all other rooms or areas within the premises used or available to be used by [Plaintiff] and his staff and in which boxes or documents could be stored," and (2) seize the following: "[a]ny physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes"; "[ i]nformation, including communications in any form, regarding the retrieval, storage, or transmission of national defense information or classified material"; "[a]ny government and/or Presidential records created" during Plaintiff’s presidency; or "[a]ny evidence of the knowing alteration, destruction, or concealment of any government and/or Presidential Records, or of any documents with classification markings." USA v. Sealed Search Warrant, No. 22-08332-MJ-BER-1, ECF No. 17 pp. 3–4 (S.D. Fla. Aug. 11, 2022).
On August 8, 2022, pursuant to the search warrant, the Government executed an unannounced search of Plaintiff’s residence. As reflected in the "Detailed Property Inventory" submitted by the Government in this action, agents seized approximately 11,000 documents and 1,800 other items from the office and storage room [ECF No. 39-1].3 The seized property is generally categorized on the inventory as twenty-seven boxes containing documents, with and without classification markings, along with photographs, other documents, and miscellaneous material [ECF No. 1 pp. 24–26].4
Shortly after the search of the residence, Plaintiff’s counsel spoke with the Government and requested the following: a copy of the affidavit in support of the warrant; the Government’s consent to the appointment of a special master "to protect the integrity of privileged documents"; a detailed list of what was taken from the residence and from where exactly; and an opportunity to inspect the seized property [ECF No. 1 pp. 8–9]. The Government denied those requests [ECF No. 1 p. 9].5
In the absence of any agreement between the parties, on August 22, 2022, Plaintiff filed the Motion for Judicial Oversight and Additional Relief, seeking (1) the appointment of a special master to oversee the review of seized materials regarding identification of personal property and privilege review; (2) the enjoinment of further review of the seized materials until a special master is appointed; (3) a more detailed receipt for property; and (4) the return of any items seized in excess of the search warrant [ECF No. 1 p. 21; ECF No. 28 p. 10].
Following receipt of the Motion, the Court ordered Plaintiff to elaborate on the basis for the Court’s jurisdiction and the relief sought [ECF No. 10]. Plaintiff did so via a Supplement to the Motion on August 26, 2022 [ECF No. 28]. Consistent with Rule 53(b)(1) of the Federal Rules of Civil Procedure, the Court issued a preliminary order indicating its intent to appoint a special master [ECF No. 29]. Shortly thereafter, the Government appeared in this action and filed the Notice of Receipt of Preliminary Order [ECF No. 31]. Plaintiff executed service that same day [ECF No. 32]. The Government then filed under seal the Notice by Investigative Team of Status Review (the "Investigative Team Report") [ECF No. 39], attaching the "Detailed Property Inventory" as ordered by the Court [ECF No. 39-1]. The Investigative Team Report, now fully unsealed, indicates that the Investigative Team has "reviewed the seized materials in furtherance of its ongoing investigation," and that "[t]he seized materials will continue to be used to further the government’s investigation . . . as it takes further investigative steps, such as through additional witness interviews and grand jury practice" [ECF No. 39 p. 2]. While acknowledging that investigators have "already examined every item seized (other than materials that remain subject to the filter protocols)," the Government clarifies that "‘review’ of the seized materials is not a single investigative step but an ongoing process in this active criminal investigation" [ECF No. 39 p. 2]. The Government also states in its Investigative Team Report that DOJ and ODNI are "facilitating a classification review of materials recovered pursuant to the search warrant, and ODNI is leading an intelligence community assessment of the potential risk to national security that would result from disclosure of the seized materials" [ECF No. 39 pp. 2–3]. Additionally, the Government filed under seal its Notice of Status of Privilege Review Team’s Filter Process and Production of Itemized List of Documents Within Privilege Review Team’s Custody (the "Privilege Review Team’s Report") [ECF No. 40 (sealed)]. The Privilege Review Team’s Report remains under seal in accordance with the parties’ joint request at the hearing. This Order refers to the content of that report in general terms.
On August 30, 2022, the Government filed the Response to Plaintiff’s Motion [ECF No. 48], and on August 31, 2022, Plaintiff filed the Reply [ECF No. 58]. The Court then held a hearing on the Motion. This Order follows.
DISCUSSION
I. Jurisdiction
As previewed, Plaintiff initiated this action with a hybrid motion that seeks independent review of the property seized from his residence on August 8, 2022, a temporary injunction on any further review by the Government in the meantime, and ultimately the return of the seized property under Rule 41(g) of the Federal Rules of Criminal Procedure.6 Though somewhat convoluted, this filing is procedurally permissible7 and creates an action in equity. See Richey v. Smith, 515 F.2d 1239, 1245 (5th Cir. 1975) ("[A] motion [for return of property] prior to [a] criminal proceeding[] . . . is more properly considered simply a suit in equity rather than one under the Rules of Criminal Procedure."); In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, 11 F.4th 1235, 1245 n.6 (11th Cir. 2021) ("[Rule 41] is the proper way to come before the court to seek an injunction regarding the government’s use of a filter team to review seized documents."). In other words, to entertain Plaintiff’s requests, the Court first must decide to exercise its equitable jurisdiction, see United States v. Martinez, 241 F.3d 1329, 1330 (11th Cir. 2001), which "derives from the [Court’s] inherent authority" over its officers (including attorneys) and processes, see Hunsucker v. Phinney, 497 F.2d 29, 32 (5th Cir. 1974); Fayemi v. Hambrecht and Quist, Inc., 174 F.R.D. 319, 324 (S.D.N.Y. 1997).8 In general, Rule 41(g) proceedings are "rooted in equitable principles" and served by "flexibility in procedural approach." Smith v. Katzenbach, 351 F.2d 810, 817 (D.C. Cir. 1965).
Importantly, equitable jurisdiction is reserved for "exceptional" circumstances, see Hunsucker, 497 F.2d at 32, and must be "exercised with caution and restraint," Matter of Sixty-Seven Thousand Four Hundred Seventy Dollars ($67,470.00), 901 F.2d 1540, 1544 (11th Cir. 1990). Mindful of its limited power in this domain, the Court endeavors to fulfill its obligations under the law with due care.
***
Upon full consideration of the parties’ arguments and the exceptional circumstances presented, the Court deems the exercise of equitable jurisdiction over this action to be warranted. In making this determination, the Court relies in part on the factors identified in Richey v. Smith. 515 F.2d at 1245.9 In that case, the former Fifth Circuit counseled courts to consider, for equitable jurisdiction purposes, whether the government displayed a callous disregard for the movant’s constitutional rights, whether the movant has an individual interest in and need for the seized property, whether the movant would be irreparably injured by denial of the return of the seized property, and whether the movant otherwise has an adequate remedy at law. Id. (describing these factors as "some of the considerations" that should inform the decision of whether to exercise equitable jurisdiction); see also Mesa Valderrama v. United States, 417 F.3d 1189, 1197 (11th Cir. 2005) (characterizing the Richey factors as guiding considerations). Those factors, although mixed, ultimately counsel in favor of exercising jurisdiction.
With respect to the first factor, the Court agrees with the Government that, at least based on the record to date, there has not been a compelling showing of callous disregard for Plaintiff’s constitutional rights. This factor cuts against the exercise of equitable jurisdiction.
The second factor—whether the movant has an individual interest in and need for the seized property—weighs in favor of entertaining Plaintiff’s requests. According to the Privilege Review Team’s Report, the seized materials include medical documents, correspondence related to taxes, and accounting information [ECF No. 40-2; see also ECF No. 48 p. 18 (conceding that Plaintiff "may have a property interest in his personal effects")]. The Government also has acknowledged that it seized some "[p]ersonal effects without evidentiary value" and, by its own estimation, upwards of 500 pages of material potentially subject to attorney-client privilege [ECF No. 48 p. 16; ECF No. 40 p. 2]. Thus, based on the volume and nature of the seized material, the Court is satisfied that Plaintiff has an interest in and need for at least a portion of it, even if the underlying subsidiary detail as to each item cannot reasonably be determined at this time based on the information provided by the Government to date.10
The same reasoning contributes to the Court’s determination that the third factor—risk of irreparable injury—likewise supports the exercise of jurisdiction. In addition to being deprived of potentially significant personal documents, which alone creates a real harm, Plaintiff faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public.11 Further, Plaintiff is at risk of suffering injury from the Government’s retention and potential use of privileged materials in the course of a process that, thus far, has been closed off to Plaintiff and that has raised at least some concerns as to its efficacy, even if inadvertently so. See infra Discussion III. Finally, Plaintiff has claimed injury from the threat of future prosecution and the serious, often indelible stigma associated therewith. As the Richey court wrote, "a wrongful indictment is no laughing matter; it often works a grievous, irreparable injury to the person indicted. The stigma cannot be easily erased. In the public mind, the blot on a man’s escutcheon, resulting from such a public accusation of wrongdoing, is seldom wiped out by a subsequent judgment of not guilty. Frequently, the public remembers the accusation, and still suspects guilt, even after an acquittal." 515 F.2d at 1244 n.10; see also In the Matter of John Bennett, No. 12-61499-CIV-RSR, ECF No. 22 pp. 26–27 (S.D. Fla. July 23, 2013) (explaining that, although some courts have rejected Richey’s observation as to the harm posed by indictments, Richey remains binding on district courts in the Eleventh Circuit). As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.
As to the fourth Richey factor, Plaintiff has persuasively argued that there is no alternative adequate remedy at law. Without Rule 41(g), Plaintiff would have no legal means of seeking the return of his property for the time being and no knowledge of when other relief might become available. See United States v. Ryan, 402 U.S. 530, 533 (1971) (expressing concern that the denial to consider Rule 41(g) requests "would mean that the Government might indefinitely retain the property without any opportunity for the movant to assert . . . his right to possession"); Harbor Healthcare Sys., L.P. v. United States, 5 F.4th 593, 601 (5th Cir. 2021) (explaining that motions to suppress and motions for return of property serve different functions); United States v. Dean, 80 F.3d 1535, 1542 (11th Cir. 1996), opinion modified on reconsideration, 87 F.3d 1212 (11th Cir. 1996) (making clear that the principle behind the doctrine of equitable jurisdiction—"that the state should not be permitted to deny individuals their property without recourse simply because there is no jurisdiction at law"—applies even when the seizure was lawful).
In combination, these guideposts favor the careful exercise of equitable jurisdiction under the circumstances. This determination is reinforced by the broader landscape of relevant equitable considerations. See generally Di Giovanni v. Camden Fire Ins. Ass’n, 296 U.S. 64, 73 (1935) (explaining that courts’ discretion in the realm of equity "may properly be influenced by considerations of the public interests involved" and the consequences of any grant of relief); Smith, 351 F.2d at 817–18 (elaborating on the breadth and flexibility of equitable considerations); Richey, 515 F.2d at 1245 (noting that the four identified factors are "some of the considerations" that should inform courts’ determinations); Mesa Valderrama, 417 F.3d at 1197 (characterizing the Richey factors as guiding considerations). Hence, the Court takes into account the undeniably unprecedented nature of the search of a former President’s residence; Plaintiff’s inability to examine the seized materials in formulating his arguments to date; Plaintiff’s stated reliance on the customary cooperation between former and incumbent administrations regarding the ownership and exchange of documents; the power imbalance between the parties; the importance of maintaining institutional trust; and the interest in ensuring the integrity of an orderly process amidst swirling allegations of bias and media leaks. Measuring the Richey factors along with all of the other considerations pertinent to a holistic equitable analysis, the scales tip decidedly in favor of exercising jurisdiction.12
The Court pauses briefly to emphasize the limits of this determination. Plaintiff ultimately may not be entitled to return of much of the seized property or to prevail on his anticipated claims of privilege. That inquiry remains for another day. For now, the circumstances surrounding the seizure in this case and the associated need for adequate procedural safeguards are sufficiently compelling to at least get Plaintiff past the courthouse doors.
II. Standing
There is another threshold argument the Court must consider, and that is the Government’s assertion as to Plaintiff’s lack of standing [ECF No. 48 pp. 2, 14–16]. The Government posits that Plaintiff lacks standing to bring a Rule 41(g) action or even to seek a special master, because the seized property consists of "Presidential records" over which Plaintiff lacks a "possessory interest" [ECF No. 48 pp. 14–15]. The Government relies on the definition of "Presidential records" under the Presidential Records Act (the "PRA"), see 44 U.S.C. § 2201(2), and on the Eleventh Circuit’s decision in Howell, 425 F.3d at 974; see supra note 12.
Plaintiff opposes the Government’s standing argument as premature and fundamentally flawed [ECF No. 58 p. 2]. In Plaintiff’s view, what matters now is his authority to seek the appointment of a special master—not his underlying legal entitlement to possess the records or his definable "possessory interest" under Rule 41(g) [ECF No. 58 pp. 4–6]. Moreover, Plaintiff adds, even assuming the Court were inclined at this juncture to consider Plaintiff’s potential claim of unreasonableness under the Fourth Amendment, settled law permits him, as the owner of the premises searched, to object to the seizure as unreasonable [ECF No. 58 pp. 2, 4–6].
Having considered these crisscrossing arguments, the Court concludes that Plaintiff is not barred as a matter of standing from bringing this Rule 41(g) action or from invoking the Court’s authority to appoint a special master more generally. To have standing to bring a Rule 41(g) motion, a movant must allege "a colorable ownership, possessory or security interest in at least a portion of the [seized] property." United States v. Melquiades, 394 F. App’x 578, 584 (11th Cir. 2010) (quoting United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1204 (10th Cir. 2001)). Once that preliminary showing is made, the standing requirement is satisfied, because "[the] owner or possessor of property that has been seized necessarily suffers an injury that can be redressed at least in part by the return of the seized property." United States v. $515,060.42 in U.S. Currency, 152 F.3d 491, 497 (6th Cir. 1998). Contrary to the Government’s reading of Howell, Plaintiff need not prove ownership of the property but rather need only allege facts that constitute a colorable showing of a right to possess at least some of the seized property. Melquiades, 394 F. App’x at 584. Although the Government argues that Plaintiff has no property interest in any of the presidential records seized from his residence, that position calls for an ultimate judgment on the merits as to those documents and their designations. Further, the Government concedes that the seized property includes "personal effects," 520 pages of potentially privileged material, and at least some material that is in fact privileged [ECF No. 48 pp. 15–16]. This is sufficient to satisfy the standing requirement for the Rule 41(g) request and the request for a special master.
See generally United States v. Stewart, No. 02-CR-395, 2002 WL 1300059 (S.D.N.Y. June 11, 2002) (implicitly accepting that a party has standing to seek review by a special master when at least some of the seized materials are privileged); United States v. Abbell, 914 F. Supp. 519 (S.D. Fla. 1995) (same).
III. The Need for Further Review
Having determined that the exercise of jurisdiction is appropriate and that Plaintiff has standing to bring the instant requests, the Court next considers the need for further review of the seized material, as relates to Rule 41(g) and matters of privilege.
Although some of the seized items (e.g., articles of clothing) appear to be readily identifiable as personal property, the parties’ submissions suggest the existence of genuine disputes as to (1) whether certain seized documents constitute personal or presidential records, and (2) whether certain seized personal effects have evidentiary value. Because those disputes are bound up with Plaintiff’s Rule 41(g) request and involve issues of fact, the Court "must receive evidence" from the parties thereon. See Fed. R. Crim. P. 41(g) ("The court must receive evidence on any factual issue necessary to decide the motion."). That step calls for comprehensive review of the seized property.
Review is further warranted, as previewed, for determinations of privilege. The Government forcefully objects, even with respect to attorney-client privilege, pointing out that the Privilege Review Team already has screened the seized property and is prepared to turn over approximately 520 pages of potentially privileged material for court review pursuant to the previously approved ex parte filter protocol [ECF No. 48 p. 14]. In plain terms, the Government’s position is that another round of screening would be "unnecessary" [ECF No. 48 p. 22]. The Court takes a different view on this record.
To begin, the Government’s argument assumes that the Privilege Review Team’s initial screening for potentially privileged material was sufficient, yet there is evidence from which to call that premise into question here. See In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, 11 F.4th at 1249–51; see also Abbell, 914 F. Supp. at 520 (appointing a special master even after the government’s taint attorney already had reviewed the seized material). As reflected in the Privilege Review Team’s Report, the Investigative Team already has been exposed to potentially privileged material. Without delving into specifics, the Privilege Review Team’s Report references at least two instances in which members of the Investigative Team were exposed to material that was then delivered to the Privilege Review Team and, following another review, designated as potentially privileged material [ECF No. 40 p. 6]. Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process.13
The Government’s argument that another round of initial screening is unnecessary also disregards the value added by an outside reviewer in terms of, at a minimum, the appearance of fairness. Even if DOJ filter review teams often pass procedural muster, they are not always perceived to be as impartial as special masters. See In re Search Warrant for L. Offs. Executed on Mar. 19, 1992, 153 F.R.D. 55, 59 (S.D.N.Y. 1994) ("It is a great leap of faith to expect that members of the general public would believe any [wall between a filter review team and a prosecution team] would be impenetrable; this notwithstanding our own trust in the honor of an [Assistant United States Attorney]."). Concerns about the perception of fair process are heightened where, as here, the Privilege Review Team and the Investigation Team contain members from the same section within the same DOJ division, even if separated for direct-reporting purposes on this specific matter. "[P]rosecutors have a responsibility to not only see that justice is done, but to also ensure that justice appears to be done." See In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 183 (4th Cir. 2019), as amended (Oct. 31, 2019). A commitment to the appearance of fairness is critical, now more than ever.14
Though the foregoing analysis focuses on attorney-client privilege, the Court is not convinced that similar concerns with respect to executive privilege should be disregarded in the manner suggested by the Government. The Government asserts that executive privilege has no role to play here because Plaintiff—a former head of the Executive Branch—is entirely foreclosed from successfully asserting executive privilege against the current Executive Branch [ECF No. 48 pp. 24–25]. In the Court’s estimation, this position arguably overstates the law. In Nixon v. Administrator of General Services, 433 U.S. 425 (1977), a case involving review of presidential communications by a government archivist, the Supreme Court expressly recognized that (1) former Presidents may assert claims of executive privilege, id. at 439; (2) "[t]he expectation of the confidentiality of executive communications . . . [is] subject to erosion over time after an administration leaves office," id. at 451; and (3) the incumbent President is "in the best position to assess the present and future needs of the Executive Branch" for purposes of executive privilege, id. at 449. The Supreme Court did not rule out the possibility of a former President overcoming an incumbent President on executive privilege matters. Further, just this year, the Supreme Court noted that, at least in connection with a congressional investigation, "[t]he questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege, are unprecedented and raise serious and substantial concerns." Trump v. Thompson, 142 S. Ct. 680, 680 (2022); see also id. at 680 (Kavanaugh, J., respecting denial of application for stay) ("A former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim. Concluding otherwise would eviscerate the executive privilege for Presidential communications.").15 Thus, even if any assertion of executive privilege by Plaintiff ultimately fails in this context, that possibility, even if likely, does not negate a former President’s ability to raise the privilege as an initial matter. Accordingly, because the Privilege Review Team did not screen for material potentially subject to executive privilege, further review is required for that additional purpose.16
IV. Appointment of a Special Master
An independent special master should conduct the additional review that is warranted here. Rule 53(a) of the Federal Rules of Civil Procedure empowers courts to appoint a special master to "address pretrial . . . matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district." Fed. R. Civ. P. 53(a). Here, as noted, the Government’s inventory reflects a seizure of approximately 11,000 documents and 1,800 other items from Plaintiff’s residence [see ECF No. 39-1]. Considering the volume of seized materials and the parties’ expressed desire for swift resolution of this matter, a special master would be better suited than this Court to conduct the review. The appointment of a special master is not uncommon in the context of attorney-client privilege. See, e.g., In re Search Warrant dated November. 5, 2021, 2021 WL 5845146, at *2; Stewart, 2002 WL 1300059, at *10; Abbell, 914 F. Supp. at 520. Nor is the appointment of a special master unheard of in the context of potentially executive privileged material. In fact, the Government itself recently contemplated and requested the appointment of a special master to review for both attorney-client and executive privilege. See In the Matter of Search Warrants Executed on April 28, 2021, No. 21-00425-MC-JPO, ECF No. 1 (S.D.N.Y. May 4, 2021) ("[ u]nder certain exceptional circumstances, the appointment of a special master to review materials seized from an attorney may be appropriate. Those circumstances may exist where . . . the attorney represents the President of the United States such that any search may implicate not only the attorney-client privilege but the executive privilege."). Most importantly, courts recognize that special masters uniquely promote "the interests and appearance of fairness and justice." United States v. Gallego, No. CR-18-01537-001, 2018 WL 4257967, at *3 (D. Ariz. Sept. 6, 2018); see also In re Search Warrants Executed on April 28, 2021, No. 21-MC-425 (JPO), 2021 WL 2188150, at *4 (S.D.N.Y. May 28, 2021) ("The Court agrees that the appointment of a special master is warranted here to ensure the perception of fairness."). Special effort must be taken to further those ends here.
V. Temporary Injunctive Relief
As a final matter, the Court determines that a temporary injunction on the Government’s use of the seized materials for investigative purposes—but not ODNI’s national security assessment—is appropriate and equitable to uphold the value of the special master review.17 It is not entirely clear whether courts must perform an additional analysis under Rule 65 of the Federal Rules of Civil Procedure in this context, seeing as how a temporary restraint on use naturally furthers and complements the appointment of a special master. See, e.g., Stewart, 2002 WL 1300059, at *10 (instructing the government not to review the seized documents pending further instruction). To appoint a special master to make privilege determinations while simultaneously allowing the Government, in the interim, to continue using potentially privileged material for investigative purposes would be to ignore the pressing concerns and hope for the best.18 Moreover, many courts that have explicitly issued injunctions relating to special master review have done so without discussing Rule 65. See USA v. Gallego et al, No. 18-01537-CR-RM-BGM-1, ECF Nos. 26, 36 (Aug. 9 & 10, 2018). In any event, the Government reasonably maintains (without objection from Plaintiff) that the Court must engage with Rule 65, and so for the sake of completeness and prudence, the Court proceeds accordingly.19
Rule 65 recognizes the power of courts to issue injunctive relief. Such relief is considered "extraordinary," and to obtain it, a movant must "clearly carr[y] the burden of persuasion" as to the following factors: (1) a substantial likelihood of success on the merits; (2) irreparable injury unless the injunction is issued; (3) the threatened injury to the movant outweighs whatever damage the injunction may cause to the opposing party; and (4) the injunction would not be adverse to the public interest. United States v. Jefferson Cnty., 720 F.2d 1511, 1519 (11th Cir. 1983) (quoting Canal Authority v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974)). "When the government is the opposing party, as it is here, the third and fourth factors merge." Georgia v. President of the United States, No. 21-14269, 2022 WL 3703822, at *3 (11th Cir. Aug. 26, 2022).
As discussed above, see supra Discussion III, the Court is satisfied that Plaintiff has "a likelihood of success on the merits of [his] challenge to the [Privilege Review Team] and its [p]rotocol." In re Search Warrant Issued June 13, 2019, 942 F.3d at 171; see also In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, 11 F.4th at 1248–49 (assessing "likelihood of success on the merits" in terms of the sufficiency of the filter team’s review). For the same reasons—chiefly, the risk that the Government’s filter review process will not adequately safeguard Plaintiff’s privileged and personal materials in terms of exposure to either the Investigative Team or the media—Plaintiff has sufficiently established irreparable injury.
With regard to the injury factor, the Government contends that the timing of the Motion—filed two weeks after the subject seizure occurred—"militates against a finding of irreparable harm" [ECF No. 48 p. 20 (quoting Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1248 (11th Cir. 2016))]. The Court disagrees. As the Government acknowledges, denials of injunctive relief based on a party’s delay usually arise in the context of considerably longer periods of time than the fourteen-day span implicated here. Wreal, 840 F.3d at 1244, 1248. Nor has the Government offered any authority denying injunctive relief on the basis of a two-week span. On the contrary, courts have held that delays of two or three weeks are not sufficiently long to undercut a showing of irreparable harm. See, e.g., Tom Doherty Assocs. v. Saban Ent, Inc., 60 F.3d 27, 39–40 (2d Cir. 1995); Fisher-Price Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 125 (2d Cir. 1994), abrogated on other grounds by Belair v. MGA Ent., Inc., 503 F. App’x 65 (2d Cir. 2021). The Government thus is left to suggest that two weeks, perhaps ordinarily acceptable, is too long here because requests for special masters to review privileged material are typically made on a more expedited basis [ECF No. 48 pp. 20–21]. On balance, the Court is not persuaded. It is undisputed that Plaintiff’s counsel attempted to resolve Plaintiff’s request for a special master and other relief informally with the Government almost immediately after the search, without judicial intervention [see ECF No. 1 pp. 8–9]. In view of Plaintiff’s timely attempt toward a negotiated resolution of this issue, along with Plaintiff’s inability to know the extent of what was seized, the Court is satisfied that Plaintiff did not "slumber[] on [his] rights." In re Search Warrant Issued June 13, 2019, 942 F.3d at 182. While Plaintiff perhaps did not act as promptly as he could have, the two-week delay does not now preclude Plaintiff from seeking or being entitled to injunctive relief.
Lastly, with respect to the merged third and fourth factors, Plaintiff has shown, all in all, that the public and private interests at stake support a temporary enjoinment on the use of the seized materials for investigative purposes, without impacting the Government’s ongoing national security review. As Plaintiff articulated at the hearing, the investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness. See supra Discussion III–IV; see also In re Search Warrant Issued June 13, 2019, 942 F.3d at 182 ("[A]n award of injunctive relief in these circumstances supports the ‘strong public interest’ in the integrity of the judicial system." (quoting United States v. Hasting, 461 U.S. 499, 527 (1983) (Brennan, J., concurring in part and dissenting in part))). The Government’s principal objection is that an injunction pending resolution of the special master’s review would delay the associated criminal investigation and national security risk assessment [ECF No. 48 pp. 29–30]. With respect to the referenced national security concerns, the Court understands and does not impact that component. But with respect to the Government’s ongoing criminal investigation, the Court does not find that a temporary special master review under the present circumstances would cause undue delay.20 "[E]fficient criminal investigations are certainly desirable," In re Search Warrant Issued June 13, 2019, 942 F.3d at 181, but so too are countervailing considerations of fair process and public trust. "[T]he [G]overnment chose to proceed by securing a search warrant for [the former President’s home and office] and seeking and obtaining [a] magistrate judge’s approval of the [f]ilter [p]rotocol. The [G]overnment should have been fully aware that use of a filter team in these circumstances was ripe for substantial legal challenges, and should have anticipated that those challenges could delay its investigations." In re Search Warrant Issued June 13, 2019, 942 F.3d at 181. None of this should be read to minimize the importance of investigating criminal activity or to indicate anything about the merits of any future court proceeding.
For all of these reasons, upon full consideration of the Rule 65 factors, the Court determines that a temporary injunction on the Government’s use of the seized materials for criminal investigative purposes pending resolution of the special master’s review process is warranted. The Court is mindful that restraints on criminal prosecutions are disfavored21 but finds that these unprecedented circumstances call for a brief pause to allow for neutral, third-party review to ensure a just process with adequate safeguards.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1. A special master shall be APPOINTED to review the seized property, manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property. The exact details and mechanics of this review process will be decided expeditiously following receipt of the parties’ proposals as described below.
2. The Government is TEMPORARILY ENJOINED from further review and use of any of the materials seized from Plaintiff’s residence on August 8, 2022, for criminal investigative purposes pending resolution of the special master’s review process as determined by this Court. The Government may continue to review and use the materials seized for purposes of intelligence classification and national security assessments.
3. On or before September 9, 2022, the parties shall meaningfully confer and submit a joint filing that includes: a. a list of proposed special master candidates; and b. a detailed proposed order of appointment in accordance with Rule 53(b), outlining, inter alia, the special master’s duties and limitations consistent with this Order, ex parte communication abilities, schedule for review, and compensation.
4. Any points of substantive disagreement as to 3(a) or (b) should be identified in the forthcoming joint filing.
5. The Court RESERVES RULING on Plaintiff’s request for return of property pending further review.
6. This Order is subject to modification as appropriate.
DONE AND ORDERED in Chambers at Fort Pierce, Florida this 5th day of September 2022.
_________________________________
AILEEN M. CANNON
UNITED STATES DISTRICT JUDGE
cc: counsel of record
_______________
Notes:
1 Neither party requested an evidentiary hearing on the Motion, and under the circumstances, the Court finds resolution of the Motion sufficient and prudent on the present record.
2 NARA is an independent federal agency within the Executive Branch that is responsible for the preservation and documentation of government and historical records.
3 These figures are drawn collectively from the Government’s Detailed Property Inventory [ECF No. 39-1].
4 Based on the Detailed Property Inventory, of the approximately 11,000 documents seized, roughly 100 contain classification markings [ECF No. 39-1 pp. 2–8].
5 The exact date of that conversation is unclear, but all agree that the conversation took place soon after the search. Plaintiff references August 11, 2022, in the Motion, three days after the search (and eleven days prior to the filing of the Motion). The Government does not offer a different view in its Response or otherwise challenge the substance of the rejected requests. Counsel for the Government stated during the hearing that Plaintiff’s request for a special master was rejected on August 9, 2022, the morning after the search.
6 Prior to 2002, what is now Rule 41(g) was codified as Rule 41(e). "[E]arlier cases interpreting Rule 41(e) also apply to the new Rule 41(g)." United States v. Garza, 486 F. App’x 782, 784 n.3 (11th Cir. 2012); see De Almeida v. United States, 459 F.3d 377, 380 n.2 (2d Cir. 2006).
7 Rule 41(g) allows movants, prior to the return of an indictment, to initiate standalone actions "in the district where [their] property was seized." See Fed. R. Crim. P. 41(g); United States v. Wilson, 540 F.2d 1100, 1104 (D.C. Cir. 1976) ("Property which is seized . . . either by search warrant or subpoena may be ultimately disposed of by the court in that proceeding or in a subsequent civil action."); In the Matter of John Bennett, No. 12-61499-CIV-RSR, ECF No. 1 (S.D. Fla. July 31, 2012) (initiating an action with a "petition to return property"); see also In re Grand Jury Investigation of Hugle, 754 F.2d 863, 865 (9th Cir. 1985) ("[A] court is not required to defer relief [relating to privileged material] until after issuance of the indictment.").
8 To the extent the Motion seeks relief totally distinct from the return of property itself, the Motion invokes the Court’s inherent supervisory authority directly. See generally Gravel v. United States, 408 U.S. 606, 628 (1972); In the Matter of Search Warrants Executed on April 28, 2021, No. 21-00425-MC-JPO, ECF No. 1 (S.D.N.Y. May 4, 2021) (the government initiating a new action by requesting that the Court, pursuant to its supervisory authority, appoint a special master to conduct filter review of materials potentially subject to attorney-client privilege and/or executive privilege).
9 In Bonner v. City of Prichard, 661 F.2d 1206, 1209–11 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
10 To the extent the Government challenges Plaintiff’s standing to bring this action, the Court addresses that argument below. See infra Discussion II.
11 When asked about the dissemination to the media of information relative to the contents of the seized records, Government’s counsel stated that he had no knowledge of any leaks stemming from his team but candidly acknowledged the unfortunate existence of leaks to the press.
12 At the hearing, the Government argued that the equitable concept of "unclean hands" bars Plaintiff from moving under Rule 41(g), citing United States v. Howell, 425 F.3d 971, 974 (11th Cir. 2005) ("[I]n order for a district court to grant a Rule 41(g) motion, the owner of the property must have clean hands."). Howell involved a defendant who pled guilty to conspiring to distribute cocaine and then sought the return of $140,000 in government-issued funds that were seized from him following a drug sale to a confidential source. Id. at 972–73. That case is not factually analogous to the circumstances presented and does not provide a basis to decline to exercise equitable jurisdiction here. Plaintiff has not pled guilty to any crimes; the Government has not clearly explained how Plaintiff’s hands are unclean with respect to the personal materials seized; and in any event, this is not a situation in which there is no room to doubt the immediately apparent incriminating nature of the seized material, as in the case of the sale of cocaine.
13 In explaining these incidents at the hearing, counsel from the Privilege Review Team characterized them as examples of the filter process working. The Court is not so sure. These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material. The Government’s other explanation—that these instances were the result of adopting an overinclusive view of potentially privileged material out of an abundance of caution—does not satisfy the Court either. Even accepting the Government’s untested premise, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the Investigative Team. Perhaps most concerning, the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team [see ECF No. 40]. In sum, without drawing inferences, there is a basis on this record to question how materials passed through the screening process, further underscoring the importance of procedural safeguards and an additional layer of review. See, e.g., In re Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006) ("In United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), for instance, the government’s taint team missed a document obviously protected by attorney-client privilege, by turning over tapes of attorney-client conversations to members of the investigating team. This Noriega incident points to an obvious flaw in the taint team procedure: the government’s fox is left in charge of the appellants’ henhouse, and may err by neglect or malice, as well as by honest differences of opinion.").
14 The Government implies that additional independent review for attorney-client privilege, such as by a special master, is appropriate only when a search of a law firm occurred [ECF No. 48 pp. 30–32]. Whatever the extent of this argument, it fails decisively here. True, special masters ordinarily arise in the more traditional setting of law firms and attorneys’ offices. But the Court does not see why these concerns would not apply, at least to a considerable degree, to the office and home of a former president. Moreover, at least one other court has authorized additional independent review for attorney-client privilege outside of the law firm context, in politicized circumstances. See In re Search Warrant dated November 5, 2021, No. 21-Misc-813, 2021 WL 5845146, at *1 (S.D.N.Y. Dec. 8, 2021) (appointing a special master to conduct review of materials seized from the homes of employees of Project Veritas for potentially attorney-client privileged materials).
15 On the current record, having been denied an opportunity to inspect the seized documents, Plaintiff has not formally asserted executive privilege as to any specific materials, nor has the incumbent President upheld or withdrawn such an assertion.
16 The Court recognizes that, under the PRA, "[t]he United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist" to permit public dissemination of presidential records "violates the former President’s [constitutional] rights or privileges." 44 U.S.C. § 2204.
17 Although the Motion asks the Court to enjoin the Government’s review of the seized materials pending the appointment of a special master, it is clear that this request is meant to cover the Government’s temporary use of the seized materials and extend into the special master’s review process as appropriate. Any uncertainty on this point was clarified by Plaintiff’s presentation at the hearing. See United States v. Potes Ramirez, 260 F.3d 1310, 1315 (11th Cir. 2001) ("In the context of Rule 41[(g)] motions, several circuit courts have remarked on a district court’s authority to fashion an equitable remedy[] when appropriate . . . .").
Judge Cannon went to lengths to allow Mr. Trump’s legal team to clarify its argument after an initial filing that was too vague. During a hearing in the Trump case last week, she also seemed to help one of Mr. Trump’s lawyers remember that his client’s request for a special master included not only to review documents under attorney-client privilege but also to assess any that could be covered under executive privilege.
-- Trump Ruling Lifts Profile of Judge and Raises Legal Eyebrows: Judge Aileen M. Cannon has issued the first highly scrutinized ruling of her short judicial career, involving the person who put her on the bench: former President Donald J. Trump, by Patricia Mazzei, Maggie Haberman and Alan Feuer
18 Even without a temporary injunction as described herein, the Court would exercise its discretion to appoint a special master despite the considerably diminished utility of such an appointment.
19 Because this part of the Order relies on much of the same reasoning articulated above, the Court uses internal cross-references where appropriate to minimize repetition.
20 The Government represents that it completed a preliminary review of the seized property in approximately three weeks [ECF Nos. 39, 40].
21 See Younger v. Harris, 401 U.S. 37, 43–44 (1971) ("[C]ourts of equity should not . . . act to restrain a criminal prosecution[] when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief."); Stefanelli v. Minard, 342 U.S. 117, 120 (1951) (explaining that "[t]he maxim that equity will not enjoin a criminal prosecution" applies with greatest force in the context of the federal government interfering with state prosecutions).
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Tue Sep 06, 2022 10:45 pm
‘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.
by Charlie Savage
New York Times
Published Sept. 5, 2022
Updated Sept. 6, 2022, 12:49 p.m. ET
NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT
WASHINGTON — A federal judge’s extraordinary decision on Monday to interject in the criminal investigation into former President Donald J. Trump’s hoarding of sensitive government documents at his Florida residence showed unusual solicitude to him, legal specialists said.
This was “an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation,” said Stephen I. Vladeck, a law professor at University of Texas.
Siding with Mr. Trump, the judge, Aileen M. Cannon, ordered the appointment of an independent arbiter to review the more than 11,000 government records the F.B.I. seized in its search of Mar-a-Lago last month. She granted the arbiter, known as a special master, broad powers that extended beyond filtering materials that were potentially subject to attorney-client privilege to also include executive privilege.
Judge Cannon, a Trump appointee who sits on the Federal District Court for the Southern District of Florida, also blocked federal prosecutors from further examining the seized materials for the investigation until the special master had completed a review.
In reaching that result, Judge Cannon took several steps that specialists said were vulnerable to being overturned if the government files an appeal, as most agreed was likely. Any appeal would be heard by the Court of Appeals for the 11th Circuit in Atlanta, where Mr. Trump appointed six of its 11 active judges.
Paul Rosenzweig, a former homeland security official in the George W. Bush administration and prosecutor in the independent counsel investigation of Bill Clinton, said it was egregious to block the Justice Department from steps like asking witnesses about government files, many marked as classified, that agents had already reviewed.
“This would seem to me to be a genuinely unprecedented decision by a judge,” Mr. Rosenzweig said. “Enjoining the ongoing criminal investigation is simply untenable.”
Born in Colombia in 1981, Judge Cannon graduated from Duke University in 2003 and the University of Michigan Law School in 2007. After clerking for a Republican-appointed appeals court judge in Iowa, she worked as an associate for a corporate law firm for three years before becoming an assistant federal prosecutor in Florida.
In her Senate questionnaire, she described herself as having been a member of the conservative Federalist Society since 2005. Mr. Trump nominated her in May 2020, and the Senate confirmed her on Nov. 12, nine days after he lost re-election.
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.
The Justice Department is itself part of the executive branch, and a court has never held that a former president can invoke the privilege to keep records from his time in office away from the executive branch itself.
The department had argued that even if a special master were appointed, there would be no legal basis for that person to examine issues of executive privilege. It cited a 1977 Supreme Court case involving the papers of former President Richard M. Nixon, who had tried to use executive privilege to shield them even though the sitting president disagreed.
But Judge Cannon wrote that she was not convinced and believed the Justice Department’s stance “arguably overstates the law.” In that case, she said, the Supreme Court also stated that former presidents retained some residual power to invoke executive privilege.
The Supreme Court also said the incumbent officeholder is in the best position to assess such issues. But Judge Cannon wrote that the justices had not “ruled out the possibility” that a former president could ever prevail over the current one.
“Even if any assertion of executive privilege by plaintiff ultimately fails in this context,” she wrote, “that possibility, even if likely, does not negate a former president’s ability to raise the privilege as an initial matter.”
She did not address a 1974 Supreme Court case that upheld the Watergate prosecutor’s demand for White House tapes as part of a criminal investigation despite the attempt by Mr. Nixon, then the sitting president, to block it by asserting executive privilege.
“Even if there is some hypothetical situation in which a former president could shield his or her communications from the current executive branch,” Mr. Shane said, “they would not be able to do so in the context of a criminal investigation — and certainly not after the material has been seized pursuant to a lawful search warrant.”
Judge Cannon allowed a separate review of the documents, by the Office of the Director of National Intelligence, to continue. It is assessing the risk to national security that the insecure holding of sensitive documents at Mar-a-Lago may have caused.
David Alan Sklansky, a Stanford University law professor, said he was glad that work had been allowed to continue given its importance. But he said there was an inherent contradiction in allowing the executive branch to use the files for that purpose while blocking it from using them for an active criminal investigation.
“There is this odd situation where one part of the executive branch can use the materials and another not,” he said.
In reasoning that she had a basis to install a special master, Judge Cannon relied heavily on a 1975 appeals court ruling. It held that courts had jurisdiction to decide whether to order the I.R.S. to return a businessman’s records that he claimed had been taken unlawfully, and laid out a multipronged test for such situations.
One part of the test is whether the government had displayed a “callous disregard” for the constitutional rights of the person subjected to the search. On that issue, she sided with the Justice Department, which had obtained a warrant from a magistrate judge.
But she said the other parts of the test favored Mr. Trump. They included whether he had an individual interest in and need for the seized property, would be “irreparably harmed” by a denial of that request and lacked any other remedy.
While Mr. Trump does not own the government documents he repeatedly failed to return, the warrant permitted the F.B.I. to take anything else of his that he had left in the same containers as evidence of how he stored sensitive information.
Judge Cannon noted that a department report said this had included “medical documents, correspondence related to taxes and accounting information.”
“In addition to being deprived of potentially significant personal documents, which alone creates a real harm,” she wrote, Mr. Trump faced “an unquantifiable potential harm by way of improper disclosure of sensitive information to the public.” A footnote insinuated that the Justice Department might leak those files to reporters.
In weighing such factors, she emphasized Mr. Trump’s status as a former president.
“As a function of plaintiff’s former position as president of the United States, the stigma associated with the subject seizure is in a league of its own,” she wrote. “A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.”
Ronald S. Sullivan Jr., a Harvard Law School professor, said anyone targeted by a search warrant fears reputational harm, but that does not mean they can get special masters appointed. He called Judge Cannon’s reasoning “thin at best” and giving “undue weight” to the fact that Mr. Trump is a former president.
“I find that deeply problematic,” he said, emphasizing that the criminal justice system was supposed to treat everyone equally. “This court is giving special considerations to the former president that ordinary, everyday citizens do not receive.”
Samuel W. Buell, a Duke University law professor, agreed.
“To any lawyer with serious federal criminal court experience who is being honest, this ruling is laughably bad, and the written justification is even flimsier,” he wrote in an email. “Donald Trump is getting something no one else ever gets in federal court, he’s getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he is being persecuted, when he is being privileged.”
by Charlie Savage
New York Times
Published Sept. 5, 2022
Updated Sept. 6, 2022, 12:49 p.m. ET
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WASHINGTON — A federal judge’s extraordinary decision on Monday to interject in the criminal investigation into former President Donald J. Trump’s hoarding of sensitive government documents at his Florida residence showed unusual solicitude to him, legal specialists said.
This was “an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation,” said Stephen I. Vladeck, a law professor at University of Texas.
Siding with Mr. Trump, the judge, Aileen M. Cannon, ordered the appointment of an independent arbiter to review the more than 11,000 government records the F.B.I. seized in its search of Mar-a-Lago last month. She granted the arbiter, known as a special master, broad powers that extended beyond filtering materials that were potentially subject to attorney-client privilege to also include executive privilege.
Judge Cannon, a Trump appointee who sits on the Federal District Court for the Southern District of Florida, also blocked federal prosecutors from further examining the seized materials for the investigation until the special master had completed a review.
In reaching that result, Judge Cannon took several steps that specialists said were vulnerable to being overturned if the government files an appeal, as most agreed was likely. Any appeal would be heard by the Court of Appeals for the 11th Circuit in Atlanta, where Mr. Trump appointed six of its 11 active judges.
Paul Rosenzweig, a former homeland security official in the George W. Bush administration and prosecutor in the independent counsel investigation of Bill Clinton, said it was egregious to block the Justice Department from steps like asking witnesses about government files, many marked as classified, that agents had already reviewed.
“This would seem to me to be a genuinely unprecedented decision by a judge,” Mr. Rosenzweig said. “Enjoining the ongoing criminal investigation is simply untenable.”
Born in Colombia in 1981, Judge Cannon graduated from Duke University in 2003 and the University of Michigan Law School in 2007. After clerking for a Republican-appointed appeals court judge in Iowa, she worked as an associate for a corporate law firm for three years before becoming an assistant federal prosecutor in Florida.
In her Senate questionnaire, she described herself as having been a member of the conservative Federalist Society since 2005. Mr. Trump nominated her in May 2020, and the Senate confirmed her on Nov. 12, nine days after he lost re-election.
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.
The Justice Department is itself part of the executive branch, and a court has never held that a former president can invoke the privilege to keep records from his time in office away from the executive branch itself.
The department had argued that even if a special master were appointed, there would be no legal basis for that person to examine issues of executive privilege. It cited a 1977 Supreme Court case involving the papers of former President Richard M. Nixon, who had tried to use executive privilege to shield them even though the sitting president disagreed.
But Judge Cannon wrote that she was not convinced and believed the Justice Department’s stance “arguably overstates the law.” In that case, she said, the Supreme Court also stated that former presidents retained some residual power to invoke executive privilege.
The Supreme Court also said the incumbent officeholder is in the best position to assess such issues. But Judge Cannon wrote that the justices had not “ruled out the possibility” that a former president could ever prevail over the current one.
“Even if any assertion of executive privilege by plaintiff ultimately fails in this context,” she wrote, “that possibility, even if likely, does not negate a former president’s ability to raise the privilege as an initial matter.”
She did not address a 1974 Supreme Court case that upheld the Watergate prosecutor’s demand for White House tapes as part of a criminal investigation despite the attempt by Mr. Nixon, then the sitting president, to block it by asserting executive privilege.
“Even if there is some hypothetical situation in which a former president could shield his or her communications from the current executive branch,” Mr. Shane said, “they would not be able to do so in the context of a criminal investigation — and certainly not after the material has been seized pursuant to a lawful search warrant.”
Judge Cannon allowed a separate review of the documents, by the Office of the Director of National Intelligence, to continue. It is assessing the risk to national security that the insecure holding of sensitive documents at Mar-a-Lago may have caused.
David Alan Sklansky, a Stanford University law professor, said he was glad that work had been allowed to continue given its importance. But he said there was an inherent contradiction in allowing the executive branch to use the files for that purpose while blocking it from using them for an active criminal investigation.
“There is this odd situation where one part of the executive branch can use the materials and another not,” he said.
In reasoning that she had a basis to install a special master, Judge Cannon relied heavily on a 1975 appeals court ruling. It held that courts had jurisdiction to decide whether to order the I.R.S. to return a businessman’s records that he claimed had been taken unlawfully, and laid out a multipronged test for such situations.
One part of the test is whether the government had displayed a “callous disregard” for the constitutional rights of the person subjected to the search. On that issue, she sided with the Justice Department, which had obtained a warrant from a magistrate judge.
But she said the other parts of the test favored Mr. Trump. They included whether he had an individual interest in and need for the seized property, would be “irreparably harmed” by a denial of that request and lacked any other remedy.
While Mr. Trump does not own the government documents he repeatedly failed to return, the warrant permitted the F.B.I. to take anything else of his that he had left in the same containers as evidence of how he stored sensitive information.
Judge Cannon noted that a department report said this had included “medical documents, correspondence related to taxes and accounting information.”
“In addition to being deprived of potentially significant personal documents, which alone creates a real harm,” she wrote, Mr. Trump faced “an unquantifiable potential harm by way of improper disclosure of sensitive information to the public.” A footnote insinuated that the Justice Department might leak those files to reporters.
In weighing such factors, she emphasized Mr. Trump’s status as a former president.
“As a function of plaintiff’s former position as president of the United States, the stigma associated with the subject seizure is in a league of its own,” she wrote. “A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.”
Ronald S. Sullivan Jr., a Harvard Law School professor, said anyone targeted by a search warrant fears reputational harm, but that does not mean they can get special masters appointed. He called Judge Cannon’s reasoning “thin at best” and giving “undue weight” to the fact that Mr. Trump is a former president.
“I find that deeply problematic,” he said, emphasizing that the criminal justice system was supposed to treat everyone equally. “This court is giving special considerations to the former president that ordinary, everyday citizens do not receive.”
Samuel W. Buell, a Duke University law professor, agreed.
“To any lawyer with serious federal criminal court experience who is being honest, this ruling is laughably bad, and the written justification is even flimsier,” he wrote in an email. “Donald Trump is getting something no one else ever gets in federal court, he’s getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he is being persecuted, when he is being privileged.”
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United States Senate Committee on the Judiciary Questionnaire for Judicial Nominees, Public
Aileen Mercedes Cannon
1. Name: State full name (include any former names used).
Aileen Mercedes Cannon
2. Position: State the position for which you have been nominated.
United States District Judge for the Southern District of Florida
3. Address: List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.
United States Attorney's Office for the Southern District of Florida
101 South U.S. Highway 1, Suite 3046
Fort Pierce, Florida 34950
Residence:
Vero Beach, Florida
4. Birthplace: State year and place of birth.
1981; Cali, Colombia
5. Education: List in reverse chronological order each college, law school, or any other
institution of higher education attended and indicate for each the dates of attendance,
whether a degree was received, and the date each degree was received.
2005 - 2007, The University of Michigan Law School; J.D. (magna cum laude), 2007
1999 - 2003, Duke University; B.A., 2003
Fall 2001, University of Seville, Seville, Spain; no degree
6. Employment Record: List in reverse chronological order all governmental agencies,
business or professional corporations, companies, firms, or other enterprises,
partnerships, institutions or organizations, non-profit or otherwise, with which you have
been affiliated as an officer, director, partner, proprietor, or employee since graduation
from college, whether or not you received payment for your services. Include the name
and address of the employer and job title or description.
2013 - Present
United States Attorney's Office for the Southern District of Florida
101 South U.S. Highway 1, Suite 3046
Fort Pierce, Florida 34950
Assistant United States Attorney
2009 - 2012
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Associate Attorney
2008 -2009
Honorable Steven M. Colloton
United States Court of Appeals for the Eighth Circuit
110 East Court Avenue
Des Moines, Iowa 50309
Law Clerk
2007
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Summer Associate
2006,2007
Squire Sanders LLP (now Squire Patton Boggs)
200 South Biscayne Boulevard, Suite 4700
Miami, Florida 33131
Summer Associate
2003 - 2005
U.S. Department of Justice
Civil Rights Division, Criminal Section
601 D Street, N.W.
Washington, D.C. 20579
Paralegal Specialist
7. Military Service and Draft Status: Identify any service in the U.S. Military, including
dates of service, branch of service, rank or rate, serial number (if different from social
security number) and type of discharge received, and whether you have registered for
selective service.
I have not served in the U.S. military. I was not required to register for selective service.
8. Honors and Awards: List any scholarships, fellowships, honorary degrees, academic or
2
professional honors, honorary society memberships, military awards, and any other
special recognition for outstanding service or achievement.
Certificate of Appreciation recognizing achievement in us. v. Gibbs, 917 F.3d 1289
(11th Cir. 2019), United States Attorney's Office for the Southern District of Florida
(2019)
Timothy Evans Award recognizing achievement in 28 U.S.C. §§ 2255(e) and 2241
litigation, United States Attorney's Office for the Southern District of Florida (2017)
"A-Team" Award for "Truly Exceptional Achievement & Merit" in post-conviction
litigation following Johnson v. Us., 135 S. Ct. 2551 (2015), United States Attorney's
Office for the Southern District of Florida (2017)
"A-Team" Award for "Truly Exceptional Achievement & Merit" in securing affirmance
on appeal of fraud and money laundering convictions in Us. v. Anthony Livoti, 756 F.
App'x 841 (11th Cir. 2018), United States Attorney's Office for the Southern District of
Florida (2016)
J.D. degree conferred magna cum laude, The University of Michigan Law School (2007)
Inducted into Order of the Coif Honor Society, The University of Michigan Law School,
(2007)
Quarterfinalist, Henry Campbell Moot Court Competition, The University of Michigan
Law School (2007)
The University of Michigan Journal of Law Reform, Articles and Associate Editor
(2006 - 2007)
Dean's List distinction for five semesters, Duke University (2000 - 2003)
9. Bar Associations: List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you are or have been a member, and give the
titles and dates of any offices which you have held in such groups.
None.
10. Bar and Court Admission:
a. List the date( s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.
California, 2008
District of Columbia, 2009
Florida, 2012
3
In 2011, I voluntarily changed my membership status in the California Bar from
active to inactive status because I was not practicing law in California and did not
have plans to do so. In 2019, I voluntarily resigned my membership in the D.C.
Bar in good standing because I was licensed to practice law in Florida and did not
have plans to practice in D.C. In the Florida Bar, I inadvertently missed the
October 1,2015, deadline for payment of annual dues while I was on maternity
leave with my second child. I realized my mistake when I returned to work in
January 2016 and took immediate action to rectify the oversight. I informed the
Florida Bar, paid the required dues, and submitted a petition for reinstatement and
waiver of late fees. The petition was approved. Other than that, there have been
no lapses in membership.
b. List all courts in which you have been admitted to practice, including dates of
admission and any lapses in membership. Please explain the reason for any lapse
in membership. Give the same information for administrative bodies that require
special admission to practice.
United States Court of Appeals for the Eighth Circuit (2009)
United States Court of Appeals for the Eleventh Circuit (2013)
United States Court of Federal Claims (2011)
United States District Court for the Southern District of Florida (2013)
There have been no lapses in membership.
11. Memberships:
a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 9 or 10 to which
you belong, or to which you have belonged, since graduation from law school.
Provide dates of membership or participation, and indicate any office you held.
Include clubs, working groups, advisory or editorial boards, panels, committees,
conferences, or publications.
Delta Delta Delta Fraternity (2000 - Present)
Duke University Alumni Association (2003 - Present)
The Federalist Society (2005 - Present)
The Moorings Yacht & Country Club (2019 - Present)
Order of the Coif, The University of Michigan Law School (2007 - Present)
The University of Michigan Law School Alumni Association (2008 - Present)
4
b. The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any organization
that invidiously discriminates on the basis of race, sex, or religion, or national
origin. Indicate whether any of these organizations listed in response to 11 a above
currently discriminate or formerly discriminated on the basis of race, sex, religion
or national origin either through formal membership requirements or the practical
implementation of membership policies. If so, describe any action you have taken
to change these policies and practices.
Delta Delta Delta fraternity is a panhellenic women's organization that limits its
membership to women. There were no formal membership exclusions based on
race, but the first African-American woman was not admitted as a member until
the early 1960s. Delta Delta Delta was the first fraternity in the National
Panhellenic Council to enact an official non-discrimination policy, which includes
race, and as a member of Delta Delta Delta, I have never witnessed or
experienced any racially discriminatory conduct of any kind.
Except as set forth above, to the best of my knowledge, none of the organizations
listed in response to Question 1 I (a) currently discriminates or formerly
discriminated on the basis of race, sex, religion, or national origin, either through
formal membership requirements or the practical implementation of membership
policies.
12. Published Writings and Public Statements:
a. List the titles, publishers, and dates of books, articles, reports, letters to the editor,
editorial pieces, or other published material you have written or edited, including
material published only on the Internet. Supply four (4) copies of all published
material to the Committee.
With John Sturc, David Burns, John Chesley, Gibson Dunn Persuades SEC to
Dismiss Proceedings Against Former General Counsel of Ferris Baker Watts,
Gibson Dunn Website, Jan. 26,2012. Copy supplied.
With Barry Goldsmith, David Debold, and Geoff Weien, Gibson Dunn Wins
Unanimous Dismissal of Fraud Charges in Auction Rate Securities Case, Gibson
Dunn Website, Nov. 8,2011. Copy supplied.
With John Sturc, David Burns, John Chesley, Gibson Dunn Secures Significant
Dismissal in Litigated SEC Administrative Proceeding, Gibson Dunn Website,
Sept. 8,2010. Copy supplied.
Puede que el tomate reduzca tumors (English translation: Tomatoes May Help Reduce Tumors), El Nuevo Herald, Aug. 20, 2002, at C4. Copy supplied.
Un libro fecundo sobre la esterilidad (English translation: A Fertile Book about Infertility), EI Nuevo Herald, Aug. 17,2002, at Cl. Copy supplied.
'Flamenco', una explosion de energia y pasion (English translation: Flamenco: An Explosion of Energy and Passion), EI Nuevo Herald, Aug. 16,2002, at C3. Copy supplied.
Un mural en homenaje a la mujer Latina (English translation: A Mural in Homage of the Latin Woman), EI Nuevo Herald, Aug. 6,2002, at C2. Copy supplied.
Un mapa para ayudar a entender y seguir los instintos (English translation: A Map to Help Understand and Follow One's Instincts), EI Nuevo Herald, Aug. 6, 2002, at C3. Copy supplied.
Yoga prenatal, una alternative saludable al parto (English translation: Prenatal Yoga: A Healthy Alternative for Delivery), EI Nuevo Herald, July 30, 2002, at C4. Copy supplied.
Marina Albornoz o la pasion por el color (English translation: Marina Albornoz or Passion for Color), EI Nuevo Herald, July 27,2002, at C2. Copy supplied.
Musica y arte este viernes en la Calle Ocho (English translation: Music and Art this Friday on Eighth Street), EI Nuevo Herald, July 26, 2002, at C3. Copy supplied.
La herencia musical de Puerto Rico (English translation: The Musical Heritage of Puerto Rico), EI Nuevo Herald, July 24, 2002, at C2. Copy supplied.
Precauciones a seguir con las comidas al aire libre (English translation: Precautions to Avoid Food-Borne Illness While Eating Outside), El Nuevo Herald, July 23, 2002, at C2. Copy supplied.
Amor por la radio desde muy joven (English translation: Love for the Radio Since a Young Age), EI Nuevo Herald, July 16,2002, at C4. Copy supplied.
Camilo Mejia logra su sueno de ser astronaut por un fin de semana (English translation: Camilo Mejia Achieves his Dream to Become an Astronaut for a Weekend), EI Nuevo Herald, July 9, 2002, at C3. Copy supplied.
Interaccion para aprender buen espanol (English translation: Interaction to Learn Spanish Well), EI Nuevo Herald, July 2, 2002, at C2. Copy supplied.
De todo un poco este viernes en la Calle Ocho (English translation: A Little Bit of Everything this Friday on Eighth Street), EI Nuevo Herald, June 28, 2002, at C2. Copy supplied.
Summerbridge Miami, un puente hacia el futuro (English translation: Summerbridge Miami: A Bridge to the Future), EI Nuevo Herald, June 25, 2002, at C3. Copy supplied.
'The Atoms Family', una exhibicion sobre la energia (English translation: The Atoms Family: An Exhibition About Energy), EI Nuevo Herald, June 18, 2002, at C4. Copy supplied.
Ganadores en la competencia de 'Library Quest' (English translation: Winners in the Library Quest Competition), EI Nuevo Herald, June 18,2002, at C3. Copy supplied.
b. Supply four (4) copies of any reports, memoranda or policy statements you
prepared or contributed in the preparation of on behalf of any bar association,
committee, conference, or organization of which you were or are a member. If
you do not have a copy of a report, memorandum or policy statement, give the
name and address of the organization that issued it, the date of the document, and
a summary of its subject matter.
None.
c. Supply four (4) copies of any testimony, official statements or other
communications relating, in whole or in part, to matters of public policy or legal
interpretation, that you have issued or provided or that others presented on your
behalf to public bodies or public officials.
None.
d. Supply four (4) copies, transcripts or recordings of all speeches or talks delivered
by you, including commencement speeches, remarks, lectures, panel discussions,
conferences, political speeches, and question-and-answer sessions. Include the
date and place where they were delivered, and readily available press reports
about the speech or talk. If you do not have a copy of the speech or a transcript or
recording of your remarks, give the name and address of the group before whom
the speech was given, the date of the speech, and a summary of its subject matter.
If you did not speak from a prepared text, furnish a copy of any outline or notes
from which you spoke.
None.
e. List all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews where
they are available to you.
Caitlin Moscatello, Aileen & Josh: A Traditional Wedding in Coconut Grove,
7
Florida, The Knot (Florida Issue), Fall/Winter 2009. Copy supplied.
13. Judicial Office: State (chronologically) any judicial offices you have held, including
positions as an administrative law judge, whether such position was elected or appointed,
and a description, of the jurisdiction of each such court.
I have not held any judicial office.
a. Approximately how many cases have you presided over that have gone to verdict
or judgment? __ _
I. Of these, approximately what percent were:
jury trials:
bench trials:
civil proceedings:
criminal proceedings:
%
_% [total 100%]
%
_% [total 100%]
b. Provide citations for all opinions you have written, including concurrences and
dissents.
c. For each of the 10 most significant cases over which you presided, provide: (1) a
capsule summary of the nature the case; (2) the outcome of the case; (3) the name
and contact information for counsel who had a significant role in the trial of the
case; and (3) the citation of the case (if reported) or the docket number and a copy
of the opinion or judgment (if not reported).
d. For each of the 10 most significant opinions you have written, provide: (1)
citations for those decisions that were published; (2) a copy of those decisions that
were not published; and (3) the names and contact information for the attorneys
who played a significant role in the case.
e. Provide a list of all cases in which certiorari was requested or granted.
f. Provide a brief summary of and citations for all of your opinions where your
decisions were reversed by a reviewing court or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings. If
any of the opinions listed were not officially reported, provide copies of the
Opinions.
g. Provide a description of the number and percentage of your decisions in which
you issued an unpublished opinion and the manner in which those unpublished
opinions are filed and/or stored.
h. Provide citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
8
opinions listed were not officially reported, provide copies of the opinions.
1. Provide citations to all cases in which you sat by designation on a federal court of
appeals, including a brief summary of any opinions you authored, whether
majority, dissenting, or concurring, and any dissenting opinions you joined.
14. Recusal: If you are or have been a judge, identify the basis by which you have assessed
the necessity or propriety of recusal (If your court employs an "automatic" recusal system
by which you may be recused without your knowledge, please include a general
description of that system.) Provide a list of any cases, motions or matters that have
come before you in which a litigant or party has requested that you recuse yourself due to
an asserted conflict of interest or in which you have recused yourself sua sponte. Identify
each such case, and for each provide the following information:
I have not held any judicial office.
a. whether your recusal was requested by a motion or other suggestion by a litigant
or a party to the proceeding or by any other person or interested party; or if you
recused yourself sua sponte;
b. a brief description of the asserted conflict of interest or other ground for recusal;
c. the procedure you followed in determining whether or not to recuse yourself;
d. your reason for recusing or declining to recuse yourself, including any action
taken to remove the real, apparent or asserted conflict of interest or to cure any
other ground for recusal.
15. Public Office, Political Activities and Affiliations:
a. List chronologically any public offices you have held, other than judicial offices,
including the terms of service and whether such positions were elected or
appointed. If appointed, please include the name of the individual who appointed
you. Also, state chronologically any unsuccessful candidacies you have had for
elective office or unsuccessful nominations for appointed office.
None.
b. List all memberships and offices held in and services rendered, whether
compensated or not, to any political party or election committee. If you have ever
held a position or played a role in a political campaign, identify the particulars of
the campaign, including the candidate, dates of the campaign, your title and
responsibilities.
None.
16. Legal Career: Answer each part separately.
9
a. Describe chronologically your law practice and legal experience after graduation
from law school including:
1. whether you served as clerk to a judge, and if so, the name of the judge,
the court and the dates of the period you were a clerk;
From September 2008 through September 2009, I served as a law clerk to
the Honorable Steven M. Colloton on the United States Court of Appeals
for the Eighth Circuit.
11. whether you practiced alone, and if so, the addresses and dates;
I have never practiced alone.
111. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been affiliated, and the nature
of your affiliation with each.
2009 -2012
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Litigation Associate
2013 - Present
United States Attorney's Office
Southern District of Florida
101 South U.S. Highway 1, Suite 3046
Fort Pierce, Florida 34950
Assistant United States Attorney
Major Crimes Division (2013 - 2015)
Appellate Division (2013,2016 - Present)
IV. whether you served as a mediator or arbitrator in alternative dispute
resolution proceedings and, if so, a description of the 10 most significant
matters with which you were involved in that capacity.
I have not served as a mediator or arbitrator in alternative dispute
resolution proceedings.
b. Describe:
1. the general character of your law practice and indicate by date when its
character has changed over the years.
10
From 2008 to 2009, I served as a law clerk to the Honorable Steven M.
Colloton on the United States Court of Appeals for the Eighth Circuit. I
conducted legal research, drafted memoranda, and assisted in drafting
judicial opinions in civil and criminal cases.
After my clerkship, I worked as a litigation associate in the Washington, D.C.
office of Gibson, Dunn & Crutcher LLP from 2009 to 2012. I practiced
across a wide array of litigation-related areas, including securities regulation
and enforcement, appellate litigation, government investigations, and
government contracts litigation.
From 2013 to the present, I have served as an Assistant United States
Attorney in the Southern District of Florida, first in the Major Crimes
Division and most recently in the Appellate Division. While in Major
Crimes, I prosecuted 41 defendants to conviction for a wide range of federal
firearms, narcotics, fraud, and immigration offenses. I appeared regularly in
federal court, and I tried four cases to verdict in jury trials. I also handled
post-conviction proceedings and revocations of federal supervised release.
In my current role as an appellate attorney, I represent the United States
before the U.S. Court of Appeals for the Eleventh Circuit. The majority of
my work consists of defending the position of the United States in direct
appeals of criminal convictions and sentences. I also defend the denial of
post-conviction relief in 28 U.S.C. §§ 2255 and 2241 proceedings; advise
trial prosecutors on charging, evidentiary, sentencing, and post-conviction
decisions; periodically handle affirmative government appeals of adverse
sentencing or post-conviction determinations; consult with division
leadership on developments in Eleventh Circuit and Supreme Court law; and
informally train new prosecutors in legal writing and analysis. I have
authored 51 appellate briefs in the Eleventh Circuit, served as reviewing
attorney on more than 100 appellate briefs and substantive motions,
presented oral argument before the Eleventh Circuit on nine occasions
(spanning twelve appellate cases), and drafted various motions for summary
affirmance, motions to dismiss, and responses to jurisdictional questions.
11. your typical clients and the areas at each period of your legal career, if
any, in which you have specialized.
As an Assistant United States Attorney, I represent the United States in a
wide variety of primarily criminal matters, both at the district court and
appellate levels. As a result, I have gained expertise in various areas of the
criminal law, appellate law, and post-conviction litigation.
As a litigation associate at the law firm of Gibson, Dunn & Crutcher LLP, the
majority of my work consisted of representing individuals and entities in
government investigations and securities enforcement and regulatory
11
proceedings. In that capacity, I worked on two administrative trials--one
before the U.S. Securities and Exchange Commission, and another before the
Financial Industry Regulatory Authority. Both of those trials resulted in
dismissal of the charges against the firm's clients, and then I helped to secure
affirmance of those dismissals in subsequent appellate proceedings. Outside
of the securities field, I represented a government contractor in a cost-penalty
dispute with the federal government and an investment adviser in a private
securities action, among other matters.
c. Describe the percentage of your practice that has been in litigation and whether
you appeared in court frequently, occasionally, or not at all. If the frequency of
your appearances in court varied, describe such variance, providing dates.
My entire legal career has been spent in litigation. As an Assistant United States
Attorney in the Major Crimes Division of the U.S. Attorney's Office, I appeared
in court on a near-daily basis. Since joining the Appellate Division, I have
appeared before the U.S. Court of Appeals for the Eleventh Circuit nine times to
present oral argument, and on occasion, I appear in federal district court on postconviction
matters following remand. In addition, as an associate attorney at
Gibson, Dunn & Crutcher LLP, I worked on two administrative trials before
administrative bodies, one before an administrative law judge of the U.S.
Securities & Exchange Commission, and another before a panel of the Financial
Industry Regulatory Authority. While serving as a Paralegal Specialist in the
Civil Rights Division of the U.S. Department of Justice, I assisted federal
prosecutors in two federal criminal jury trials.
1. Indicate the percentage of your practice in:
1. federal courts: 95%
2. state courts of record: 0%
3. other courts: 0%
4. administrative agencies: 5%
11. Indicate the percentage of your practice in:
1. civil proceedings: 20%
2. criminal proceedings: 80%
d. State the number of cases in courts of record, including cases before
administrative law judges, you tried to verdict, judgment or final decision (rather
than settled), indicating whether you were sole counsel, chief counsel, or associate
counsel.
I have tried six cases to verdict, four as an Assistant United States Attorney, and
two before administrative agencies as an associate at Gibson, Dunn & Crutcher
LLP. Of the four cases I tried as an AUSA, I was chief counsel in two and
associate counsel in two. All were federal criminal jury trials. Of the two
administrative proceedings in which I participated in private practice, I served as
12
associate counsel working on small teams of four to five attorneys.
1. What percentage of these trials were:
1. jury: 67%
2. non-Jury: 33%
e. Describe your practice, if any, before the Supreme Court of the United States.
Supply four (4) copies of any briefs, amicus or otherwise, and, if applicable, any
oral argument transcripts before the Supreme Court in connection with your
practice.
None.
17. Litigation: Describe the ten (10) most significant litigated matters which you personally
handled, whether or not you were the attorney of record. Give the citations, if the cases
were reported, and the docket number and date if unreported. Give a capsule summary of
the substance of each case. Identify the party or parties whom you represented; describe
in detail the nature of your participation in the litigation and the final disposition of the
case. Also state as to each case:
a. the date of representation;
b. the name of the court and the name of the judge or judges before whom the case
was litigated; and
c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.
1. Us. v. Livoti, 756 F. App'x 841 (l1th Cir. 2018)
I served as appellate counsel for the United States in the defendant's appeal of his
wire fraud and money laundering convictions. Following a lengthy jury trial, the
defendant was convicted for his role in a large-scale Ponzi scheme that defrauded
thousands of investors who purchased viatical insurance settlements from Mutual
Benefits Corporation. I reviewed the voluminous trial record and authored the
government's brief on appeal. I also presented oral argument before the United
States Court of Appeals for the Eleventh Circuit, which resulted in affirmance of
all of the defendant's convictions. For my work on this appeal, I received an "ATeam"
Award for "Truly Exceptional Achievement & Merit." My representation
in this case lasted from 2016 through 2018.
Court and Judges:
U.S. Court of Appeals for the Eleventh Circuit, Hon. William H. Pryor, Jr., Jane
A. Restani (Senior Judge sitting by designation from United States Court of
International Trade), and Jill A. Pryor (recused after oral argument)
13
Opposing Counsel:
Richard Klugh, Esq.
Seitles & Litwin
40 North West 3rd Street
Penthouse One
Miami, Florida 33128
(305) 536-1191
2. Us. v. Sanchez, 940 F.3d 526 (11th Cir. 2019), cert. denied, 205 L. Ed. 2d
364 (Nov. 25, 2019).
I served as appellate counsel for the United States in the defendant's appeal of his
sentence under the Armed Career Criminal Act. The defendant's principal
contention on appeal was that his prior conviction for New York second-degree
murder did not qualify as a "violent felony" under the Armed Career Criminal
Act. This is so, he claimed, because second-degree murder includes acts of
"omission," as in the case of a parent who intentionally, and with the intent to
cause death, withholds food from a child or refuses to seek medical care. I
authored the government's brief on appeal and presented oral argument before the
U.S. Court of Appeals for the Eleventh Circuit. The Eleventh Circuit affirmed the
defendant's sentence in a published decision, concluding that intentionally
withholding food or medicine with the intent to cause bodily injury or death
constitutes a "use" of "physical force" under the Armed Career Criminal Act. My
representation in this case lasted from 2018 through 2019.
Court and Judges:
U.S. Court of Appeals for the Eleventh Circuit, Hon. Frank M. Hull (Senior
Judge), Britt C. Grant, and Robin S. Rosenbaum
Opposing Cowlsel:
Sara W. Kane
Assistant Federal Public Defender
Southern District of Florida
150 West Flagler Street, Suite 1700
Miami, Florida 33130
(305) 536-6900
3. Us. V. Gibbs, 917 F.3d 1289 (l1th Cir. 2019)
I served as appellate counsel for the United States in the defendant's appeal of his
conviction. The defendant claimed that law enforcement officers acted
unreasonably under the Fourth Amendment when they seized a loaded gun from
14
his pocket during a traffic stop. I authored the government's brief on appeal and
presented oral argument before the U.S. Court of Appeals for the Eleventh
Circuit. In a published decision, the court affirmed the defendant's conviction,
holding that officers had a lawful basis to detain the defendant based on an
undisputed traffic violation, and that officers did not convert the lawful stop into
an unlawful detention merely by drawing their weapons. For my work on this
appeal, I received a Certificate of Appreciation in recognition of my "outstanding
contribution to the mission of the Department of Justice and the Southern District
of Florida." My representation occurred from 2018 through 2019.
Court and Judges:
U.S. Court of Appeals for the Eleventh Circuit, Hon. Stanley Marcus (Senior
Judge), Joel Dubina (Senior Judge), and Richard W. Goldberg (Senior Judge
sitting by designation from U.S. Court of International Trade)
Opposing Counsel:
Arun Gopal Ravindran
Assistant Federal Public Defender
Southern District of Florida
150 West Flagler Street, Suite 1700
Miami, Florida 33130
(305) 536-6900
4. Us. v. Rodriguez, No. 14 CR 20577 (S.D. Fla. 2014)
I served as lead trial counsel for the United States in a criminal prosecution of the
named defendant for possessing a firearm and ammunition as a previously
convicted felon. The defendant moved to suppress the loaded firearm, but the
district court denied his motion after an evidentiary hearing. The court then held
a contested pre-trial hearing on various issues, including the defendant's motion
to preclude DNA evidence, which the district court denied. Following a jury trial,
the defendant was found guilty of the sole count in the indictment, and his
conviction was affirmed on appeal. My work on this case occurred in 2014
through 2015.
Court and Judge:
U.S. District Court for the Southern District of Florida, Hon. K. Michael Moore
(Chief Judge)
Co-Counsel:
Breezye Telfair
Assistant United States Attorney
15
Southern District of Florida
99 North East 4th Street
Miami, Florida 33132
(305) 961-9001
Opposing Counsel:
Jason Grey
The Law Offices of Grey & Mourin
1800 South West 1st Street, Suite 206
Miami, Florida 33135
(305) 325-8119
5. Us. v. Darbouze, No. 14 CR 20577 (S.D. Fla. 2014)
I served as associate trial counsel for the United States in a criminal prosecution
of the named defendant for possession and attempted receipt of child
pornography. The evidence at trial showed that the defendant shared a significant
volume of child pornography on a peer-to-peer network and possessed child
pornography on several electronic devices. Following a jury trial, the defendant
was found guilty on all counts, and his convictions were affirmed on appeal. I
participated in this case in 2014.
Court and Judge:
U.S. District Court of the Southern District of Florida, Hon. Beth Bloom
Co-Counsel:
Maurice Johnson
Assistant United States Attorney
Southern District of Florida
99 North East 4th Street
Miami, Florida 33132
(305) 961-9001
Opposing Counsel:
Christy 0' Connor
Deputy Federal Public Defender
Central District of California
321 East 2nd Street
Los Angeles, California 90012
(213) 894-2854
(Formerly Assistant FPD in Southern District of Florida)
16
Alex Arteaga-Gomez
Grossman Roth Yaffa Cohen
2525 Ponce de Leon, Suite 1150
Coral Gables, Florida 33134
(305) 442-8666
(Formerly Assistant FPD in Southern District of Florida)
6. Us. v. Eason, et al., 953 F.3d 1184 (11th Cir. Mar. 24, 2020) (Nos. 16-
15413,16-17796,18-12848)
I served as lead appellate counsel for the United States in these consolidated
criminal sentencing appeals. The question presented was whether the offense of
Hobbs IAct robbery, in violation of 18 U.S.C. § 1951(b)(l), qualifies as a "crime
of violence" as defined in Section 4B1.2(a) of the United States Sentencing
Guidelines. I authored the government's principal briefs on appeal and presented
oral argument before the U.S. Court of Appeals for the Eleventh Circuit. In
March 2020, the Court reversed the defendants' sentences, joining three other
circuits to conclude that Hobbs Act robbery includes threats to property alone and
therefore does not qualify as a "crime of violence" under Section 4B1.2(a) of the
Sentencing Guidelines. I worked on these cases in 2019 and 2020.
Court and Judges:
U.S. Court of Appeals for the Eleventh Circuit, Hon. Adalberto Jordan, Jill A.
Pryor, and John M. Walker (Senior Judge sitting by designation from U.S. Court
of Appeals for the Second Circuit)
Co-Counsel:
Laura Thomas Rivero
Assistant United States Attorney
Southern District of Florida
99 North East 4th Street
Miami, Florida 33132
(305) 961-9001
Nicole Mariani
Assistant United States Attorney
Southern District of Florida
99 North East 4th Street
Miami, Florida 33132
(305) 961-9001
Opposing Counsel:
Andrew L. Adler
17
Counsel for Jeffrey Lawson
Assistant Federal Public Defender
Southern District of Florida
One East Broward Boulevard
Fort Lauderdale, Florida 33301
(954) 356-7436
Joaquin Mendez, Esq.
Counsel for Carlton Styles
Law Offices of Joaquin Mendez, P.A.
201 Alhambra Circle Suite 1200
Coral Gables, Florida 33134
(305) 375-0886
Valentin Rodriguez
Law Offices of Valentin Rodriguez, P.A.
Counsel for Marlon Eason
120 South Dixie Highway, Suite 204
West Palm Beach, Florida 33401
(561) 832-7510
7. Us. v. Williams, 650 F. App'x 977 (11th Cir. 2016), cert. denied (2016)
I served as appellate counsel for the United States in the defendant's appeal of the
district court's denial of his motion to suppress. Following his release from
prison for armed carjacking and aggravated fleeing, the defendant was placed on
probation and subjected to several conditions, among them that he would submit
to warrantless searches of his residence. Pursuant to that search condition,
probation officers searched his residence and found evidence of stolen
government property. On appeal, the defendant raised a Fourth Amendment
challenge to the search, arguing that officers lacked reasonable suspicion of
criminal activity. The Eleventh Circuit affirmed the denial of his motion to
suppress, after which the defendant filed a petition for certiorari in the Supreme
Court. I assisted the Office of the Solicitor General in its successful brief in
opposition to certiorari. My participation in this appeal occurred in 2016.
Comt and Judges:
U.S. Court of Appeals for the Eleventh Circuit, Hon. Gerald Bard Tjoflat (Senior
Judge), Frank M. Hull (Senior Judge), and Beverly B. Martin
Opposing Counsel:
Andrew L. Adler
Assistant Federal Public Defender
Southern District of Florida
18
One East Broward Boulevard
Fort Lauderdale, Florida 33301
(954) 356-7436
8. Us. v. Hudson, No. 13 CR 29832 (S.D. Fla. 2013)
I served as lead trial counsel for the United States in a criminal prosecution of the
named defendant for possessing a firearm and ammunition as a previously
convicted felon. The defendant, an armed career criminal, burglarized the home
of a victim and stole a firearm and ammunition along with various other items.
The defendant argued that he did not knowingly possess the firearm and
ammunition because he took items indiscriminately from the home during the
burglary. The jury found him guilty after a trial, and the Eleventh Circuit
subsequently affirmed his conviction and sentence. After the direct appeal, I
handled the government's successful opposition to the defendant's postconviction
motion to vacate under 28 U.S.C. § 2255 and drafted the government's
response to the defendant's pending habeas petition under 28 U.S.C. §§ 2255(e)
and 2241. My participation in this case began in 2013 and continues.
Court and Judge:
U.S. District Court of the Southern District of Florida, Hon. Paul C. Huck
Co-Counsel:
Rosa Rodriguez-Mera
Resident Legal Advisor-Mexico
U.S. Department of Justice
Office of Overseas Prosecutorial Development Assistance and Training Attorney
(202) 514-1323
(Formerly AUSA in Southern District of Florida)
Opposing Counsel:
Stewart G. Abrams
Assistant Federal Public Defender
Southern District of Florida
150 West Flagler Street, Suite 1700
Miami, Florida 33130
(305) 536-6900
9. SEC v. Urban (Administrative Proceeding File No. 3-13655)
As an associate at Gibson, Dunn & Crutcher LLP, I was a member of a small trial
team that represented the former general counsel of a brokerage firm in an
enforcement proceeding before an administrative law judge of the U.S. Securities
19
and Exchange Commission. The Division of Enforcement alleged that the former
general counsel failed reasonably to supervise a retail broker of the firm who pled
guilty to federal securities fraud. After a 13-day administrative trial in 2010, the
administrative law judge issued an initial decision dismissing the administrative
proceeding. I participated substantially in the pre-and-post trial briefing and also
in the briefing on appeal, which resulted in the U.S. Securities and Exchange
Commission dismissing the proceeding. My participation in the case began in
2009 and concluded in 2012.
Administrative Court and Judge/Commissioners:
U.S. Securities and Exchange Commission, Chief Administrative Law Judge
Brenda Murray (retired)
U.S. Securities and Exchange Commission, Commissioners Luis A. Aguilar and
Troy A. Paredes (former Commissioners)
Co-Counsel:
John H. Sturc
George Washington University School of Law
Professorial Lecturer in Law
2000 H Street, N.W.
Washington, D.C. 20052
(202) 994-1010
(Formerly Partner at Gibson, Dunn & Crutcher LLP)
David P. Burns
U.S. Department of Justice
Principal Deputy Assistant Attorney General
National Security Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202) 514-2000
(Formerly Partner at Gibson, Dunn & Crutcher LLP)
10. Dep 't of Enforcement v. Brinck (Disciplinary Proceeding No.
2008014621701)
As an associate at Gibson, Dunn & Crutcher LLP, I was a member of a small trial
team that represented the former head of the fixed income desk at an investment
banking firm. The Enforcement Division of the Financial Industry Regulatory
Authority alleged that the respondent engaged in fraud when he authorized the
purchase of auction rate securities for corporate clients. After a 10-day
evidentiary hearing before a three-member disciplinary hearing panel of the
Financial Industry Regulatory Authority, the panel ruled unanimously that the
20
Department of Enforcement failed to prove its fraud allegation, and the opinion
credited the respondent's belief in the safety and liquidity of the investments. My
participation in this case occurred in 2010 through 2012.
Administrative Court and Hearing Officer:
Financial Industry Regulatory Authority, Rochelle S. Hall, Administrative
Hearing Officer, unable to find names of other two panelists who served on
Hearing Panel
Co-Counsel:
Barry Goldsmith
Gibson, Dunn & Crutcher LLP
200 Park A venue
New York, New York 10166
(212) 351-4000
Opposing Counsel:
Daniel D. McClain
Gary M. Lisker
Financial Industry Regulatory Authority
1735 K Street, N.W.
Washington DC, 20006
(301) 590-6500
18. Legal Activities: Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters that did not
involve litigation. Describe fully the nature of your participation in these activities. List
any client(s) or organization(s) for whom you performed lobbying activities and describe
the lobbying activities you performed on behalf of such client(s) or organizations(s).
(Note: As to any facts requested in this question, please omit any information protected
by the attorney-client privilege.)
As an Assistant United States Attorney in the Appellate Division, I serve in a liaison role
to prosecutors in the trial divisions. I provide advice on charging, suppression,
evidentiary, trial, and post-conviction questions. I also periodically review trial-level
pleadings and consult with prosecutors on legal issues arising on remand from the United
States Court of Appeals for the Eleventh Circuit.
Beyond my liaison responsibilities, I review briefs authored by other appellate attorneys,
participate in preparation sessions for oral arguments, consult with Appellate Division
leadership on adverse rulings, and help train and mentor new attorneys on legal writing,
sentencing practice, and suppression issues under the Fourth Amendment.
21
In the post-conviction context specifically, I provide ongoing advice to prosecutors on
various issues arising out of the Supreme Court's decisions in Johnson v. Us., 135 S. Ct.
2551 (2015), Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and Us. v. Davis, 139 S. Ct.
2319 (2019). I also assist prosecutors in evaluating the merits of habeas petitions brought
under 28 U.S.C. § 2255(e). More recently, I have worked on matters stemming from the
First Step Act of 20 18.
I have not performed any lobbying activities.
19. Teaching: What courses have you taught? For each course, state the title, the institution
at which you taught the course, the years in which you taught the course, and describe
briefly the subject matter of the course and the major topics taught. If you have a
syllabus of each course, provide four (4) copies to the committee.
None.
20. Deferred Income/ Future Benefits: List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers, clients or
customers. Describe the arrangements you have made to be compensated in the future
for any financial or business interest.
None.
21. Outside Commitments During Court Service: Do you have any plans, commitments,
or agreements to pursue outside employment, with or without compensation, during your
service with the court? If so, explain.
I have no plans, commitments, or agreements to pursue outside employment, whether
compensated or not, if I am confirmed.
22. Sources of Income: List sources and amounts of all income received during the calendar
year preceding your nomination and for the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties, licensing fees, honoraria, and other items
exceeding $500 or more (if you prefer to do so, copies of the financial disclosure report,
required by the Ethics in Government Act of 1978, may be substituted here).
When my nomination is formally transmitted to the Senate, I will file my mandated
Financial Disclosure Report and will supply a copy to this Committee.
23. Statement of Net Worth: Please complete the attached financial net worth statement in
detail (add schedules as called for).
Please see the attached Net Worth Statement.
22
24. Potential Conflicts of Interest:
a. Identify the family members or other persons, parties, categories of litigation, and
financial arrangements that are likely to present potential conflicts-of-interest
when you first assume the position to which you have been nominated. Explain
how you would address any such conflict if it were to arise.
If confirmed, I would recuse myself from any litigation or proceeding in which I
have ever played a role. For a period of time, I anticipate recusing in all cases
brought by the United States Attorney's Office for the Southern District of Florida
and all civil matters defended by the United States Attorney's Office, to the extent
required by 28 U.S.C. § 455, the Code of Conduct for United States Judges,
policies of the district court, and all applicable rules regarding ethics and conflicts
of interest. I will evaluate any other real or potential conflict, or relationship that
could give rise to an appearance of a conflict, on a case-by-case basis, including
taking input from the parties when needed, and determine appropriate action,
including recusal where necessary;
I might also hear cases from Gibson, Dunn & Crutcher LLP and its lawyers. As a
former Gibson Dunn lawyer, I would need to consider possible recusal in those
cases as required by 28 U.S.C. § 455, the Code of Conduct for United States
Judges, policies of the district court, and all applicable rules regarding ethics and
conflicts of interest.
b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.
If confirmed, I will carefully review and address any real or potential conflicts by
reference to 28 U.S.C. § 455 and Canon 3 of the Code of Conduct for United
States Judges, and any and all other laws, rules, and practices governing such
circumstances.
25. Pro Bono Work: An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for "every lawyer, regardless of
professional prominence or professional workload, to find some time to participate in
serving the disadvantaged." Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each.
In 2004, while serving as a paralegal in the Civil Rights Division of the U.S. Department
of Justice, I participated in a Department-organized educational outreach program with
the Thurgood Marshall Academy in Southeast Washington D.C. I went to the school
several times a month to read and tutor young children.
While in private practice, I participated in pro bono matters. For example, as an associate
at Gibson, Dunn & Crutcher LLP, another associate attorney and I devoted approximately
80 hours to representing a pro bono client in a child custody and child support matter.
23
Following mediation, we helped secure a favorable custody and parenting arrangement
that was later approved by the Superior Court of the District of Columbia. Similarly, as a
summer associate at Squire Sanders LLP (now Squire Patton Boggs), I assisted a
litigation partner in the pro bono representation of indigent defendants in criminal
proceedings in Florida state court.
Since becoming an Assistant United States Attorney in 2013, legal pro bono
opportunities have been limited, because I am prohibited from practicing law outside of
my office except in very limited circumstances. In my community, however, I volunteer
at my children's school throughout the year, and more recently in 2020, I began
volunteering informally for a local fundraiser to support the Myocarditis Foundation.
26. Selection Process:
a. Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination and
the interviews in which you participated). Is there a selection commission in your
jurisdiction to recommend candidates for nomination to the federal courts? If so,
please include that process in your description, as well as whether the commission
recommended your nomination. List the dates of all interviews or
communications you had with the White House staff or the Justice Department
regarding this nomination. Do not include any contacts with Federal Bureau of
Investigation personnel concerning your nomination.
On June 5, 2019, I received an email from the Office of Senator Rubio advising
me that Senator Rubio wanted to consider me for a judicial vacancy in the
Southern District of Florida. On June 17,2019, I submitted an application to
Senator Rubio's Judicial Advisory Commission for the Southern District of
Florida. On June 24, 2019, I interviewed with Senator Rubio's Advisory
Commission in Fort Pierce, Florida. On July 10, 2019, Senator Scott's General
Counsel interviewed me by phone. On August 8, 2019, I interviewed in
Washington, D.C. with officials from the White House Counsel's Office and the
Department of Justice's Office of Legal Policy. Since then, I have been in contact
with officials from the White House Counsel's Office and Office of Legal Policy.
On March 6, 2020, I was informed by the White House Counsel's office that
appropriate clearance processes would commence for my possible nomination.
b. Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any currently pending or specific case, legal issue or question
in a manner that could reasonably be interpreted as seeking any express or
implied assurances concerning your position on such case, issue, or question? If
so, explain fully.
No.
2
Aileen Mercedes Cannon
1. Name: State full name (include any former names used).
Aileen Mercedes Cannon
2. Position: State the position for which you have been nominated.
United States District Judge for the Southern District of Florida
3. Address: List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.
United States Attorney's Office for the Southern District of Florida
101 South U.S. Highway 1, Suite 3046
Fort Pierce, Florida 34950
Residence:
Vero Beach, Florida
4. Birthplace: State year and place of birth.
1981; Cali, Colombia
5. Education: List in reverse chronological order each college, law school, or any other
institution of higher education attended and indicate for each the dates of attendance,
whether a degree was received, and the date each degree was received.
2005 - 2007, The University of Michigan Law School; J.D. (magna cum laude), 2007
1999 - 2003, Duke University; B.A., 2003
Fall 2001, University of Seville, Seville, Spain; no degree
6. Employment Record: List in reverse chronological order all governmental agencies,
business or professional corporations, companies, firms, or other enterprises,
partnerships, institutions or organizations, non-profit or otherwise, with which you have
been affiliated as an officer, director, partner, proprietor, or employee since graduation
from college, whether or not you received payment for your services. Include the name
and address of the employer and job title or description.
2013 - Present
United States Attorney's Office for the Southern District of Florida
101 South U.S. Highway 1, Suite 3046
Fort Pierce, Florida 34950
Assistant United States Attorney
2009 - 2012
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Associate Attorney
2008 -2009
Honorable Steven M. Colloton
United States Court of Appeals for the Eighth Circuit
110 East Court Avenue
Des Moines, Iowa 50309
Law Clerk
2007
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Summer Associate
2006,2007
Squire Sanders LLP (now Squire Patton Boggs)
200 South Biscayne Boulevard, Suite 4700
Miami, Florida 33131
Summer Associate
2003 - 2005
U.S. Department of Justice
Civil Rights Division, Criminal Section
601 D Street, N.W.
Washington, D.C. 20579
Paralegal Specialist
7. Military Service and Draft Status: Identify any service in the U.S. Military, including
dates of service, branch of service, rank or rate, serial number (if different from social
security number) and type of discharge received, and whether you have registered for
selective service.
I have not served in the U.S. military. I was not required to register for selective service.
8. Honors and Awards: List any scholarships, fellowships, honorary degrees, academic or
2
professional honors, honorary society memberships, military awards, and any other
special recognition for outstanding service or achievement.
Certificate of Appreciation recognizing achievement in us. v. Gibbs, 917 F.3d 1289
(11th Cir. 2019), United States Attorney's Office for the Southern District of Florida
(2019)
Timothy Evans Award recognizing achievement in 28 U.S.C. §§ 2255(e) and 2241
litigation, United States Attorney's Office for the Southern District of Florida (2017)
"A-Team" Award for "Truly Exceptional Achievement & Merit" in post-conviction
litigation following Johnson v. Us., 135 S. Ct. 2551 (2015), United States Attorney's
Office for the Southern District of Florida (2017)
"A-Team" Award for "Truly Exceptional Achievement & Merit" in securing affirmance
on appeal of fraud and money laundering convictions in Us. v. Anthony Livoti, 756 F.
App'x 841 (11th Cir. 2018), United States Attorney's Office for the Southern District of
Florida (2016)
J.D. degree conferred magna cum laude, The University of Michigan Law School (2007)
Inducted into Order of the Coif Honor Society, The University of Michigan Law School,
(2007)
Quarterfinalist, Henry Campbell Moot Court Competition, The University of Michigan
Law School (2007)
The University of Michigan Journal of Law Reform, Articles and Associate Editor
(2006 - 2007)
Dean's List distinction for five semesters, Duke University (2000 - 2003)
9. Bar Associations: List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you are or have been a member, and give the
titles and dates of any offices which you have held in such groups.
None.
10. Bar and Court Admission:
a. List the date( s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.
California, 2008
District of Columbia, 2009
Florida, 2012
3
In 2011, I voluntarily changed my membership status in the California Bar from
active to inactive status because I was not practicing law in California and did not
have plans to do so. In 2019, I voluntarily resigned my membership in the D.C.
Bar in good standing because I was licensed to practice law in Florida and did not
have plans to practice in D.C. In the Florida Bar, I inadvertently missed the
October 1,2015, deadline for payment of annual dues while I was on maternity
leave with my second child. I realized my mistake when I returned to work in
January 2016 and took immediate action to rectify the oversight. I informed the
Florida Bar, paid the required dues, and submitted a petition for reinstatement and
waiver of late fees. The petition was approved. Other than that, there have been
no lapses in membership.
b. List all courts in which you have been admitted to practice, including dates of
admission and any lapses in membership. Please explain the reason for any lapse
in membership. Give the same information for administrative bodies that require
special admission to practice.
United States Court of Appeals for the Eighth Circuit (2009)
United States Court of Appeals for the Eleventh Circuit (2013)
United States Court of Federal Claims (2011)
United States District Court for the Southern District of Florida (2013)
There have been no lapses in membership.
11. Memberships:
a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 9 or 10 to which
you belong, or to which you have belonged, since graduation from law school.
Provide dates of membership or participation, and indicate any office you held.
Include clubs, working groups, advisory or editorial boards, panels, committees,
conferences, or publications.
Delta Delta Delta Fraternity (2000 - Present)
Duke University Alumni Association (2003 - Present)
The Federalist Society (2005 - Present)
The Moorings Yacht & Country Club (2019 - Present)
Order of the Coif, The University of Michigan Law School (2007 - Present)
The University of Michigan Law School Alumni Association (2008 - Present)
4
b. The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any organization
that invidiously discriminates on the basis of race, sex, or religion, or national
origin. Indicate whether any of these organizations listed in response to 11 a above
currently discriminate or formerly discriminated on the basis of race, sex, religion
or national origin either through formal membership requirements or the practical
implementation of membership policies. If so, describe any action you have taken
to change these policies and practices.
Delta Delta Delta fraternity is a panhellenic women's organization that limits its
membership to women. There were no formal membership exclusions based on
race, but the first African-American woman was not admitted as a member until
the early 1960s. Delta Delta Delta was the first fraternity in the National
Panhellenic Council to enact an official non-discrimination policy, which includes
race, and as a member of Delta Delta Delta, I have never witnessed or
experienced any racially discriminatory conduct of any kind.
Except as set forth above, to the best of my knowledge, none of the organizations
listed in response to Question 1 I (a) currently discriminates or formerly
discriminated on the basis of race, sex, religion, or national origin, either through
formal membership requirements or the practical implementation of membership
policies.
12. Published Writings and Public Statements:
a. List the titles, publishers, and dates of books, articles, reports, letters to the editor,
editorial pieces, or other published material you have written or edited, including
material published only on the Internet. Supply four (4) copies of all published
material to the Committee.
With John Sturc, David Burns, John Chesley, Gibson Dunn Persuades SEC to
Dismiss Proceedings Against Former General Counsel of Ferris Baker Watts,
Gibson Dunn Website, Jan. 26,2012. Copy supplied.
With Barry Goldsmith, David Debold, and Geoff Weien, Gibson Dunn Wins
Unanimous Dismissal of Fraud Charges in Auction Rate Securities Case, Gibson
Dunn Website, Nov. 8,2011. Copy supplied.
With John Sturc, David Burns, John Chesley, Gibson Dunn Secures Significant
Dismissal in Litigated SEC Administrative Proceeding, Gibson Dunn Website,
Sept. 8,2010. Copy supplied.
Puede que el tomate reduzca tumors (English translation: Tomatoes May Help Reduce Tumors), El Nuevo Herald, Aug. 20, 2002, at C4. Copy supplied.
Un libro fecundo sobre la esterilidad (English translation: A Fertile Book about Infertility), EI Nuevo Herald, Aug. 17,2002, at Cl. Copy supplied.
'Flamenco', una explosion de energia y pasion (English translation: Flamenco: An Explosion of Energy and Passion), EI Nuevo Herald, Aug. 16,2002, at C3. Copy supplied.
Un mural en homenaje a la mujer Latina (English translation: A Mural in Homage of the Latin Woman), EI Nuevo Herald, Aug. 6,2002, at C2. Copy supplied.
Un mapa para ayudar a entender y seguir los instintos (English translation: A Map to Help Understand and Follow One's Instincts), EI Nuevo Herald, Aug. 6, 2002, at C3. Copy supplied.
The new guide is part of the intelligence agency's Ask Molly series, an online CIA forum that answers questions from the public.
The agency also suggests planning detours on your travel excursions to avoid dangerous parts of the city and poorly lit neighborhoods at night.
And, above all, it suggests trusting your instincts.
-- Security locks, doorstops and bypasses: CIA shares how to travel like a spy, by Michael Wilner, El Nuevo Herald, 5/27/22
Yoga prenatal, una alternative saludable al parto (English translation: Prenatal Yoga: A Healthy Alternative for Delivery), EI Nuevo Herald, July 30, 2002, at C4. Copy supplied.
Marina Albornoz o la pasion por el color (English translation: Marina Albornoz or Passion for Color), EI Nuevo Herald, July 27,2002, at C2. Copy supplied.
Musica y arte este viernes en la Calle Ocho (English translation: Music and Art this Friday on Eighth Street), EI Nuevo Herald, July 26, 2002, at C3. Copy supplied.
La herencia musical de Puerto Rico (English translation: The Musical Heritage of Puerto Rico), EI Nuevo Herald, July 24, 2002, at C2. Copy supplied.
Precauciones a seguir con las comidas al aire libre (English translation: Precautions to Avoid Food-Borne Illness While Eating Outside), El Nuevo Herald, July 23, 2002, at C2. Copy supplied.
Amor por la radio desde muy joven (English translation: Love for the Radio Since a Young Age), EI Nuevo Herald, July 16,2002, at C4. Copy supplied.
Camilo Mejia logra su sueno de ser astronaut por un fin de semana (English translation: Camilo Mejia Achieves his Dream to Become an Astronaut for a Weekend), EI Nuevo Herald, July 9, 2002, at C3. Copy supplied.
Interaccion para aprender buen espanol (English translation: Interaction to Learn Spanish Well), EI Nuevo Herald, July 2, 2002, at C2. Copy supplied.
De todo un poco este viernes en la Calle Ocho (English translation: A Little Bit of Everything this Friday on Eighth Street), EI Nuevo Herald, June 28, 2002, at C2. Copy supplied.
Summerbridge Miami, un puente hacia el futuro (English translation: Summerbridge Miami: A Bridge to the Future), EI Nuevo Herald, June 25, 2002, at C3. Copy supplied.
'The Atoms Family', una exhibicion sobre la energia (English translation: The Atoms Family: An Exhibition About Energy), EI Nuevo Herald, June 18, 2002, at C4. Copy supplied.
Ganadores en la competencia de 'Library Quest' (English translation: Winners in the Library Quest Competition), EI Nuevo Herald, June 18,2002, at C3. Copy supplied.
b. Supply four (4) copies of any reports, memoranda or policy statements you
prepared or contributed in the preparation of on behalf of any bar association,
committee, conference, or organization of which you were or are a member. If
you do not have a copy of a report, memorandum or policy statement, give the
name and address of the organization that issued it, the date of the document, and
a summary of its subject matter.
None.
c. Supply four (4) copies of any testimony, official statements or other
communications relating, in whole or in part, to matters of public policy or legal
interpretation, that you have issued or provided or that others presented on your
behalf to public bodies or public officials.
None.
d. Supply four (4) copies, transcripts or recordings of all speeches or talks delivered
by you, including commencement speeches, remarks, lectures, panel discussions,
conferences, political speeches, and question-and-answer sessions. Include the
date and place where they were delivered, and readily available press reports
about the speech or talk. If you do not have a copy of the speech or a transcript or
recording of your remarks, give the name and address of the group before whom
the speech was given, the date of the speech, and a summary of its subject matter.
If you did not speak from a prepared text, furnish a copy of any outline or notes
from which you spoke.
None.
e. List all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews where
they are available to you.
Caitlin Moscatello, Aileen & Josh: A Traditional Wedding in Coconut Grove,
7
Florida, The Knot (Florida Issue), Fall/Winter 2009. Copy supplied.
13. Judicial Office: State (chronologically) any judicial offices you have held, including
positions as an administrative law judge, whether such position was elected or appointed,
and a description, of the jurisdiction of each such court.
I have not held any judicial office.
a. Approximately how many cases have you presided over that have gone to verdict
or judgment? __ _
I. Of these, approximately what percent were:
jury trials:
bench trials:
civil proceedings:
criminal proceedings:
%
_% [total 100%]
%
_% [total 100%]
b. Provide citations for all opinions you have written, including concurrences and
dissents.
c. For each of the 10 most significant cases over which you presided, provide: (1) a
capsule summary of the nature the case; (2) the outcome of the case; (3) the name
and contact information for counsel who had a significant role in the trial of the
case; and (3) the citation of the case (if reported) or the docket number and a copy
of the opinion or judgment (if not reported).
d. For each of the 10 most significant opinions you have written, provide: (1)
citations for those decisions that were published; (2) a copy of those decisions that
were not published; and (3) the names and contact information for the attorneys
who played a significant role in the case.
e. Provide a list of all cases in which certiorari was requested or granted.
f. Provide a brief summary of and citations for all of your opinions where your
decisions were reversed by a reviewing court or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings. If
any of the opinions listed were not officially reported, provide copies of the
Opinions.
g. Provide a description of the number and percentage of your decisions in which
you issued an unpublished opinion and the manner in which those unpublished
opinions are filed and/or stored.
h. Provide citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
8
opinions listed were not officially reported, provide copies of the opinions.
1. Provide citations to all cases in which you sat by designation on a federal court of
appeals, including a brief summary of any opinions you authored, whether
majority, dissenting, or concurring, and any dissenting opinions you joined.
14. Recusal: If you are or have been a judge, identify the basis by which you have assessed
the necessity or propriety of recusal (If your court employs an "automatic" recusal system
by which you may be recused without your knowledge, please include a general
description of that system.) Provide a list of any cases, motions or matters that have
come before you in which a litigant or party has requested that you recuse yourself due to
an asserted conflict of interest or in which you have recused yourself sua sponte. Identify
each such case, and for each provide the following information:
I have not held any judicial office.
a. whether your recusal was requested by a motion or other suggestion by a litigant
or a party to the proceeding or by any other person or interested party; or if you
recused yourself sua sponte;
b. a brief description of the asserted conflict of interest or other ground for recusal;
c. the procedure you followed in determining whether or not to recuse yourself;
d. your reason for recusing or declining to recuse yourself, including any action
taken to remove the real, apparent or asserted conflict of interest or to cure any
other ground for recusal.
15. Public Office, Political Activities and Affiliations:
a. List chronologically any public offices you have held, other than judicial offices,
including the terms of service and whether such positions were elected or
appointed. If appointed, please include the name of the individual who appointed
you. Also, state chronologically any unsuccessful candidacies you have had for
elective office or unsuccessful nominations for appointed office.
None.
b. List all memberships and offices held in and services rendered, whether
compensated or not, to any political party or election committee. If you have ever
held a position or played a role in a political campaign, identify the particulars of
the campaign, including the candidate, dates of the campaign, your title and
responsibilities.
None.
16. Legal Career: Answer each part separately.
9
a. Describe chronologically your law practice and legal experience after graduation
from law school including:
1. whether you served as clerk to a judge, and if so, the name of the judge,
the court and the dates of the period you were a clerk;
From September 2008 through September 2009, I served as a law clerk to
the Honorable Steven M. Colloton on the United States Court of Appeals
for the Eighth Circuit.
11. whether you practiced alone, and if so, the addresses and dates;
I have never practiced alone.
111. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been affiliated, and the nature
of your affiliation with each.
2009 -2012
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Litigation Associate
2013 - Present
United States Attorney's Office
Southern District of Florida
101 South U.S. Highway 1, Suite 3046
Fort Pierce, Florida 34950
Assistant United States Attorney
Major Crimes Division (2013 - 2015)
Appellate Division (2013,2016 - Present)
IV. whether you served as a mediator or arbitrator in alternative dispute
resolution proceedings and, if so, a description of the 10 most significant
matters with which you were involved in that capacity.
I have not served as a mediator or arbitrator in alternative dispute
resolution proceedings.
b. Describe:
1. the general character of your law practice and indicate by date when its
character has changed over the years.
10
From 2008 to 2009, I served as a law clerk to the Honorable Steven M.
Colloton on the United States Court of Appeals for the Eighth Circuit. I
conducted legal research, drafted memoranda, and assisted in drafting
judicial opinions in civil and criminal cases.
After my clerkship, I worked as a litigation associate in the Washington, D.C.
office of Gibson, Dunn & Crutcher LLP from 2009 to 2012. I practiced
across a wide array of litigation-related areas, including securities regulation
and enforcement, appellate litigation, government investigations, and
government contracts litigation.
From 2013 to the present, I have served as an Assistant United States
Attorney in the Southern District of Florida, first in the Major Crimes
Division and most recently in the Appellate Division. While in Major
Crimes, I prosecuted 41 defendants to conviction for a wide range of federal
firearms, narcotics, fraud, and immigration offenses. I appeared regularly in
federal court, and I tried four cases to verdict in jury trials. I also handled
post-conviction proceedings and revocations of federal supervised release.
In my current role as an appellate attorney, I represent the United States
before the U.S. Court of Appeals for the Eleventh Circuit. The majority of
my work consists of defending the position of the United States in direct
appeals of criminal convictions and sentences. I also defend the denial of
post-conviction relief in 28 U.S.C. §§ 2255 and 2241 proceedings; advise
trial prosecutors on charging, evidentiary, sentencing, and post-conviction
decisions; periodically handle affirmative government appeals of adverse
sentencing or post-conviction determinations; consult with division
leadership on developments in Eleventh Circuit and Supreme Court law; and
informally train new prosecutors in legal writing and analysis. I have
authored 51 appellate briefs in the Eleventh Circuit, served as reviewing
attorney on more than 100 appellate briefs and substantive motions,
presented oral argument before the Eleventh Circuit on nine occasions
(spanning twelve appellate cases), and drafted various motions for summary
affirmance, motions to dismiss, and responses to jurisdictional questions.
11. your typical clients and the areas at each period of your legal career, if
any, in which you have specialized.
As an Assistant United States Attorney, I represent the United States in a
wide variety of primarily criminal matters, both at the district court and
appellate levels. As a result, I have gained expertise in various areas of the
criminal law, appellate law, and post-conviction litigation.
As a litigation associate at the law firm of Gibson, Dunn & Crutcher LLP, the
majority of my work consisted of representing individuals and entities in
government investigations and securities enforcement and regulatory
11
proceedings. In that capacity, I worked on two administrative trials--one
before the U.S. Securities and Exchange Commission, and another before the
Financial Industry Regulatory Authority. Both of those trials resulted in
dismissal of the charges against the firm's clients, and then I helped to secure
affirmance of those dismissals in subsequent appellate proceedings. Outside
of the securities field, I represented a government contractor in a cost-penalty
dispute with the federal government and an investment adviser in a private
securities action, among other matters.
c. Describe the percentage of your practice that has been in litigation and whether
you appeared in court frequently, occasionally, or not at all. If the frequency of
your appearances in court varied, describe such variance, providing dates.
My entire legal career has been spent in litigation. As an Assistant United States
Attorney in the Major Crimes Division of the U.S. Attorney's Office, I appeared
in court on a near-daily basis. Since joining the Appellate Division, I have
appeared before the U.S. Court of Appeals for the Eleventh Circuit nine times to
present oral argument, and on occasion, I appear in federal district court on postconviction
matters following remand. In addition, as an associate attorney at
Gibson, Dunn & Crutcher LLP, I worked on two administrative trials before
administrative bodies, one before an administrative law judge of the U.S.
Securities & Exchange Commission, and another before a panel of the Financial
Industry Regulatory Authority. While serving as a Paralegal Specialist in the
Civil Rights Division of the U.S. Department of Justice, I assisted federal
prosecutors in two federal criminal jury trials.
1. Indicate the percentage of your practice in:
1. federal courts: 95%
2. state courts of record: 0%
3. other courts: 0%
4. administrative agencies: 5%
11. Indicate the percentage of your practice in:
1. civil proceedings: 20%
2. criminal proceedings: 80%
d. State the number of cases in courts of record, including cases before
administrative law judges, you tried to verdict, judgment or final decision (rather
than settled), indicating whether you were sole counsel, chief counsel, or associate
counsel.
I have tried six cases to verdict, four as an Assistant United States Attorney, and
two before administrative agencies as an associate at Gibson, Dunn & Crutcher
LLP. Of the four cases I tried as an AUSA, I was chief counsel in two and
associate counsel in two. All were federal criminal jury trials. Of the two
administrative proceedings in which I participated in private practice, I served as
12
associate counsel working on small teams of four to five attorneys.
1. What percentage of these trials were:
1. jury: 67%
2. non-Jury: 33%
e. Describe your practice, if any, before the Supreme Court of the United States.
Supply four (4) copies of any briefs, amicus or otherwise, and, if applicable, any
oral argument transcripts before the Supreme Court in connection with your
practice.
None.
17. Litigation: Describe the ten (10) most significant litigated matters which you personally
handled, whether or not you were the attorney of record. Give the citations, if the cases
were reported, and the docket number and date if unreported. Give a capsule summary of
the substance of each case. Identify the party or parties whom you represented; describe
in detail the nature of your participation in the litigation and the final disposition of the
case. Also state as to each case:
a. the date of representation;
b. the name of the court and the name of the judge or judges before whom the case
was litigated; and
c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.
1. Us. v. Livoti, 756 F. App'x 841 (l1th Cir. 2018)
I served as appellate counsel for the United States in the defendant's appeal of his
wire fraud and money laundering convictions. Following a lengthy jury trial, the
defendant was convicted for his role in a large-scale Ponzi scheme that defrauded
thousands of investors who purchased viatical insurance settlements from Mutual
Benefits Corporation. I reviewed the voluminous trial record and authored the
government's brief on appeal. I also presented oral argument before the United
States Court of Appeals for the Eleventh Circuit, which resulted in affirmance of
all of the defendant's convictions. For my work on this appeal, I received an "ATeam"
Award for "Truly Exceptional Achievement & Merit." My representation
in this case lasted from 2016 through 2018.
Court and Judges:
U.S. Court of Appeals for the Eleventh Circuit, Hon. William H. Pryor, Jr., Jane
A. Restani (Senior Judge sitting by designation from United States Court of
International Trade), and Jill A. Pryor (recused after oral argument)
13
Opposing Counsel:
Richard Klugh, Esq.
Seitles & Litwin
40 North West 3rd Street
Penthouse One
Miami, Florida 33128
(305) 536-1191
2. Us. v. Sanchez, 940 F.3d 526 (11th Cir. 2019), cert. denied, 205 L. Ed. 2d
364 (Nov. 25, 2019).
I served as appellate counsel for the United States in the defendant's appeal of his
sentence under the Armed Career Criminal Act. The defendant's principal
contention on appeal was that his prior conviction for New York second-degree
murder did not qualify as a "violent felony" under the Armed Career Criminal
Act. This is so, he claimed, because second-degree murder includes acts of
"omission," as in the case of a parent who intentionally, and with the intent to
cause death, withholds food from a child or refuses to seek medical care. I
authored the government's brief on appeal and presented oral argument before the
U.S. Court of Appeals for the Eleventh Circuit. The Eleventh Circuit affirmed the
defendant's sentence in a published decision, concluding that intentionally
withholding food or medicine with the intent to cause bodily injury or death
constitutes a "use" of "physical force" under the Armed Career Criminal Act. My
representation in this case lasted from 2018 through 2019.
Court and Judges:
U.S. Court of Appeals for the Eleventh Circuit, Hon. Frank M. Hull (Senior
Judge), Britt C. Grant, and Robin S. Rosenbaum
Opposing Cowlsel:
Sara W. Kane
Assistant Federal Public Defender
Southern District of Florida
150 West Flagler Street, Suite 1700
Miami, Florida 33130
(305) 536-6900
3. Us. V. Gibbs, 917 F.3d 1289 (l1th Cir. 2019)
I served as appellate counsel for the United States in the defendant's appeal of his
conviction. The defendant claimed that law enforcement officers acted
unreasonably under the Fourth Amendment when they seized a loaded gun from
14
his pocket during a traffic stop. I authored the government's brief on appeal and
presented oral argument before the U.S. Court of Appeals for the Eleventh
Circuit. In a published decision, the court affirmed the defendant's conviction,
holding that officers had a lawful basis to detain the defendant based on an
undisputed traffic violation, and that officers did not convert the lawful stop into
an unlawful detention merely by drawing their weapons. For my work on this
appeal, I received a Certificate of Appreciation in recognition of my "outstanding
contribution to the mission of the Department of Justice and the Southern District
of Florida." My representation occurred from 2018 through 2019.
Court and Judges:
U.S. Court of Appeals for the Eleventh Circuit, Hon. Stanley Marcus (Senior
Judge), Joel Dubina (Senior Judge), and Richard W. Goldberg (Senior Judge
sitting by designation from U.S. Court of International Trade)
Opposing Counsel:
Arun Gopal Ravindran
Assistant Federal Public Defender
Southern District of Florida
150 West Flagler Street, Suite 1700
Miami, Florida 33130
(305) 536-6900
4. Us. v. Rodriguez, No. 14 CR 20577 (S.D. Fla. 2014)
I served as lead trial counsel for the United States in a criminal prosecution of the
named defendant for possessing a firearm and ammunition as a previously
convicted felon. The defendant moved to suppress the loaded firearm, but the
district court denied his motion after an evidentiary hearing. The court then held
a contested pre-trial hearing on various issues, including the defendant's motion
to preclude DNA evidence, which the district court denied. Following a jury trial,
the defendant was found guilty of the sole count in the indictment, and his
conviction was affirmed on appeal. My work on this case occurred in 2014
through 2015.
Court and Judge:
U.S. District Court for the Southern District of Florida, Hon. K. Michael Moore
(Chief Judge)
Co-Counsel:
Breezye Telfair
Assistant United States Attorney
15
Southern District of Florida
99 North East 4th Street
Miami, Florida 33132
(305) 961-9001
Opposing Counsel:
Jason Grey
The Law Offices of Grey & Mourin
1800 South West 1st Street, Suite 206
Miami, Florida 33135
(305) 325-8119
5. Us. v. Darbouze, No. 14 CR 20577 (S.D. Fla. 2014)
I served as associate trial counsel for the United States in a criminal prosecution
of the named defendant for possession and attempted receipt of child
pornography. The evidence at trial showed that the defendant shared a significant
volume of child pornography on a peer-to-peer network and possessed child
pornography on several electronic devices. Following a jury trial, the defendant
was found guilty on all counts, and his convictions were affirmed on appeal. I
participated in this case in 2014.
Court and Judge:
U.S. District Court of the Southern District of Florida, Hon. Beth Bloom
Co-Counsel:
Maurice Johnson
Assistant United States Attorney
Southern District of Florida
99 North East 4th Street
Miami, Florida 33132
(305) 961-9001
Opposing Counsel:
Christy 0' Connor
Deputy Federal Public Defender
Central District of California
321 East 2nd Street
Los Angeles, California 90012
(213) 894-2854
(Formerly Assistant FPD in Southern District of Florida)
16
Alex Arteaga-Gomez
Grossman Roth Yaffa Cohen
2525 Ponce de Leon, Suite 1150
Coral Gables, Florida 33134
(305) 442-8666
(Formerly Assistant FPD in Southern District of Florida)
6. Us. v. Eason, et al., 953 F.3d 1184 (11th Cir. Mar. 24, 2020) (Nos. 16-
15413,16-17796,18-12848)
I served as lead appellate counsel for the United States in these consolidated
criminal sentencing appeals. The question presented was whether the offense of
Hobbs IAct robbery, in violation of 18 U.S.C. § 1951(b)(l), qualifies as a "crime
of violence" as defined in Section 4B1.2(a) of the United States Sentencing
Guidelines. I authored the government's principal briefs on appeal and presented
oral argument before the U.S. Court of Appeals for the Eleventh Circuit. In
March 2020, the Court reversed the defendants' sentences, joining three other
circuits to conclude that Hobbs Act robbery includes threats to property alone and
therefore does not qualify as a "crime of violence" under Section 4B1.2(a) of the
Sentencing Guidelines. I worked on these cases in 2019 and 2020.
Court and Judges:
U.S. Court of Appeals for the Eleventh Circuit, Hon. Adalberto Jordan, Jill A.
Pryor, and John M. Walker (Senior Judge sitting by designation from U.S. Court
of Appeals for the Second Circuit)
Co-Counsel:
Laura Thomas Rivero
Assistant United States Attorney
Southern District of Florida
99 North East 4th Street
Miami, Florida 33132
(305) 961-9001
Nicole Mariani
Assistant United States Attorney
Southern District of Florida
99 North East 4th Street
Miami, Florida 33132
(305) 961-9001
Opposing Counsel:
Andrew L. Adler
17
Counsel for Jeffrey Lawson
Assistant Federal Public Defender
Southern District of Florida
One East Broward Boulevard
Fort Lauderdale, Florida 33301
(954) 356-7436
Joaquin Mendez, Esq.
Counsel for Carlton Styles
Law Offices of Joaquin Mendez, P.A.
201 Alhambra Circle Suite 1200
Coral Gables, Florida 33134
(305) 375-0886
Valentin Rodriguez
Law Offices of Valentin Rodriguez, P.A.
Counsel for Marlon Eason
120 South Dixie Highway, Suite 204
West Palm Beach, Florida 33401
(561) 832-7510
7. Us. v. Williams, 650 F. App'x 977 (11th Cir. 2016), cert. denied (2016)
I served as appellate counsel for the United States in the defendant's appeal of the
district court's denial of his motion to suppress. Following his release from
prison for armed carjacking and aggravated fleeing, the defendant was placed on
probation and subjected to several conditions, among them that he would submit
to warrantless searches of his residence. Pursuant to that search condition,
probation officers searched his residence and found evidence of stolen
government property. On appeal, the defendant raised a Fourth Amendment
challenge to the search, arguing that officers lacked reasonable suspicion of
criminal activity. The Eleventh Circuit affirmed the denial of his motion to
suppress, after which the defendant filed a petition for certiorari in the Supreme
Court. I assisted the Office of the Solicitor General in its successful brief in
opposition to certiorari. My participation in this appeal occurred in 2016.
Comt and Judges:
U.S. Court of Appeals for the Eleventh Circuit, Hon. Gerald Bard Tjoflat (Senior
Judge), Frank M. Hull (Senior Judge), and Beverly B. Martin
Opposing Counsel:
Andrew L. Adler
Assistant Federal Public Defender
Southern District of Florida
18
One East Broward Boulevard
Fort Lauderdale, Florida 33301
(954) 356-7436
8. Us. v. Hudson, No. 13 CR 29832 (S.D. Fla. 2013)
I served as lead trial counsel for the United States in a criminal prosecution of the
named defendant for possessing a firearm and ammunition as a previously
convicted felon. The defendant, an armed career criminal, burglarized the home
of a victim and stole a firearm and ammunition along with various other items.
The defendant argued that he did not knowingly possess the firearm and
ammunition because he took items indiscriminately from the home during the
burglary. The jury found him guilty after a trial, and the Eleventh Circuit
subsequently affirmed his conviction and sentence. After the direct appeal, I
handled the government's successful opposition to the defendant's postconviction
motion to vacate under 28 U.S.C. § 2255 and drafted the government's
response to the defendant's pending habeas petition under 28 U.S.C. §§ 2255(e)
and 2241. My participation in this case began in 2013 and continues.
Court and Judge:
U.S. District Court of the Southern District of Florida, Hon. Paul C. Huck
Co-Counsel:
Rosa Rodriguez-Mera
Resident Legal Advisor-Mexico
U.S. Department of Justice
Office of Overseas Prosecutorial Development Assistance and Training Attorney
(202) 514-1323
(Formerly AUSA in Southern District of Florida)
Opposing Counsel:
Stewart G. Abrams
Assistant Federal Public Defender
Southern District of Florida
150 West Flagler Street, Suite 1700
Miami, Florida 33130
(305) 536-6900
9. SEC v. Urban (Administrative Proceeding File No. 3-13655)
As an associate at Gibson, Dunn & Crutcher LLP, I was a member of a small trial
team that represented the former general counsel of a brokerage firm in an
enforcement proceeding before an administrative law judge of the U.S. Securities
19
and Exchange Commission. The Division of Enforcement alleged that the former
general counsel failed reasonably to supervise a retail broker of the firm who pled
guilty to federal securities fraud. After a 13-day administrative trial in 2010, the
administrative law judge issued an initial decision dismissing the administrative
proceeding. I participated substantially in the pre-and-post trial briefing and also
in the briefing on appeal, which resulted in the U.S. Securities and Exchange
Commission dismissing the proceeding. My participation in the case began in
2009 and concluded in 2012.
Administrative Court and Judge/Commissioners:
U.S. Securities and Exchange Commission, Chief Administrative Law Judge
Brenda Murray (retired)
U.S. Securities and Exchange Commission, Commissioners Luis A. Aguilar and
Troy A. Paredes (former Commissioners)
Co-Counsel:
John H. Sturc
George Washington University School of Law
Professorial Lecturer in Law
2000 H Street, N.W.
Washington, D.C. 20052
(202) 994-1010
(Formerly Partner at Gibson, Dunn & Crutcher LLP)
David P. Burns
U.S. Department of Justice
Principal Deputy Assistant Attorney General
National Security Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202) 514-2000
(Formerly Partner at Gibson, Dunn & Crutcher LLP)
10. Dep 't of Enforcement v. Brinck (Disciplinary Proceeding No.
2008014621701)
As an associate at Gibson, Dunn & Crutcher LLP, I was a member of a small trial
team that represented the former head of the fixed income desk at an investment
banking firm. The Enforcement Division of the Financial Industry Regulatory
Authority alleged that the respondent engaged in fraud when he authorized the
purchase of auction rate securities for corporate clients. After a 10-day
evidentiary hearing before a three-member disciplinary hearing panel of the
Financial Industry Regulatory Authority, the panel ruled unanimously that the
20
Department of Enforcement failed to prove its fraud allegation, and the opinion
credited the respondent's belief in the safety and liquidity of the investments. My
participation in this case occurred in 2010 through 2012.
Administrative Court and Hearing Officer:
Financial Industry Regulatory Authority, Rochelle S. Hall, Administrative
Hearing Officer, unable to find names of other two panelists who served on
Hearing Panel
Co-Counsel:
Barry Goldsmith
Gibson, Dunn & Crutcher LLP
200 Park A venue
New York, New York 10166
(212) 351-4000
Opposing Counsel:
Daniel D. McClain
Gary M. Lisker
Financial Industry Regulatory Authority
1735 K Street, N.W.
Washington DC, 20006
(301) 590-6500
18. Legal Activities: Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters that did not
involve litigation. Describe fully the nature of your participation in these activities. List
any client(s) or organization(s) for whom you performed lobbying activities and describe
the lobbying activities you performed on behalf of such client(s) or organizations(s).
(Note: As to any facts requested in this question, please omit any information protected
by the attorney-client privilege.)
As an Assistant United States Attorney in the Appellate Division, I serve in a liaison role
to prosecutors in the trial divisions. I provide advice on charging, suppression,
evidentiary, trial, and post-conviction questions. I also periodically review trial-level
pleadings and consult with prosecutors on legal issues arising on remand from the United
States Court of Appeals for the Eleventh Circuit.
Beyond my liaison responsibilities, I review briefs authored by other appellate attorneys,
participate in preparation sessions for oral arguments, consult with Appellate Division
leadership on adverse rulings, and help train and mentor new attorneys on legal writing,
sentencing practice, and suppression issues under the Fourth Amendment.
21
In the post-conviction context specifically, I provide ongoing advice to prosecutors on
various issues arising out of the Supreme Court's decisions in Johnson v. Us., 135 S. Ct.
2551 (2015), Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and Us. v. Davis, 139 S. Ct.
2319 (2019). I also assist prosecutors in evaluating the merits of habeas petitions brought
under 28 U.S.C. § 2255(e). More recently, I have worked on matters stemming from the
First Step Act of 20 18.
I have not performed any lobbying activities.
19. Teaching: What courses have you taught? For each course, state the title, the institution
at which you taught the course, the years in which you taught the course, and describe
briefly the subject matter of the course and the major topics taught. If you have a
syllabus of each course, provide four (4) copies to the committee.
None.
20. Deferred Income/ Future Benefits: List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers, clients or
customers. Describe the arrangements you have made to be compensated in the future
for any financial or business interest.
None.
21. Outside Commitments During Court Service: Do you have any plans, commitments,
or agreements to pursue outside employment, with or without compensation, during your
service with the court? If so, explain.
I have no plans, commitments, or agreements to pursue outside employment, whether
compensated or not, if I am confirmed.
22. Sources of Income: List sources and amounts of all income received during the calendar
year preceding your nomination and for the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties, licensing fees, honoraria, and other items
exceeding $500 or more (if you prefer to do so, copies of the financial disclosure report,
required by the Ethics in Government Act of 1978, may be substituted here).
When my nomination is formally transmitted to the Senate, I will file my mandated
Financial Disclosure Report and will supply a copy to this Committee.
23. Statement of Net Worth: Please complete the attached financial net worth statement in
detail (add schedules as called for).
Please see the attached Net Worth Statement.
22
24. Potential Conflicts of Interest:
a. Identify the family members or other persons, parties, categories of litigation, and
financial arrangements that are likely to present potential conflicts-of-interest
when you first assume the position to which you have been nominated. Explain
how you would address any such conflict if it were to arise.
If confirmed, I would recuse myself from any litigation or proceeding in which I
have ever played a role. For a period of time, I anticipate recusing in all cases
brought by the United States Attorney's Office for the Southern District of Florida
and all civil matters defended by the United States Attorney's Office, to the extent
required by 28 U.S.C. § 455, the Code of Conduct for United States Judges,
policies of the district court, and all applicable rules regarding ethics and conflicts
of interest. I will evaluate any other real or potential conflict, or relationship that
could give rise to an appearance of a conflict, on a case-by-case basis, including
taking input from the parties when needed, and determine appropriate action,
including recusal where necessary;
I might also hear cases from Gibson, Dunn & Crutcher LLP and its lawyers. As a
former Gibson Dunn lawyer, I would need to consider possible recusal in those
cases as required by 28 U.S.C. § 455, the Code of Conduct for United States
Judges, policies of the district court, and all applicable rules regarding ethics and
conflicts of interest.
b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.
If confirmed, I will carefully review and address any real or potential conflicts by
reference to 28 U.S.C. § 455 and Canon 3 of the Code of Conduct for United
States Judges, and any and all other laws, rules, and practices governing such
circumstances.
25. Pro Bono Work: An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for "every lawyer, regardless of
professional prominence or professional workload, to find some time to participate in
serving the disadvantaged." Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each.
In 2004, while serving as a paralegal in the Civil Rights Division of the U.S. Department
of Justice, I participated in a Department-organized educational outreach program with
the Thurgood Marshall Academy in Southeast Washington D.C. I went to the school
several times a month to read and tutor young children.
While in private practice, I participated in pro bono matters. For example, as an associate
at Gibson, Dunn & Crutcher LLP, another associate attorney and I devoted approximately
80 hours to representing a pro bono client in a child custody and child support matter.
23
Following mediation, we helped secure a favorable custody and parenting arrangement
that was later approved by the Superior Court of the District of Columbia. Similarly, as a
summer associate at Squire Sanders LLP (now Squire Patton Boggs), I assisted a
litigation partner in the pro bono representation of indigent defendants in criminal
proceedings in Florida state court.
Since becoming an Assistant United States Attorney in 2013, legal pro bono
opportunities have been limited, because I am prohibited from practicing law outside of
my office except in very limited circumstances. In my community, however, I volunteer
at my children's school throughout the year, and more recently in 2020, I began
volunteering informally for a local fundraiser to support the Myocarditis Foundation.
26. Selection Process:
a. Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination and
the interviews in which you participated). Is there a selection commission in your
jurisdiction to recommend candidates for nomination to the federal courts? If so,
please include that process in your description, as well as whether the commission
recommended your nomination. List the dates of all interviews or
communications you had with the White House staff or the Justice Department
regarding this nomination. Do not include any contacts with Federal Bureau of
Investigation personnel concerning your nomination.
On June 5, 2019, I received an email from the Office of Senator Rubio advising
me that Senator Rubio wanted to consider me for a judicial vacancy in the
Southern District of Florida. On June 17,2019, I submitted an application to
Senator Rubio's Judicial Advisory Commission for the Southern District of
Florida. On June 24, 2019, I interviewed with Senator Rubio's Advisory
Commission in Fort Pierce, Florida. On July 10, 2019, Senator Scott's General
Counsel interviewed me by phone. On August 8, 2019, I interviewed in
Washington, D.C. with officials from the White House Counsel's Office and the
Department of Justice's Office of Legal Policy. Since then, I have been in contact
with officials from the White House Counsel's Office and Office of Legal Policy.
On March 6, 2020, I was informed by the White House Counsel's office that
appropriate clearance processes would commence for my possible nomination.
b. Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any currently pending or specific case, legal issue or question
in a manner that could reasonably be interpreted as seeking any express or
implied assurances concerning your position on such case, issue, or question? If
so, explain fully.
No.
2
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Wed Sep 07, 2022 3:24 am
Aileen [Mercedes] Cannon
by Wikipedia
Accessed 9/6/22
[x]
Aileen Cannon
Cannon in 2021
Judge of the United States District Court for the Southern District of Florida
Incumbent
Assumed office: November 13, 2020
Appointed by: Donald Trump
Preceded by: Kenneth Marra
Personal details
Born: Aileen Mercedes Cannon, 1981 (age 40–41), Cali, Colombia
Education: Duke University (BA); University of Michigan (JD)
Aileen Mercedes Cannon (born 1981)[1] is a United States district judge of the United States District Court for the Southern District of Florida. She was nominated by Donald Trump and confirmed by the United States Senate in 2020.
Early life and education
Aileen Mercedes Cannon was born in 1981 in Cali, Colombia. Her mother had fled Cuba under Fidel Castro at the age of seven.[2]
Cannon attended the University of Seville in Spain in 2001. She earned a Bachelor of Arts from Duke University in 2003, and a Juris Doctor, magna cum laude, from the University of Michigan Law School in 2007. She was inducted into the Order of the Coif and began her legal career as a law clerk to judge Steven Colloton of the United States Court of Appeals for the Eighth Circuit.[3]
Career
Cannon worked as an associate at Gibson, Dunn & Crutcher from 2009 to 2012. She served as an assistant United States Attorney for the Southern District of Florida beginning in 2013.[3] Cannon has been a member of the Federalist Society since 2005.[1]
Federal judicial service
On April 29, 2020, Trump announced his intent to nominate Cannon to serve as a United States district judge of the United States District Court for the Southern District of Florida.[3] She was nominated to the seat vacated by judge Kenneth Marra, who assumed senior status on August 1, 2017. On May 21, 2020, her nomination was sent to the United States Senate.[4] The Senate Judiciary Committee held a hearing on her nomination on July 29, 2020.[5] On September 17, 2020, her nomination was reported out of committee by a 16–6 vote.[6] The Senate voted 56–21 to confirm her nomination on November 12, 2020.[7] She received her judicial commission on November 13, 2020.
Notable cases
Cannon heard the case of Trump v. U.S.,[8] where former U.S. president Trump asked the court to appoint a special master to review the materials seized from Mar-a-Lago in August 2022.[9][10][11] On August 27, Cannon signaled she was inclined to grant Trump's request to appoint a special master.[12] On August 29, the U.S. Justice Department told Cannon it had completed its review of materials that may fall under attorney–client privilege.[13] She ruled in favor of Trump on September 5, 2022.[14] The decision was widely criticized, including by legal scholars from across the political spectrum,[15] a Bush administration Homeland Security official,[16] and former prosecutors.[17][18]
References
United States Senate Committee on the Judiciary: Questionnaire for Judicial Nominees: Aileen Cannon
Sneed, Tierney; Cohen, Marshall (September 1, 2022). "Here is a breakdown of the key players involved in today's hearing". CNN.
"President Donald J. Trump Announces Judicial Nominees". whitehouse.gov. April 29, 2020. Retrieved April 29, 2020 – via National Archives. Public Domain This article incorporates text from this source, which is in the public domain.
"Ten Nominations Sent to the Senate", The White House, May 21, 2020
Nominations for July 29, 2020
Results of Executive Business Meeting – September 17, 2020, Senate Judiciary Committee
"On the Nomination (Confirmation: Aileen Mercedes Cannon, of Florida, to be U.S. District Judge for the Southern District of Florida)" United States Senate, November 12, 2020
Crolina Bolado, “Fla. Judge Tells Trump To Substantiate Special Master Bid”, Law360, 23 August 2022.
Feuer, Alan; Haberman, Maggie (August 27, 2022). "Judge Signals Intent to Appoint Special Master in Mar-a-Lago Search". The New York Times. ISSN 0362-4331. Retrieved August 29, 2022.
Cheney, Kyle; Gerstein, Josh (August 23, 2022). "Judge seeks clarity about Trump's move on records seized from Mar-a-Lago". POLITICO. Retrieved August 29, 2022.
Mangan, Dan (August 23, 2022). "Judge orders Trump to give details about Mar-a-Lago search warrant lawsuit". CNBC. Retrieved August 29, 2022.
Cheney, Kyle; Gerstein, Josh (August 27, 2022). "Judge signals she's likely to back Trump request for Mar-a-Lago special master". POLITICO. Retrieved August 29, 2022.
Mallin, Alexander (August 29, 2022). "DOJ tells judge it has completed review of possible attorney-client privileged materials seized from Mar-a-Lago". ABC News. Retrieved August 29, 2022.
Mangan, Dan (September 5, 2022). "Judge authorizes special master to review Trump Mar-a-Lago raid documents, temporarily blocks DOJ using records for probe". CNBC. Retrieved September 5, 2022.
Benen, Steve (September 6, 2022). "Legal experts slam special master ruling as 'nutty' and 'radical'". MSNBC.com. Retrieved September 6, 2022.
Savage, Charlie (September 5, 2022). "'Deeply Problematic': Experts Question Judge's Intervention in Trump Inquiry". The New York Times. ISSN 0362-4331. Retrieved September 6, 2022.
Rodgers, Jennifer (September 6, 2022). "Opinion: Judge's ruling for Trump is astonishing". CNN. Retrieved September 6, 2022.
Weissman, Andrew (September 6, 2022). "A Ruling Untethered to the Law". The Atlantic. Retrieved September 6, 2022.
External links
Aileen Cannon at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.
*************************************
Full disclosure: buying Venezuela's press with U.S. tax dollars
Author: Jeremy Bigwood
Date: September-October 2010
From: NACLA Report on the Americas (Vol. 43, Issue 5)
Publisher: Taylor & Francis Ltd.
Document Type: Essay
THE U.S. STATE DEPARTMENT IS SECRETLY funneling millions of dollars to Latin American journalists, according to documents obtained in June under the Freedom of Information Act (FOIA). (1) The 20 documents released to this author--including grant proposals, awards, and quarterly reports--show that between 2007 and 2009, the State Department's little-known Bureau of Democracy, Human Rights and Labor (state.gov/g/drl) channeled at least $4 million to journalists in Bolivia, Guatemala, Haiti, Nicaragua, and Venezuela, through the Pan American Development Foundation (PADF, padf.org), a Washington-based grant maker. (2) The documents shed light on one small portion of the overall U.S. effort to covertly fund journalists all over the world.
The records released thus far pertain only to one particular program, called "Fostering Media Freedom in Venezuela," for which the State Department gave PADF $700,000 for the period 2007-09. The program provides journalism grants to unnamed individuals and sponsors journalism education programs at four regional universities. (3) In carrying out this project, PADF collaborated with Venezuelan media NGOs associated with the country's political opposition, only two of whose names were not redacted from the declassified documents. It is unclear whether the program has continued. If it has, and the State Department gave PADF the previously awarded amount, the U.S. government will have spent almost $1.5 million on journalism development in Venezuela since 2007.
Both the State Department and PADF declined to comment for this article.
"Fostering Media Freedom in Venezuela" is just one small component of the U.S. government's covert funding of foreign news outlets and journalists. Not only the State Department but also the Department of Defense, the U.S. Agency for International Development (USAID), the National Endowment for Democracy (NED), the Broadcasting Board of Governors (BBG), and the U.S. Institute for Peace (USIP) all support "media development" programs in more than 70 countries. The U.S. government spent $82 million in 2006 alone on global media initiatives (not counting money from the Pentagon, the CIA, or U.S. embassies), according to a 2008 NED report. (4)
These government entities fund hundreds of foreign nongovernmental organizations (NGOs), journalists, policy makers, journalist associations, media outlets, training institutes, and academic journalism faculties. Grant sizes range from a few thousand dollars to millions. For some groups and individuals, the funding can come from more than one U.S. government source and can be disbursed either directly from a U.S. embassy or through intermediaries, which are usually U.S. subcontractors or "independent international nonprofit organizations," like PADF.
By serving as an intermediary, PADF has until now hidden the State Department's role in developing Venezuelan media--one of the political opposition's most powerful weapons against President Hugo Chavez and his Bolivarian movement. Neither the State Department, PADF, nor the Venezuelans whom they fund have disclosed the program's existence. Yet, as one document notes, the State Departments own policies require "all publications" that it funds to "acknowledge the support." (5) The provision was simply waived for PADF. "For the purposes of this award," the document reads, "... the recipient is not required to publicly acknowledge the support of the U.S. Department of State." The document does not explain how the program's purposes--which, among other things, include establishing professional norms in journalism--do not require PADF or its "sub-grantees" to acknowledge that they are funded by the. U.S. government.
Although $700,000 may not seem like a lot of money, the funds have been strategically designed to underwrite the best of Venezuela's news media and recruit young journalists. The documents detail a series of grants doled out to unnamed individual journalists, including two kinds of grants "for innovative reporting and investigative reporting," with the winning content disseminated online "and to selected independent media audiences." (6) We don't know who won these grants, but we do know that they were substantial. One of them consisted of 10 one-year grants of $25,000 each. For many journalists, especially in Latin America, $25,000 a year is a high salary. The PADF also holds "2 competitions, one per year, for a total of $20,000 in funding awarded to at least 6 entries." (7)
PADF's Venezuela program also supports journalism education, which is undertaken to produce investigative work "via innovative media technologies." (8) This grant supports "a series of trainings for local journalists focused on the basic and advanced skills of Internet-based reporting and investigative reporting," aiming to engage "a wide range of Venezuelan media organizations and news outlets, including 4 university partners." (9) A quarterly report from January-March 2009 mentions courses at Andres Bello Catholic University, the Metropolitan University, the Central University of Venezuela, and Santa Maria University (10) PADF proposes targeting universities in the capital city of Caracas as well as regional campuses in "the Andes, Center East, Zulia and the Western region of the country."
These initiatives have been undertaken with the collaboration of well-connected opposition NGOs that focus on media. Only one of the documents names any of these organizations--which was probably an oversight on the State Department's part, since the recipients' names and a lot of other information are excised in the rest of the documents. A 2007 document names Espacio Publico (espaciopublico.org) and Instituto Prensa y Sociedad (ipys.org.ve) as recipients of "subgrants." Neither of these organizations have disclosed their participation in the PADF Venezuela program. On its website, Espacio Publico describes itself as a "non-profit, non-governmental civil association that is independent and autonomous of political parties, religious institutions, international organizations or any government" (emphasis added). The other "subgrantee," the Venezuelan chapter of Instituto Prensa y Sociedad (IPyS-Ve), is a Peru-based journalism organization funded by USAID and the NED. (11) Both groups strongly criticize the Chavez government for its alleged assault on free expression and other human rights in Venezuela.
The disclosure in July of these organizations' collaboration with PADF led to calls in Venezuela for a public investigation, forcing Espacio Publico and IPyS to issue statements on the matter. (12) "In Venezuela, it is in no way a crime" for NGOs to accept international financing, IPyS declared. The organization denounced the revelations as the latest example in a series of "threats, slanders, and defamatory campaigns ... put forward by [pro-Chavez] political agents with absolute impunity." This was little more than an attempt, IPyS emphasized, to paint the organization and its allies as foreign agents of the U.S. government. Espacio Publico issued a similar statement from the National College of Journalists and the National Press Workers' Union.
Neither statement addressed the real issue: the NGOs' failure to disclose the U.S. government's funding of their activities. Moreover, the documents released thus far do not indicate that the Venezuelan journalists and students who participated in this program were acting as direct "agents" of the U.S. government. Indeed, those who benefitted from the PADF grants and education programs may not have known that the State Department was funding them. And so far as we know, the State Department was not dictating editorial policy in Venezuela or providing its sponsored journalists with talking points. However, the NGOs that worked with PADF targeted their grants and training programs at journalists who were disposed to pursue reporting that bolstered the U.S. posture toward Venezuela--while never disclosing the source of their funding.
TRADITIONALLY, THE LEADING "democracy promoter" in Venezuela is USAID, followed by the National Endowment for Democracy (NED), with about a third as much funding. In 2005 a FOIA request yielded documents showing that the two entities were underhandedly directing millions of dollars to Venezuelan opposition NGOs. (13) At the time, USAID's main intermediary was Development Alternatives Inc. (DAI), a Maryland-based contractor, along with smaller entities associated with the U.S. government, including the National Democratic Institute, the International Republican Institute, and Freedom House. After these findings were published, DAI was forced to close its office in Caracas. With the USAID and NED covers blown wide open, the U.S. government apparently sought new funding channels, at least one of which PADF has provided.
PADF's main office is housed within the Organization of American States (OAS), granting its officers privileged access to the big players in hemispheric affairs. Funded by various U.S. government agencies and a few private sources--including Stanford Financial Group (recently under investigation for bad banking practices and its CIA connections) and ex-Cuban rum maker Bacardi--PADF has worked in Latin America and the Caribbean since 1962, generally focusing on economic development and disaster relief. (14) Its mission statement, however, does leave open the possibility of getting into the "democracy promotion" racket: The online mission statement says the organization "empowers disadvantaged people and communities" not only "to achieve sustainable economic and social progress" but also "to strengthen their ... civil society" (emphasis added). "Strengthening civil society," like "promoting democracy," is NGO-speak for meddling in another country's politics, even promoting so-called regime change. As one of the documents notes, for example, PADF has worked in Cuba "with USAID and private funding to nurture the emergence of independent civil society and entrepreneurship and accelerate a democratic transition" (emphasis added). (15)
PADF emphasized its solid connections and years of experience in its bid to work as the State Department's intermediary. In one grant proposal, the organization described itself as "affiliated with the OAS" and said it "operates independently of bureaucratic obstacles that could otherwise slow implementation and sub-grant approvals." (16) PADF added that it already had "over two years of experience working in Venezuela to strengthen local civil society groups working in close coordination with the local OAS office with an ongoing USAID/[Office of Transition Initiatives] grant." It is "one of the few major international groups that has been able to provide significant cash grants and technical assistance to Venezuela NGOs," the proposal said, adding: "To date we have provided over 10 grants to strengthen the institutional capacity of local groups that provides us with unique capability and experience to carry out the proposed ... project."
PADF furthermore advertised that it has access to many sources of cash flow: "In addition we can facilitate private sector cash and in-kind donations from both US and in-country donors to complement project resources, if and when needed. PADF's partnerships with regional business and civil society associations and other regional groupings further enhance our capabilities. They provide for rapid access to international agencies, hemispheric leaders and networks of corporate donors and NGO partners." (17) PADF even offered a novel way of evading the official Venezuelan exchange rate. "By using PADF's new 'bond swap' system to transfer funds to Venezuela," PADF noted, "we calculate that the additional local currency generated will be sufficient to meet all in-country expenses within the new US$ budget limit." (18) In short, PADF offered its services as a dynamic money-laundering machine.
THE REVELATIONS THAT THE United States is funding journalism in Venezuela and elsewhere in the hemisphere come on the heels of a report released in May by the center-right think tank FRIDE (fride.org), based in Madrid, which found that since 2002, the United States has funneled an estimated $3 million to $6 million every year to "small projects with political parties and NGOs" in Venezuela through an alphabet soup of shifting, intertwined channels. (19) (The FRIDE report was removed from the group's website soon after it was publicized in June.) Thus, the government support for media fits together with a larger, long-term U.S. effort to strengthen its favored political movement in Venezuela and elsewhere throughout the hemisphere in the era of Latin America's "left turn."
Today's U.S. media sponsorship has deep roots in the history of North American interventionism. Clandestine U.S. funding of media in various countries was first exposed in the 1970s during two congressional investigations convened after the Watergate scandal. Media had by then played a critical role in several U.S. interventions in Latin America, especially after the 1954 invasion of Guatemala and overthrow of President Jacobo Arbenz. During that formative operation, a radio station called La Voz de la Liberacion broadcast messages denouncing Arbenz and cheerleading the invasion. It claimed to be Guatemalan but was in fact run by the CIA, airing from Honduras. (20)
The "successful" Guatemala operation quickly became a model emulated in subsequent interventions. As one CIA analyst put it in the 1980s: "The language, the arguments, and the techniques of the Arbenz episode were used in Cuba in the early 1960s, in Brazil in 1964, in the Dominican Republic in 1965, and in Chile in 1973." (21) Over time, however, U.S. propaganda became more sophisticated and more clandestine. Rather than produce and disseminate its own propaganda, the CIA funded private media companies and journalists, often providing them material to publish or broadcast. During the run-up to the 1973 coup that overthrew Chilean president Salvador Allende, for example, the CIA had established editorial control of El Mercurio, the country's most prestigious newspaper, which ran constant articles and editorials against the Allende government and in favor of neoliberal economic policies.
As the research of Peter Kornbluh shows, the CIA in less than a year spent $1.95 million on El Mercurio, which was also funded by the ITT Corporation, the CIA's main private collaborator in Chile. "Sustained by the covert funding," Kornbluh notes, "the Edwards media empire [which owned the paper] became one of the most prominent actors in the downfall of Chilean democracy. Far from being a news outlet, El Mercurio positioned itself as a bullhorn of organized agitation against the government." The newspaper was essential, even decisive, in setting the stage for the coup, as the CIA itself recognized. (22) When asked in 2008 if the CIA still funds foreign journalists, agency spokesman Paul Gimigliano said, "The CIA does not, as a matter of course, publicly deny or confirm these kinds of allegations." (23)
After the congressional investigations in the 1970s, the burden of funding overseas media shifted to entities like USAID and NED, the latter described by The New York Times as "a quasi-governmental foundation created by the Reagan Administration in 1983 to channel millions of Federal dollars into anti-Communist private diplomacy." (24) One of the NED's first major projects was supporting La Prensa, a major pro-U.S. newspaper in Nicaragua previously funded by the CIA. The NED began funding the paper in 1984 with a grant of two years for $150,000 through a Washington cutout called PRODEMCA. (25)
By early 1987, NED delegations were openly visiting La Prensa. During the 1990 presidential campaign, NED provided the newspaper with at least $ 1 million, with much of the funding being funneled through Venezuelan and Costa Rican pass-throughs. (26) Thanks in part to this and other U.S. democracy promotion initiatives, the pro-U.S. candidate Violeta Chamorro--whose family owned La Prensa--was elected president in 1990.
The U.S. governments use of news media to achieve political outcomes is not limited to efforts abroad. In January 2005 a series of reports revealed that various government agencies had doled out money to at least three U.S. columnists who supported the Bush administration's social policies, including the No Child Left Behind law and the Healthy Marriage Initiative. (27) And in 2008, The New York Times revealed that the Pentagon had hired more than 75 retired military officers to appear on network and cable news shows to promote the Iraq war. (28)
"Records and interviews," the Times wrote, "show how the Bush administration has used its control over access and information in an effort to transform the analysts into a kind of media Trojan horse--an instrument intended to shape terrorism coverage from inside the major TV and radio networks." To date, none of the networks that featured these undisclosed Bush administration publicists--ABC, CBS, NBC, MSNBC, CNN, and Fox--have mentioned the Times story, which won a Pulitzer Prize. (29)
Although these commentators failed to disclose their arrangements with the U.S. government, they at least presented themselves as editorialists. Yet perhaps the worst recent example of the U.S. governments meddling in news media anywhere involved Florida-based "reporters" who covered Cuba, U.S.-Cuban relations, and the Cuban American community. The story was first publicized in September 2006, when The Miami Herald reported that at least 10 South Florida journalists, including three staffers at the Heralds Spanish-language sister paper, El Nuevo Herald, had been moonlighting for Radio and TV Marti, the Miami-based government broadcaster that targets Cuba with U.S. propaganda. (30) New documents released in response to a FOIA request and made public in June show that a handful of these journalists were working for the government while producing unerringly hostile coverage of five Cubans convicted of espionage in 2001. (31) The lawyers for the Cuban Five, as they are known, tried unsuccessfully to have the trial moved out of Miami, where the unsequestered jury was likely to be exposed to the prejudicial coverage. (32)
AT A TIME WHEN U.S. JOURNALISM is widely acknowledged to be in decline--with thousands of people laid off from the industry since 2008--it is ironic that the government has seen fit to pump millions of tax dollars into developing the profession elsewhere, even as calls for a government "bailout" of domestic journalism are ignored or ridiculed as socialistic. (33) Another irony is that undisclosed, foreign state support for ostensibly independent reporting violates basic principles of journalism's professional integrity; yet much of the U.S. funding has been undertaken in the name of fostering professionalism and inculcating journalistic standards.
Reporters in Venezuela and elsewhere in the region can and should hold their governments to account. But they should be wary of grants and seminars administered through U.S.-connected NGOs, since covert funding may in some cases cause unwitting recipients to break their countries' laws. In the end, U.S. officials will have to ask themselves if all this covert funding is really going to successfully help the opposition and "promote democracy"--or whether it will simply backfire and reveal how in practice, Obama's stated vision of hemispheric relations as guided by "mutual respect and common interests and shared values" is little more than lip service. (34)
(1.) All the documents cited in this article are available for download at http://www.archive-research.com/DRL-PADF.
(2.) The $4 million figure appears in Pan American Development Fund (PADF), "Application for Assistance Award. Fostering Media Freedom in Venezuela. In Response to US Department of State-Bureau of Democracy, Human Rights and Labor (DRL) Solicitation DRL-07GR-011-GL0OWHA-103007," November 27, 2010. The five countries are mentioned in Jeffrey T. Berger, "Congressional Notification Transmittal Sheet," Department of State, May 19,2008.
(3.) Department of State, "Bureau/Program Specific Requirements," undated.
(4.) The $82 million figure is given in Center for International Media Assistance, National Endowment for Democracy (NED), "Empowering Independent Media: U.S. Efforts to Foster Free and Independent News Around the World. Inaugural Report: 2008," 22.
(5.) Department of State, "Bureau/Program Specific Requirements."
(6.) Ibid.
(7.) Teresa Fralish to Latoya Larker, "Action Memorandum," Department of State, undated.
(8.) Ibid.
(9.) PADF, "Application for an Assistance Award."
(10.) PADF, "Fostering Media Freedom in Venezuela. Grant no. S-LMAQM-08-GR-586. Quarterly Report to the U.S. Department of State," January-March 2009.
(11.) For a recent NED grant to IPyS-Ven, see "Attachment A. Program Description. Supporting Press Freedom--Venezuela," NED Grant no. 2005-373.0, pp. 4-6. For a recent example of USAID-IPyS collaboration, see "USAID: Peru Sponsors Awards and Latin American Seminar for Investigative Journalism on Narcotrafficking in Lima 2007," undated press release, U.S. Embassy in Peru.
(12.) Agence France-Presse, "Pide Chavez investigar recursos de ONG's en Venezuela," July 15, 2010.
(13.) For the documents released in 2005, see venezuelafoia.com.
(14.) Patrick Sawer, "Sir Allen Stanford in Spotlight Over CIA Spying Row With Venezuela," Telegraph.co.uk (London), November 9, 2008.
(15.) PADF, "Application for an Assistance Award."
(16.) Ibid.
(17.) Ibid.
(18.) PADF executive director John Sanbrailo to DRL foreign affairs officer Catherine Newling and program officer Teresa Fralish, memorandum, "Ref: PADF Proposal 'Fostering Media Freedom in Venezuela,' " March 25, 2008.
(19.) Susanne Gratius, "Assessing Democracy Assistance: Venezuela" (Madrid: Fundacion para las Relaciones Internacionales y el Dialogo Exterior [FRIDE], May 2010), 4.
(20.) John Elliston, Psywar on Cuba: The Declassified History of Anti-Castro Propaganda (Ocean Press, 1999), 20.
(21.) Quoted in Nick Cullather, Secret History: The CIA's Classified Account of Its Operations in Guatemala, 1952-1954, 2nd ed. (Stanford University Press, 2006), 110.
(22.) Peter Kornbluh The Pinochet File: A Declassified Dossier on Atrocity and Accountability (The New Press, 2003), 92-93.
(23.) Quoted in Jeremy Bigwood, "No Strings Attached?," In These Times, June 4, 2008.
(24.) Ben A. Franklin, "Democracy Project Facing New Criticisms," The New York Times, December 4, 1985.
(25.) NED, "Programs of the Endowment and Its Institutions in Nicaragua," 1988, cited in William I. Robinson, A Faustian Bargain: U.S. Intervention in the Nicaraguan Elections and American Foreign Policy in the Cold War Era (West-view Press, 1992), 203 n. 14.
(26.) Cristiana Chamorro to Carl Gershman and Barbara Haig, fax, February 10, 1989, reproduced in Ibid., 246-47.
(27.) Greg Toppo, "Education Dept. Paid Commentator to Promote Law," USA Today, January 7, 2005; Howard Kurtz, "Writer Backing Bush Plan Had Gotten Federal Contract," The Washington Post, January 26, 2005; Tom Hamburger, "Federal Contracts With Columnists Prompt Change in Policy," Los Angeles Times, January 28, 2005.
(28.) David Barstow, "Behind TV Analysts, Pentagon's Hidden Hand," The New York Times, April 20, 2008.
(29.) Glenn Greenwald, "The Pulitzer-Winning Investigation That Dare Not Be Uttered on TV," Salon.com, April 21, 2009.
(30.) Oscar Corral, "10 Miami Journalists Take U.S. Pay," The Miami Herald, September 8, 2006. According to the Government Accountability Office, Radio and TV Marti's coverage often presents "individual views as news" and includes "editorializing," "unsubstantiated reports," and "offensive and incendiary language." See General Accountability Office, "Broadcasting to Cuba: Actions Are Needed to Improve Strategy and Operations. Report to the Chairman, Subcommittee on International Organizations, Human Rights, and Oversight, Committee on Foreign Affairs, House of Representatives" (January 2009), 27-28.
(31.) The FOIA documents on the U.S. funding are available at freethefive.org/legalFront/FOIA/index.htm.
(32.) Jesse Freeston, "Media Took Gov't Cash During Trial of 'Cuban 5,'" The Real News Network, June 14, 2010.
(33.) For an argument in favor of government intervention to support journalism, see John Nichols and Robert W. McChesney, "How to Save Journalism," The Nation, January 7, 2010.
(34.) "To Learn From History, Not Be Trapped by It," Obama speech transcript, April 18, 2009, Port of Spain, Trinidad and Tobago.
Jeremy Bigwood is an investigative reporter whose work has appeared in American Journalism Review, The Village Voice, and several other publications. He covered Latin American conflicts from 1984 to 1994 as a photojournalist. A short version of this article originally appeared July 15 on nacla.org.
Copyright: COPYRIGHT 2010 Taylor & Francis Ltd.
http://www.tandf.co.uk/journals/
Source Citation
Source Citation
MLA 9th Edition APA 7th Edition Chicago 17th Edition Harvard
Bigwood, Jeremy. "Full disclosure: buying Venezuela's press with U.S. tax dollars." NACLA Report on the Americas, vol. 43, no. 5, Sept.-Oct. 2010, pp. 6+. Gale Academic OneFile, link.gale.com/apps/doc/A239911968/AONE?u=nm_p_oweb&sid=googleScholar&xid=3c14aa18. Accessed 6 Sept. 2022.
by Wikipedia
Accessed 9/6/22
[x]
Aileen Cannon
Cannon in 2021
Judge of the United States District Court for the Southern District of Florida
Incumbent
Assumed office: November 13, 2020
Appointed by: Donald Trump
Preceded by: Kenneth Marra
Personal details
Born: Aileen Mercedes Cannon, 1981 (age 40–41), Cali, Colombia
Education: Duke University (BA); University of Michigan (JD)
Aileen Mercedes Cannon (born 1981)[1] is a United States district judge of the United States District Court for the Southern District of Florida. She was nominated by Donald Trump and confirmed by the United States Senate in 2020.
Early life and education
Aileen Mercedes Cannon was born in 1981 in Cali, Colombia. Her mother had fled Cuba under Fidel Castro at the age of seven.[2]
Cannon attended the University of Seville in Spain in 2001. She earned a Bachelor of Arts from Duke University in 2003, and a Juris Doctor, magna cum laude, from the University of Michigan Law School in 2007. She was inducted into the Order of the Coif and began her legal career as a law clerk to judge Steven Colloton of the United States Court of Appeals for the Eighth Circuit.[3]
Career
Cannon worked as an associate at Gibson, Dunn & Crutcher from 2009 to 2012. She served as an assistant United States Attorney for the Southern District of Florida beginning in 2013.[3] Cannon has been a member of the Federalist Society since 2005.[1]
Federal judicial service
On April 29, 2020, Trump announced his intent to nominate Cannon to serve as a United States district judge of the United States District Court for the Southern District of Florida.[3] She was nominated to the seat vacated by judge Kenneth Marra, who assumed senior status on August 1, 2017. On May 21, 2020, her nomination was sent to the United States Senate.[4] The Senate Judiciary Committee held a hearing on her nomination on July 29, 2020.[5] On September 17, 2020, her nomination was reported out of committee by a 16–6 vote.[6] The Senate voted 56–21 to confirm her nomination on November 12, 2020.[7] She received her judicial commission on November 13, 2020.
Notable cases
Cannon heard the case of Trump v. U.S.,[8] where former U.S. president Trump asked the court to appoint a special master to review the materials seized from Mar-a-Lago in August 2022.[9][10][11] On August 27, Cannon signaled she was inclined to grant Trump's request to appoint a special master.[12] On August 29, the U.S. Justice Department told Cannon it had completed its review of materials that may fall under attorney–client privilege.[13] She ruled in favor of Trump on September 5, 2022.[14] The decision was widely criticized, including by legal scholars from across the political spectrum,[15] a Bush administration Homeland Security official,[16] and former prosecutors.[17][18]
References
United States Senate Committee on the Judiciary: Questionnaire for Judicial Nominees: Aileen Cannon
Sneed, Tierney; Cohen, Marshall (September 1, 2022). "Here is a breakdown of the key players involved in today's hearing". CNN.
"President Donald J. Trump Announces Judicial Nominees". whitehouse.gov. April 29, 2020. Retrieved April 29, 2020 – via National Archives. Public Domain This article incorporates text from this source, which is in the public domain.
"Ten Nominations Sent to the Senate", The White House, May 21, 2020
Nominations for July 29, 2020
Results of Executive Business Meeting – September 17, 2020, Senate Judiciary Committee
"On the Nomination (Confirmation: Aileen Mercedes Cannon, of Florida, to be U.S. District Judge for the Southern District of Florida)" United States Senate, November 12, 2020
Crolina Bolado, “Fla. Judge Tells Trump To Substantiate Special Master Bid”, Law360, 23 August 2022.
Feuer, Alan; Haberman, Maggie (August 27, 2022). "Judge Signals Intent to Appoint Special Master in Mar-a-Lago Search". The New York Times. ISSN 0362-4331. Retrieved August 29, 2022.
Cheney, Kyle; Gerstein, Josh (August 23, 2022). "Judge seeks clarity about Trump's move on records seized from Mar-a-Lago". POLITICO. Retrieved August 29, 2022.
Mangan, Dan (August 23, 2022). "Judge orders Trump to give details about Mar-a-Lago search warrant lawsuit". CNBC. Retrieved August 29, 2022.
Cheney, Kyle; Gerstein, Josh (August 27, 2022). "Judge signals she's likely to back Trump request for Mar-a-Lago special master". POLITICO. Retrieved August 29, 2022.
Mallin, Alexander (August 29, 2022). "DOJ tells judge it has completed review of possible attorney-client privileged materials seized from Mar-a-Lago". ABC News. Retrieved August 29, 2022.
Mangan, Dan (September 5, 2022). "Judge authorizes special master to review Trump Mar-a-Lago raid documents, temporarily blocks DOJ using records for probe". CNBC. Retrieved September 5, 2022.
Benen, Steve (September 6, 2022). "Legal experts slam special master ruling as 'nutty' and 'radical'". MSNBC.com. Retrieved September 6, 2022.
Savage, Charlie (September 5, 2022). "'Deeply Problematic': Experts Question Judge's Intervention in Trump Inquiry". The New York Times. ISSN 0362-4331. Retrieved September 6, 2022.
Rodgers, Jennifer (September 6, 2022). "Opinion: Judge's ruling for Trump is astonishing". CNN. Retrieved September 6, 2022.
Weissman, Andrew (September 6, 2022). "A Ruling Untethered to the Law". The Atlantic. Retrieved September 6, 2022.
External links
Aileen Cannon at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.
*************************************
Full disclosure: buying Venezuela's press with U.S. tax dollars
Author: Jeremy Bigwood
Date: September-October 2010
From: NACLA Report on the Americas (Vol. 43, Issue 5)
Publisher: Taylor & Francis Ltd.
Document Type: Essay
THE U.S. STATE DEPARTMENT IS SECRETLY funneling millions of dollars to Latin American journalists, according to documents obtained in June under the Freedom of Information Act (FOIA). (1) The 20 documents released to this author--including grant proposals, awards, and quarterly reports--show that between 2007 and 2009, the State Department's little-known Bureau of Democracy, Human Rights and Labor (state.gov/g/drl) channeled at least $4 million to journalists in Bolivia, Guatemala, Haiti, Nicaragua, and Venezuela, through the Pan American Development Foundation (PADF, padf.org), a Washington-based grant maker. (2) The documents shed light on one small portion of the overall U.S. effort to covertly fund journalists all over the world.
The records released thus far pertain only to one particular program, called "Fostering Media Freedom in Venezuela," for which the State Department gave PADF $700,000 for the period 2007-09. The program provides journalism grants to unnamed individuals and sponsors journalism education programs at four regional universities. (3) In carrying out this project, PADF collaborated with Venezuelan media NGOs associated with the country's political opposition, only two of whose names were not redacted from the declassified documents. It is unclear whether the program has continued. If it has, and the State Department gave PADF the previously awarded amount, the U.S. government will have spent almost $1.5 million on journalism development in Venezuela since 2007.
Both the State Department and PADF declined to comment for this article.
"Fostering Media Freedom in Venezuela" is just one small component of the U.S. government's covert funding of foreign news outlets and journalists. Not only the State Department but also the Department of Defense, the U.S. Agency for International Development (USAID), the National Endowment for Democracy (NED), the Broadcasting Board of Governors (BBG), and the U.S. Institute for Peace (USIP) all support "media development" programs in more than 70 countries. The U.S. government spent $82 million in 2006 alone on global media initiatives (not counting money from the Pentagon, the CIA, or U.S. embassies), according to a 2008 NED report. (4)
These government entities fund hundreds of foreign nongovernmental organizations (NGOs), journalists, policy makers, journalist associations, media outlets, training institutes, and academic journalism faculties. Grant sizes range from a few thousand dollars to millions. For some groups and individuals, the funding can come from more than one U.S. government source and can be disbursed either directly from a U.S. embassy or through intermediaries, which are usually U.S. subcontractors or "independent international nonprofit organizations," like PADF.
By serving as an intermediary, PADF has until now hidden the State Department's role in developing Venezuelan media--one of the political opposition's most powerful weapons against President Hugo Chavez and his Bolivarian movement. Neither the State Department, PADF, nor the Venezuelans whom they fund have disclosed the program's existence. Yet, as one document notes, the State Departments own policies require "all publications" that it funds to "acknowledge the support." (5) The provision was simply waived for PADF. "For the purposes of this award," the document reads, "... the recipient is not required to publicly acknowledge the support of the U.S. Department of State." The document does not explain how the program's purposes--which, among other things, include establishing professional norms in journalism--do not require PADF or its "sub-grantees" to acknowledge that they are funded by the. U.S. government.
Although $700,000 may not seem like a lot of money, the funds have been strategically designed to underwrite the best of Venezuela's news media and recruit young journalists. The documents detail a series of grants doled out to unnamed individual journalists, including two kinds of grants "for innovative reporting and investigative reporting," with the winning content disseminated online "and to selected independent media audiences." (6) We don't know who won these grants, but we do know that they were substantial. One of them consisted of 10 one-year grants of $25,000 each. For many journalists, especially in Latin America, $25,000 a year is a high salary. The PADF also holds "2 competitions, one per year, for a total of $20,000 in funding awarded to at least 6 entries." (7)
PADF's Venezuela program also supports journalism education, which is undertaken to produce investigative work "via innovative media technologies." (8) This grant supports "a series of trainings for local journalists focused on the basic and advanced skills of Internet-based reporting and investigative reporting," aiming to engage "a wide range of Venezuelan media organizations and news outlets, including 4 university partners." (9) A quarterly report from January-March 2009 mentions courses at Andres Bello Catholic University, the Metropolitan University, the Central University of Venezuela, and Santa Maria University (10) PADF proposes targeting universities in the capital city of Caracas as well as regional campuses in "the Andes, Center East, Zulia and the Western region of the country."
These initiatives have been undertaken with the collaboration of well-connected opposition NGOs that focus on media. Only one of the documents names any of these organizations--which was probably an oversight on the State Department's part, since the recipients' names and a lot of other information are excised in the rest of the documents. A 2007 document names Espacio Publico (espaciopublico.org) and Instituto Prensa y Sociedad (ipys.org.ve) as recipients of "subgrants." Neither of these organizations have disclosed their participation in the PADF Venezuela program. On its website, Espacio Publico describes itself as a "non-profit, non-governmental civil association that is independent and autonomous of political parties, religious institutions, international organizations or any government" (emphasis added). The other "subgrantee," the Venezuelan chapter of Instituto Prensa y Sociedad (IPyS-Ve), is a Peru-based journalism organization funded by USAID and the NED. (11) Both groups strongly criticize the Chavez government for its alleged assault on free expression and other human rights in Venezuela.
The disclosure in July of these organizations' collaboration with PADF led to calls in Venezuela for a public investigation, forcing Espacio Publico and IPyS to issue statements on the matter. (12) "In Venezuela, it is in no way a crime" for NGOs to accept international financing, IPyS declared. The organization denounced the revelations as the latest example in a series of "threats, slanders, and defamatory campaigns ... put forward by [pro-Chavez] political agents with absolute impunity." This was little more than an attempt, IPyS emphasized, to paint the organization and its allies as foreign agents of the U.S. government. Espacio Publico issued a similar statement from the National College of Journalists and the National Press Workers' Union.
Neither statement addressed the real issue: the NGOs' failure to disclose the U.S. government's funding of their activities. Moreover, the documents released thus far do not indicate that the Venezuelan journalists and students who participated in this program were acting as direct "agents" of the U.S. government. Indeed, those who benefitted from the PADF grants and education programs may not have known that the State Department was funding them. And so far as we know, the State Department was not dictating editorial policy in Venezuela or providing its sponsored journalists with talking points. However, the NGOs that worked with PADF targeted their grants and training programs at journalists who were disposed to pursue reporting that bolstered the U.S. posture toward Venezuela--while never disclosing the source of their funding.
TRADITIONALLY, THE LEADING "democracy promoter" in Venezuela is USAID, followed by the National Endowment for Democracy (NED), with about a third as much funding. In 2005 a FOIA request yielded documents showing that the two entities were underhandedly directing millions of dollars to Venezuelan opposition NGOs. (13) At the time, USAID's main intermediary was Development Alternatives Inc. (DAI), a Maryland-based contractor, along with smaller entities associated with the U.S. government, including the National Democratic Institute, the International Republican Institute, and Freedom House. After these findings were published, DAI was forced to close its office in Caracas. With the USAID and NED covers blown wide open, the U.S. government apparently sought new funding channels, at least one of which PADF has provided.
PADF's main office is housed within the Organization of American States (OAS), granting its officers privileged access to the big players in hemispheric affairs. Funded by various U.S. government agencies and a few private sources--including Stanford Financial Group (recently under investigation for bad banking practices and its CIA connections) and ex-Cuban rum maker Bacardi--PADF has worked in Latin America and the Caribbean since 1962, generally focusing on economic development and disaster relief. (14) Its mission statement, however, does leave open the possibility of getting into the "democracy promotion" racket: The online mission statement says the organization "empowers disadvantaged people and communities" not only "to achieve sustainable economic and social progress" but also "to strengthen their ... civil society" (emphasis added). "Strengthening civil society," like "promoting democracy," is NGO-speak for meddling in another country's politics, even promoting so-called regime change. As one of the documents notes, for example, PADF has worked in Cuba "with USAID and private funding to nurture the emergence of independent civil society and entrepreneurship and accelerate a democratic transition" (emphasis added). (15)
PADF emphasized its solid connections and years of experience in its bid to work as the State Department's intermediary. In one grant proposal, the organization described itself as "affiliated with the OAS" and said it "operates independently of bureaucratic obstacles that could otherwise slow implementation and sub-grant approvals." (16) PADF added that it already had "over two years of experience working in Venezuela to strengthen local civil society groups working in close coordination with the local OAS office with an ongoing USAID/[Office of Transition Initiatives] grant." It is "one of the few major international groups that has been able to provide significant cash grants and technical assistance to Venezuela NGOs," the proposal said, adding: "To date we have provided over 10 grants to strengthen the institutional capacity of local groups that provides us with unique capability and experience to carry out the proposed ... project."
PADF furthermore advertised that it has access to many sources of cash flow: "In addition we can facilitate private sector cash and in-kind donations from both US and in-country donors to complement project resources, if and when needed. PADF's partnerships with regional business and civil society associations and other regional groupings further enhance our capabilities. They provide for rapid access to international agencies, hemispheric leaders and networks of corporate donors and NGO partners." (17) PADF even offered a novel way of evading the official Venezuelan exchange rate. "By using PADF's new 'bond swap' system to transfer funds to Venezuela," PADF noted, "we calculate that the additional local currency generated will be sufficient to meet all in-country expenses within the new US$ budget limit." (18) In short, PADF offered its services as a dynamic money-laundering machine.
THE REVELATIONS THAT THE United States is funding journalism in Venezuela and elsewhere in the hemisphere come on the heels of a report released in May by the center-right think tank FRIDE (fride.org), based in Madrid, which found that since 2002, the United States has funneled an estimated $3 million to $6 million every year to "small projects with political parties and NGOs" in Venezuela through an alphabet soup of shifting, intertwined channels. (19) (The FRIDE report was removed from the group's website soon after it was publicized in June.) Thus, the government support for media fits together with a larger, long-term U.S. effort to strengthen its favored political movement in Venezuela and elsewhere throughout the hemisphere in the era of Latin America's "left turn."
Today's U.S. media sponsorship has deep roots in the history of North American interventionism. Clandestine U.S. funding of media in various countries was first exposed in the 1970s during two congressional investigations convened after the Watergate scandal. Media had by then played a critical role in several U.S. interventions in Latin America, especially after the 1954 invasion of Guatemala and overthrow of President Jacobo Arbenz. During that formative operation, a radio station called La Voz de la Liberacion broadcast messages denouncing Arbenz and cheerleading the invasion. It claimed to be Guatemalan but was in fact run by the CIA, airing from Honduras. (20)
The "successful" Guatemala operation quickly became a model emulated in subsequent interventions. As one CIA analyst put it in the 1980s: "The language, the arguments, and the techniques of the Arbenz episode were used in Cuba in the early 1960s, in Brazil in 1964, in the Dominican Republic in 1965, and in Chile in 1973." (21) Over time, however, U.S. propaganda became more sophisticated and more clandestine. Rather than produce and disseminate its own propaganda, the CIA funded private media companies and journalists, often providing them material to publish or broadcast. During the run-up to the 1973 coup that overthrew Chilean president Salvador Allende, for example, the CIA had established editorial control of El Mercurio, the country's most prestigious newspaper, which ran constant articles and editorials against the Allende government and in favor of neoliberal economic policies.
As the research of Peter Kornbluh shows, the CIA in less than a year spent $1.95 million on El Mercurio, which was also funded by the ITT Corporation, the CIA's main private collaborator in Chile. "Sustained by the covert funding," Kornbluh notes, "the Edwards media empire [which owned the paper] became one of the most prominent actors in the downfall of Chilean democracy. Far from being a news outlet, El Mercurio positioned itself as a bullhorn of organized agitation against the government." The newspaper was essential, even decisive, in setting the stage for the coup, as the CIA itself recognized. (22) When asked in 2008 if the CIA still funds foreign journalists, agency spokesman Paul Gimigliano said, "The CIA does not, as a matter of course, publicly deny or confirm these kinds of allegations." (23)
After the congressional investigations in the 1970s, the burden of funding overseas media shifted to entities like USAID and NED, the latter described by The New York Times as "a quasi-governmental foundation created by the Reagan Administration in 1983 to channel millions of Federal dollars into anti-Communist private diplomacy." (24) One of the NED's first major projects was supporting La Prensa, a major pro-U.S. newspaper in Nicaragua previously funded by the CIA. The NED began funding the paper in 1984 with a grant of two years for $150,000 through a Washington cutout called PRODEMCA. (25)
By early 1987, NED delegations were openly visiting La Prensa. During the 1990 presidential campaign, NED provided the newspaper with at least $ 1 million, with much of the funding being funneled through Venezuelan and Costa Rican pass-throughs. (26) Thanks in part to this and other U.S. democracy promotion initiatives, the pro-U.S. candidate Violeta Chamorro--whose family owned La Prensa--was elected president in 1990.
The U.S. governments use of news media to achieve political outcomes is not limited to efforts abroad. In January 2005 a series of reports revealed that various government agencies had doled out money to at least three U.S. columnists who supported the Bush administration's social policies, including the No Child Left Behind law and the Healthy Marriage Initiative. (27) And in 2008, The New York Times revealed that the Pentagon had hired more than 75 retired military officers to appear on network and cable news shows to promote the Iraq war. (28)
"Records and interviews," the Times wrote, "show how the Bush administration has used its control over access and information in an effort to transform the analysts into a kind of media Trojan horse--an instrument intended to shape terrorism coverage from inside the major TV and radio networks." To date, none of the networks that featured these undisclosed Bush administration publicists--ABC, CBS, NBC, MSNBC, CNN, and Fox--have mentioned the Times story, which won a Pulitzer Prize. (29)
Although these commentators failed to disclose their arrangements with the U.S. government, they at least presented themselves as editorialists. Yet perhaps the worst recent example of the U.S. governments meddling in news media anywhere involved Florida-based "reporters" who covered Cuba, U.S.-Cuban relations, and the Cuban American community. The story was first publicized in September 2006, when The Miami Herald reported that at least 10 South Florida journalists, including three staffers at the Heralds Spanish-language sister paper, El Nuevo Herald, had been moonlighting for Radio and TV Marti, the Miami-based government broadcaster that targets Cuba with U.S. propaganda. (30) New documents released in response to a FOIA request and made public in June show that a handful of these journalists were working for the government while producing unerringly hostile coverage of five Cubans convicted of espionage in 2001. (31) The lawyers for the Cuban Five, as they are known, tried unsuccessfully to have the trial moved out of Miami, where the unsequestered jury was likely to be exposed to the prejudicial coverage. (32)
AT A TIME WHEN U.S. JOURNALISM is widely acknowledged to be in decline--with thousands of people laid off from the industry since 2008--it is ironic that the government has seen fit to pump millions of tax dollars into developing the profession elsewhere, even as calls for a government "bailout" of domestic journalism are ignored or ridiculed as socialistic. (33) Another irony is that undisclosed, foreign state support for ostensibly independent reporting violates basic principles of journalism's professional integrity; yet much of the U.S. funding has been undertaken in the name of fostering professionalism and inculcating journalistic standards.
Reporters in Venezuela and elsewhere in the region can and should hold their governments to account. But they should be wary of grants and seminars administered through U.S.-connected NGOs, since covert funding may in some cases cause unwitting recipients to break their countries' laws. In the end, U.S. officials will have to ask themselves if all this covert funding is really going to successfully help the opposition and "promote democracy"--or whether it will simply backfire and reveal how in practice, Obama's stated vision of hemispheric relations as guided by "mutual respect and common interests and shared values" is little more than lip service. (34)
(1.) All the documents cited in this article are available for download at http://www.archive-research.com/DRL-PADF.
(2.) The $4 million figure appears in Pan American Development Fund (PADF), "Application for Assistance Award. Fostering Media Freedom in Venezuela. In Response to US Department of State-Bureau of Democracy, Human Rights and Labor (DRL) Solicitation DRL-07GR-011-GL0OWHA-103007," November 27, 2010. The five countries are mentioned in Jeffrey T. Berger, "Congressional Notification Transmittal Sheet," Department of State, May 19,2008.
(3.) Department of State, "Bureau/Program Specific Requirements," undated.
(4.) The $82 million figure is given in Center for International Media Assistance, National Endowment for Democracy (NED), "Empowering Independent Media: U.S. Efforts to Foster Free and Independent News Around the World. Inaugural Report: 2008," 22.
(5.) Department of State, "Bureau/Program Specific Requirements."
(6.) Ibid.
(7.) Teresa Fralish to Latoya Larker, "Action Memorandum," Department of State, undated.
(8.) Ibid.
(9.) PADF, "Application for an Assistance Award."
(10.) PADF, "Fostering Media Freedom in Venezuela. Grant no. S-LMAQM-08-GR-586. Quarterly Report to the U.S. Department of State," January-March 2009.
(11.) For a recent NED grant to IPyS-Ven, see "Attachment A. Program Description. Supporting Press Freedom--Venezuela," NED Grant no. 2005-373.0, pp. 4-6. For a recent example of USAID-IPyS collaboration, see "USAID: Peru Sponsors Awards and Latin American Seminar for Investigative Journalism on Narcotrafficking in Lima 2007," undated press release, U.S. Embassy in Peru.
(12.) Agence France-Presse, "Pide Chavez investigar recursos de ONG's en Venezuela," July 15, 2010.
(13.) For the documents released in 2005, see venezuelafoia.com.
(14.) Patrick Sawer, "Sir Allen Stanford in Spotlight Over CIA Spying Row With Venezuela," Telegraph.co.uk (London), November 9, 2008.
(15.) PADF, "Application for an Assistance Award."
(16.) Ibid.
(17.) Ibid.
(18.) PADF executive director John Sanbrailo to DRL foreign affairs officer Catherine Newling and program officer Teresa Fralish, memorandum, "Ref: PADF Proposal 'Fostering Media Freedom in Venezuela,' " March 25, 2008.
(19.) Susanne Gratius, "Assessing Democracy Assistance: Venezuela" (Madrid: Fundacion para las Relaciones Internacionales y el Dialogo Exterior [FRIDE], May 2010), 4.
(20.) John Elliston, Psywar on Cuba: The Declassified History of Anti-Castro Propaganda (Ocean Press, 1999), 20.
(21.) Quoted in Nick Cullather, Secret History: The CIA's Classified Account of Its Operations in Guatemala, 1952-1954, 2nd ed. (Stanford University Press, 2006), 110.
(22.) Peter Kornbluh The Pinochet File: A Declassified Dossier on Atrocity and Accountability (The New Press, 2003), 92-93.
(23.) Quoted in Jeremy Bigwood, "No Strings Attached?," In These Times, June 4, 2008.
(24.) Ben A. Franklin, "Democracy Project Facing New Criticisms," The New York Times, December 4, 1985.
(25.) NED, "Programs of the Endowment and Its Institutions in Nicaragua," 1988, cited in William I. Robinson, A Faustian Bargain: U.S. Intervention in the Nicaraguan Elections and American Foreign Policy in the Cold War Era (West-view Press, 1992), 203 n. 14.
(26.) Cristiana Chamorro to Carl Gershman and Barbara Haig, fax, February 10, 1989, reproduced in Ibid., 246-47.
(27.) Greg Toppo, "Education Dept. Paid Commentator to Promote Law," USA Today, January 7, 2005; Howard Kurtz, "Writer Backing Bush Plan Had Gotten Federal Contract," The Washington Post, January 26, 2005; Tom Hamburger, "Federal Contracts With Columnists Prompt Change in Policy," Los Angeles Times, January 28, 2005.
(28.) David Barstow, "Behind TV Analysts, Pentagon's Hidden Hand," The New York Times, April 20, 2008.
(29.) Glenn Greenwald, "The Pulitzer-Winning Investigation That Dare Not Be Uttered on TV," Salon.com, April 21, 2009.
(30.) Oscar Corral, "10 Miami Journalists Take U.S. Pay," The Miami Herald, September 8, 2006. According to the Government Accountability Office, Radio and TV Marti's coverage often presents "individual views as news" and includes "editorializing," "unsubstantiated reports," and "offensive and incendiary language." See General Accountability Office, "Broadcasting to Cuba: Actions Are Needed to Improve Strategy and Operations. Report to the Chairman, Subcommittee on International Organizations, Human Rights, and Oversight, Committee on Foreign Affairs, House of Representatives" (January 2009), 27-28.
(31.) The FOIA documents on the U.S. funding are available at freethefive.org/legalFront/FOIA/index.htm.
(32.) Jesse Freeston, "Media Took Gov't Cash During Trial of 'Cuban 5,'" The Real News Network, June 14, 2010.
(33.) For an argument in favor of government intervention to support journalism, see John Nichols and Robert W. McChesney, "How to Save Journalism," The Nation, January 7, 2010.
(34.) "To Learn From History, Not Be Trapped by It," Obama speech transcript, April 18, 2009, Port of Spain, Trinidad and Tobago.
Jeremy Bigwood is an investigative reporter whose work has appeared in American Journalism Review, The Village Voice, and several other publications. He covered Latin American conflicts from 1984 to 1994 as a photojournalist. A short version of this article originally appeared July 15 on nacla.org.
Copyright: COPYRIGHT 2010 Taylor & Francis Ltd.
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Bigwood, Jeremy. "Full disclosure: buying Venezuela's press with U.S. tax dollars." NACLA Report on the Americas, vol. 43, no. 5, Sept.-Oct. 2010, pp. 6+. Gale Academic OneFile, link.gale.com/apps/doc/A239911968/AONE?u=nm_p_oweb&sid=googleScholar&xid=3c14aa18. Accessed 6 Sept. 2022.
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Part 1 of 2
Radio and Television Broadcasting to Cuba: Background and Issues Through 1994
by Congressional Research Service
August 30, 1994
https://crsreports.congress.gov
94-636
Summary
Radio Marti first began broadcasting to Cuba in 1985 while TV Marti began broadcasting in 1990. Both programs are within the Office of Cuba Broadcasting, United States Information Agency (USIA). Almost since the beginning, U.S. government broadcasting to Cuba has been controversial. Supporters say a source of news independent of the Cuban government is important, especially in the post-Cold War climate. They say there is less print and broadcast media available now to Cubans than ever before. Critics of U.S. government broadcasting in Cuba say it has too much Cuban-American focus, and not enough diverse opinions. They claim that TV Marti broadcasts entertainment rather than news and editorials, and has low viewership because of jamming by the Cuban government and early morning time slots–3:30 am to 6:00 am. In addition, some lawmakers have expressed concern that the nine-person Advisory Board for Cuba Broadcasting, which is appointed by the President, with confirmation by the Senate, is not rotated as was stipulated by the legislation that created it. Thus, in recent years, the value of maintaining Cuba broadcasting as it currently exists has come into question.
In the Commerce, Justice, State Appropriations Act for FY1994 (P.L. 103-121), Congress provided funding for Radio and TV Marti, but withheld a portion for each until the USIA Director reported to Congress (not later than July 1, 1994) on the two programs. In issuing the report, the USIA Director was to take into account the findings and recommendations of the newly established Advisory Panel, which was created to study the “purpose, policies, and practices of radio and television broadcasting to Cuba.”
The Advisory Panel first met in December 1993 and submitted its two-volume report in March 1994. On July 8, 1994, USIA Director Joseph Duffey submitted to Congress his response to the Panel report. The Director made a determination that the best interests of the United States are being served by maintaining TV broadcasting to Cuba, that maintaining television broadcasting to Cuba is technically sound and effective, and that TV Marti broadcasting is consistently being received by a sufficient Cuban audience to warrant its continuation.
About the same time that the reports were submitted, the FY1995 budget funding process for Cuba Broadcasting was underway. The Administration requested $27.6 million for FY1995 appropriations for Cuba Broadcasting, an increase of 31.4 percent over the enacted FY1994 level. The House-passed bill recommended $8.6 million for Cuba Broadcasting, with no funding for TV Marti, while the Senate bill recommended $24.8 million for both Radio and TV Marti. In the end, the Senate version of the bill predominated when the issue was resolved in conference, and $24.8 million was appropriated for Cuba broadcasting. Debate on whether or how much to fund Cuban broadcasting is likely to continue into the future as long as the U.S. budget is constrained and the size of the Cuban viewing audience is in question.
Contents
• Introduction
• Establishment of Radio and TV Marti
• Cuba Broadcasting as Part of U.S. Government Broadcasting
• Congressional Concerns
o Politicization
o Broadcast Standards
o TV Marti’s Broadcasting Audience
• Congressional Funding
o FY1994 Funding and Conditions
o FY1995 Funding
• Advisory Panel Report and The USIA Director’s Response
o Advisory Board
o Broadcast Standards
o Professional Standards for the Office of Cuba Broadcasting
o Future of TV Marti
• Figures
• Figure 1. Components of U.S. Government
• Figure 2. Funds Available for U.S. Government International Radio and Television Broadcasting in 1993
• Tables
• Table 1. Advisory Board for Cuba Broadcasting: Current Membership, Term of Office, and Party Affiliation
• Table 2. History of Appropriations for Cuba Broadcasting
• Table 3. Annual Obligations for Radio and TV Marti*
• Appendixes
• Appendix. Advisory Panel
• Contacts
• Author Information
Introduction
Since their inception, Radio and TV Marti have attracted much controversy. In 1991, one of the findings of the U.S. Advisory Commission on Public Diplomacy was that TV Marti was not cost-effective when compared with other public diplomacy programs. In 1992, GAO questioned whether TV Marti met Voice of America broadcast standards, as required by law.1 In 1992 and 1993, news articles criticized the effectiveness of TV Marti in reaching the Cuban audience.2 In 1993, some Members of Congress debated the value of continuing funding it. Subsequently, the Commerce, Justice, State and Related Agencies Appropriation Act for FY1994 (P.L. 103-121) established an Advisory Panel on Radio and TV Marti to determine whether the broadcasting of these entities: (1) consistently meets standards for quality and objectivity established by law or by USIA, (2) is cost effective, (3) is being received by the Cuban people on a daily basis, (4) and if TV Marti is technically sound and effective and is consistently being received by a sufficient Cuban audience to warrant its continuation. Furthermore, the Act stipulated that appropriations would be withheld until 30 days after the Director makes reports after consulting with the Advisory Panel on measures that the USIA is taking with respect to recommendations of the Panel.
On December 21, 1993, the Director of the USIA, Joseph Duffey, announced the formation of the three-member Panel. The Panel met for the first time on December 28, 1993 and terminated in March 1994, as soon as the report was submitted to Congress. Generally, the Advisory Panel concluded that both Radio and TV Marti should be continued and streamlined. As required by the FY1994 appropriations law, USIA Director Joseph Duffey submitted a response to the findings of the Advisory Panel in July 1994, as well as his determination that TV Marti is technically sound and effective, is consistently being received by a sufficient Cuban audience, and is in the best interest of the United States to maintain.
At about the same time, Congress was considering the President’s $27.6 million budget request for Cuba Broadcasting for FY1995. The House approved $8.625 million, about $19 million below the request and $12.4 million less than current funding of $21 million; the House recommended no funding for TV Marti. The Senate, however, set funding closer to the Administration request– at $24.8 million for both Radio and TV Marti. In the end, the Senate version of the bill predominated and $24.8 million was appropriated for Cuba broadcasting (P.L. 103-317).
This report provides a legislative history and funding levels for Cuba Broadcasting. It discusses specific concerns some lawmakers have had with Radio and TV Marti over the years, and presents the Panel’s recommendations and the USIA Director’s response and determinations, as required by the FY1994 appropriations act.
Establishment of Radio and TV Marti
Since the early 1960s, U.S. policy toward Cuba has consisted largely of isolating the island nation through a comprehensive trade embargo.3 When Fidel Castro came to power in 1959 and began to build a Communist dictatorship, U.S.–Cuban relations deteriorated sharply. The Kennedy Administration broke U.S. diplomatic relations with Cuba in 1961 after Cuba demanded that U.S. Embassy staff be reduced to a skeleton crew. The United States subsequently sponsored the ill-fated Bay of Pigs invasion by anti-Castro Cubans in 1961, and in 1962 imposed a comprehensive trade embargo on Cuba because of Castro’s expropriation, without compensation, of U.S. properties in Cuba. Tensions peaked in October 1962 during the Cuban missile crisis when the Soviet Union attempted to install offensive missile sites in Cuba.
In the early to mid-1970s, there was some movement toward normalization of relations, but in the late 1970s, Cuba’s military involvement in Africa and its support for revolutionary groups in the Caribbean Basin region halted any movement toward improved relations. In the 1980s, U.S.-Cuban relations remained tense because of Cuba’s support for revolutionary movements abroad.
It was in this environment that in late September 1983, Congress approved specialized U.S. Voice of America (VOA) programming for Cuba with passage of the Radio Broadcasting to Cuba Act (P.L. 98-111).4 According to the legislation, while the VOA was already broadcasting to Cuba, “there is a need for broadcasts to Cuba which provide news, commentary and other information about the events in Cuba and elsewhere to promote the cause of freedom in Cuba.” As a result of the legislation, Radio Marti – named for 19th century Cuban nationalist hero Jose Marti – began broadcasting to Cuba on May 20, 1985.
In 1987, just two years after Radio Marti’s first broadcast, Congress approved funding for a study on the feasibility of establishing a U.S. government television service to Cuba in order to increase the free flow of information into that country. Congress then authorized and provided money for startup operations and testing of television broadcasting to Cuba in 1988 in the FY1989 State Department appropriations measure (P.L. 100-459, H.R. 4782). In 1990, Congress authorized the establishment of TV Marti when it approved the Television Broadcasting to Cuba Act as part of the State Department authorization measure for FY1990 and FY1991 (P.L. 101-246, H.R. 3793). Television broadcasting to Cuba began in March 1990 on an experimental basis and then began regular operations in August 1990. The broadcasts originate in Washington and are transmitted to Cudjoe Key, Florida, by satellite. The broadcasts are then beamed to Cuba after being uplinked to a transmitter in an aerostat.
In order for the FY1990-FY1991 funding of TV Marti to go forward, the legislation called for the President to determine that the testing of TV Marti demonstrated television broadcasting to Cuba was feasible and would not cause objectionable interference with the broadcasts of Cuban licenses. President Bush made the required determination in August 1990 (Presidential Determination No. 90-35) which allowed TV Marti to continue beyond its testing phase.
Under the legislation authorizing Radio Marti, a nine-member Advisory Board for Cuba Broadcasting (originally called the Board for Radio Broadcasting) was created. It has the task of reviewing the effectiveness of Radio and TV Marti and making any recommendations it may consider necessary. The Board’s members are appointed by the President, by and with the advice and consent of the Senate, with not more than five members of the same political party and with the President designating one member of the Board to serve as chairperson. The Act stipulated that the initial Board members were to stagger rotation off the Board in one, two or three years, as designated. Thereafter, Board member terms would be three years. The legislation also states that any board member whose term has expired may serve until the President appoints a successor.
Cuba Broadcasting as Part of U.S. Government Broadcasting
Currently, the United States government supports general broadcasting, such as Voice of America (VOA), and surrogate broadcasting, such as Cuba Broadcasting (Radio and TV Marti) and Radio Free Europe/Radio Liberty (RFE/RL).5 RFE/RL is independent of a U.S. government agency,6 while Cuba Broadcasting has always been within USIA’s Bureau of Broadcasting. Figure 1 shows how Radio and TV Marti, under the Office of Cuba Broadcasting, organizationally fit into the larger picture of U.S. government international broadcasting. (For more information on U.S. government international broadcasting, see CRS Report 94-29, International Broadcasting: Consolidation of U.S. Radio Services.)
Figure 1. Components of U.S. Government, International Broadcasting
Congressional Concerns
Over the years, members of Congress have debated the merits of the United States broadcasting to Cuba. Congressional concerns about Radio and TV Marti have included the following: politicization of the Advisory Board for Cuba Broadcasting; meeting VOA broadcast standards; and audience size and accessibility of TV Marti broadcasts to Cubans.
Politicization
Concerns about politicization at Radio and TV Marti have centered around the role of the Advisory Board for Cuba Broadcasting and its controversial chairman, Jorge Mas Canosa. Many are concerned about the lack of turnover of the Board members and the chairman, as was intended by the originating legislation. As illustrated in Table 1, the terms of all Board members, including the chairman, will have expired by the end of October 1994. Some critics claim that the lack of turnover is due to a lack of willingness on the part of past and current Administrations to change the composition of the Board. They say that the conservative Mas Canosa has attempted to use his influence to gain control of the radio station so that it could be used to propagate the views of the Cuban American National Foundation, a Cuban exile organization founded by Mas Canosa in 1981. Some have argued further that Mas Canosa is using his position to promote himself as the next Cuban leader after Castro.
Former Radio Marti Director Ernesto Betancourt maintains that he was ousted from his position in 1990 because of his alleged opposition to TV Marti and because Mas Canosa claimed to have lost control of Radio Marti.7 In a 1994 statement, Betancourt stated that his ouster “opened the floodgates for the politicization of the station, dragging it into exile politics and seriously weakening its editorial integrity.”8
Mas Canosa maintains that he has never tried to use Radio Marti for personal or foundation propaganda.9 At the time, a USIA spokesman stated that Betancourt was being reassigned to fill a critical need for the position of director of a USIA research office, a position which Betancourt declined.10
Betancourt urges abolishing the Advisory Board contending that it has “lost the trust of Congress,” has been “caught in a conflict of interest and has become part of the problem and not of the solution.” Betancourt asserts that “these stations should not be platforms for a political afterlife in post-Castro Cuba.” If the Advisory Board were not abolished, he recommends that it should at least be renewed with a broader representation, “including members of, but not dominated by, the Cuban-American community,” with “no figure politically active among exile groups.”11
Another concern expressed by some observers is for the Board’s membership to be more balanced, with a broad gamut of Cuban American viewpoints represented. The current membership of the Advisory Board consists of five Republicans, three Democrats and one Independent. It has been chaired by Mas Canosa since its establishment. Many seem to concur that more diverse views are needed. Some believe that Mas Canosa should rotate off the Board entirely; some believe he should resign the chairmanship of the Advisory Board, but still remain as a Board member because of his experience.12
Broadcast Standards
Closely related to the question of politicization of Cuba Broadcasting is the issue of broadcasting standards of Radio and TV Marti. Some of the concerns that have been raised by observers and by some Members of Congress include: broadcasting too much Cuban-American news, too much entertainment and not enough news, a lack of editorials offering a wide variety of views, and a lack of on-air corrections of broadcasting errors.
In May 1992, the U.S. General Accounting Office (GAO) issued a report on TV Marti’s compliance with broadcast standards.13 As part of the study, the GAO employed three consultants to watch broadcasts and assess program quality and compliance with Voice of America standards that broadcasts be objective, accurate, balanced, and present a variety of views. According to the report, two of the three consultants “believed that the broadcasts related to Cuba and the Cuban-American community lacked balance and did not meet established Voice of America standards.
The other consultant believed that the broadcasts generally met the standards but that improvements were needed.” In addition, the report noted that “TV Marti’s in-house critics also observed that some broadcasts might not meet standards.” GAO recommended that the USIA Director instruct VOA to institute procedures to ensure that TV Marti’s broadcasts meet established VOA standards. With regard to Radio Marti, in October 1992, GAO staff met with officials of USIA’s Bureau of Broadcasting about allegations that Radio Marti broadcasts did not meet VOA standards and suggested that the Bureau consider establishing an external review committee. In order to implement the GAO recommendations, the Office of Cuba Broadcasting established External Review Panels to review Radio and TV Marti’s news and programming. Concern has surfaced, however, regarding the objectivity of the External Review Panels, since they are selected by the Office of Cuba Broadcasting.
A long-time Radio Marti staff member, J. Richard Planas, recently stated “that there is significant politicization of news and information within Radio Marti to the extent that we may need to consider if Radio Marti is doing both the Cuban people and U.S. foreign policy a disservice.” According to Planas, Radio Marti editorial “guidelines are routinely ignored in deliberate attempts to favor a specific political agenda.” The agenda consists of: stressing commentaries that are critical and derisive of the Cuban regime, while downplaying favorable evaluations and statements of support toward Cuba; stressing the “hard line” policy toward Cuba while downplaying criticism of the U.S. embargo or views favoring negotiations with Castro; presenting favorable aspects of Cuban American political leaders who support the “hard line” policy while downplaying or even censoring criticism of these leaders; emphasizing the deficiencies of the Cuban regime while de-emphasizing its accomplishments; and favoring broadcasts of opinions and views about, or calls for, the imminent fall of the Cuban regime. 14
Former Director of the Office of Cuba Broadcasting, Antonio Navarro, maintains that over the past three years “Radio Marti has drastically increased the volume of news and information as well as the diversity of responsible opinions in its programming” and that “no one person, organization or viewpoint dominates or controls any aspect of Radio or TV Marti.”15
In early June, because of the numerous allegations regarding the management of the Office of Cuba Broadcasting, Representative John Conyers, Chairman of the House Government Operations Committee’s Legislation and National Security Subcommittee, wrote to USIA Director Duffey. Representative Conyers expressed concerns about: alleged political bias which is reportedly undermining the accuracy and objectivity of broadcasts to Cuba; alleged retaliation against employees in the Office of Cuba Broadcasting who have criticized this political bias; and alleged cronyism whereby new employees have been hired not for their expertise, but because of their connections to influential individuals.16 Depending on Director Duffey’s response to Representatives Conyers letter (which was requested by June 20, 1994, but reportedly has not yet been received), the Subcommittee may hold hearings to investigate the allegations.17
TV Marti’s Broadcasting Audience
Another fundamental concern for many observers, including Members of Congress, is whether TV Marti is actually being viewed in Cuba. Two reasons for low viewership are (1) the ratification by both the United States and Cuba of the International Telecommunications Convention which requires that TV stations be established so as not to interfere with other nations’ broadcasts. To comply with this treaty, U.S. broadcasts in Cuba must be scheduled from 3:30 a.m. to 6:00 a.m.; and (2) the constant and effective jamming of the broadcasts by the Cuban government.
A 1991 report issued by the President’s Task Force on U.S. government International Broadcasting noted that TV Marti is impeded “because it is forced to broadcast during a time period when there are few viewers.” The Task Force report recommended that “the U.S. government should view this as a matter of high priority and should act with vigor to try to gain better broadcast hours,” but also asserted that “if it is not possible to change and extend the hours of broadcasting to reach a larger audience, the service should be terminated.”18 In March 1994, the Chairman of the Task Force, John Hughes, stated that the Task Force probably had the same views as in the 1991 report, and characterized the 1991 report as concluding “that it was pointless and wasteful to continue TV Marti’s operations, unless the viewing audience in Cuba could be substantially expanded.”19
In large part because of the viewership problems, the U.S. Advisory Commission on Public Diplomacy20 stated in a 1991 report “that TV Marti is not cost-effective at the present time when compared with other public diplomacy programs of proven value.”21 In 1993, the Commission reiterated its statement that TV Marti was not cost effective, and recommended that “it should be shut down and its resources directed to productive public diplomacy activities.” The report noted that despite sizeable funding, “consistent and effective Cuban jamming has resulted in only trace audiences for TV Marti’s programs.”22
Congressional Funding
Every two years, Congress authorizes appropriations for State Department, USIA and broadcasting entities, including the Office of Cuba Broadcasting within the USIA as part of the Foreign Relations Authorizations Act. Annually, Congress passes appropriations for USIA within the Commerce, Justice, State and Related Appropriations Act. Figure 2 illustrates the funding level of Radio and TV Marti compared to funding for other U.S. government-funded international broadcasts.
Because of congressional concerns about Cuba Broadcasting, there have been attempts by some Members to cut back or curtail funding for either one or both broadcasting operations. Nevertheless, until FY1994 both programs have been funded at levels similar to those requested by the Administration. Table 2 shows the historical record of congressional appropriations for Cuba Broadcasting, including the number of positions funded. Table 3 shows the actual Radio and TV Marti expenditures.
Figure 2. Funds Available for U.S. Government International Radio and Television Funds Broadcasting in 1993
(in millions) *
Source: U.S. Advisory Commission on Public Diplomacy 1993 Annual Report, p. 43.
Note: * Funds for U.S. government international broadcasting in FY1993 total $844 million. Amounts reflect FY1993 appropriations plus carryover balances. The ratio of radio to television is $800 million to $44 million – or 18 to 1.
Radio and Television Broadcasting to Cuba: Background and Issues Through 1994
by Congressional Research Service
August 30, 1994
https://crsreports.congress.gov
94-636
Mar-a-Lago Club, Address: 1100 S Ocean Blvd, Palm Beach, FL 33480
***
United States District Court, Southern District of Florida
Judge's Info
District Judges
This list is in Seniority Order
Chief Judge Cecilia M. Altonaga
Judge K. Michael Moore
Judge Donald M. Middlebrooks
Judge William P. Dimitrouleas
Judge Jose E. Martinez
Judge Marcia G. Cooke
Judge Kathleen M. Williams
Judge Robert N. Scola, Jr.
Judge Darrin P. Gayles
Judge Beth Bloom
Judge Robin L. Rosenberg
Judge Roy K. Altman
Judge Rodolfo A. Ruiz II
Judge Rodney Smith
Judge Raag Singhal
Judge Aileen M. Cannon
Senior Judge James Lawrence King
Senior Judge Jose A. Gonzalez, Jr.
Senior Judge William J. Zloch
Senior Judge Federico A. Moreno
Senior Judge Donald L. Graham
Senior Judge Daniel T. K. Hurley
Senior Judge Joan A. Lenard
Senior Judge Patricia A. Seitz
Senior Judge Paul C. Huck
Senior Judge Kenneth A. Marra
Senior Judge James I. Cohn
-- West Palm Beach, United States District Court, Southern District of Florida
Aileen Mercedes Cannon was born in 1981 in Cali, Colombia. Her mother had fled Cuba under Fidel Castro at the age of seven.
Cannon attended the University of Seville in Spain in 2001. She earned a Bachelor of Arts from Duke University in 2003, and a Juris Doctor, magna cum laude, from the University of Michigan Law School in 2007. She was inducted into the Order of the Coif and began her legal career as a law clerk to judge Steven Colloton of the United States Court of Appeals for the Eighth Circuit.
Cannon worked as an associate at Gibson, Dunn & Crutcher from 2009 to 2012. She served as an assistant United States Attorney for the Southern District of Florida beginning in 2013. Cannon has been a member of the Federalist Society since 2005.
On April 29, 2020, Trump announced his intent to nominate Cannon to serve as a United States district judge of the United States District Court for the Southern District of Florida.
-- Aileen [Mercedes] Cannon, by Wikipedia
12. Published Writings and Public Statements:...
Puede que el tomate reduzca tumors (English translation: Tomatoes May Help Reduce Tumors), El Nuevo Herald, Aug. 20, 2002, at C4. Copy supplied.
Un libro fecundo sobre la esterilidad (English translation: A Fertile Book about Infertility), EI Nuevo Herald, Aug. 17, 2002, at Cl. Copy supplied.
'Flamenco', una explosion de energia y pasion (English translation: Flamenco: An Explosion of Energy and Passion), EI Nuevo Herald, Aug. 16, 2002, at C3. Copy supplied.
Un mural en homenaje a la mujer Latina (English translation: A Mural in Homage of the Latin Woman), EI Nuevo Herald, Aug. 6,2002, at C2. Copy supplied.
Un mapa para ayudar a entender y seguir los instintos (English translation: A Map to Help Understand and Follow One's Instincts), EI Nuevo Herald, Aug. 6, 2002, at C3. Copy supplied.The new guide is part of the intelligence agency's Ask Molly series, an online CIA forum that answers questions from the public.
The agency also suggests planning detours on your travel excursions to avoid dangerous parts of the city and poorly lit neighborhoods at night.
And, above all, it suggests trusting your instincts.
-- Security locks, doorstops and bypasses: CIA shares how to travel like a spy, by Michael Wilner, El Nuevo Herald, 5/27/22
Yoga prenatal, una alternative saludable al parto (English translation: Prenatal Yoga: A Healthy Alternative for Delivery), EI Nuevo Herald, July 30, 2002, at C4. Copy supplied.
Marina Albornoz o la pasion por el color (English translation: Marina Albornoz or Passion for Color), EI Nuevo Herald, July 27,2002, at C2. Copy supplied.
Musica y arte este viernes en la Calle Ocho (English translation: Music and Art this Friday on Eighth Street), EI Nuevo Herald, July 26, 2002, at C3. Copy supplied.
La herencia musical de Puerto Rico (English translation: The Musical Heritage of Puerto Rico), EI Nuevo Herald, July 24, 2002, at C2. Copy supplied.
Precauciones a seguir con las comidas al aire libre (English translation: Precautions to Avoid Food-Borne Illness While Eating Outside), El Nuevo Herald, July 23, 2002, at C2. Copy supplied.
Amor por la radio desde muy joven (English translation: Love for the Radio Since a Young Age), EI Nuevo Herald, July 16, 2002, at C4. Copy supplied.
Camilo Mejia logra su sueno de ser astronaut por un fin de semana (English translation: Camilo Mejia Achieves his Dream to Become an Astronaut for a Weekend), EI Nuevo Herald, July 9, 2002, at C3. Copy supplied.
Interaccion para aprender buen espanol (English translation: Interaction to Learn Spanish Well), EI Nuevo Herald, July 2, 2002, at C2. Copy supplied.
De todo un poco este viernes en la Calle Ocho (English translation: A Little Bit of Everything this Friday on Eighth Street), EI Nuevo Herald, June 28, 2002, at C2. Copy supplied.
Summerbridge Miami, un puente hacia el futuro (English translation: Summerbridge Miami: A Bridge to the Future), EI Nuevo Herald, June 25, 2002, at C3. Copy supplied.
'The Atoms Family', una exhibicion sobre la energia (English translation: The Atoms Family: An Exhibition About Energy), EI Nuevo Herald, June 18, 2002, at C4. Copy supplied.
Ganadores en la competencia de 'Library Quest' (English translation: Winners in the Library Quest Competition), EI Nuevo Herald, June 18, 2002, at C3. Copy supplied.
-- UNITED STATES SENATE COMMITTEE ON THE JUDICIARY QUESTIONNAIRE FOR JUDICIAL NOMINEES, PUBLIC [AILEEN MERCEDES CANNON]
Yet perhaps the worst recent example of the U.S. governments meddling in news media anywhere involved Florida-based "reporters" who covered Cuba, U.S.-Cuban relations, and the Cuban American community. The story was first publicized in September 2006, when The Miami Herald reported that at least 10 South Florida journalists, including three staffers at the Herald's Spanish-language sister paper, El Nuevo Herald, had been moonlighting for Radio and TV Marti, the Miami-based government broadcaster that targets Cuba with U.S. propaganda.
-- Full disclosure: buying Venezuela's press with U.S. tax dollars, by Jeremy Bigwood, September-October 2010
Inflammatory broadcasts by RFE [Radio Free Europe] in the 1950s misled a small number of Hungarian people to rebel in 1956, believing the U.S. was ready to intervene on their behalf. The ensuing uproar forced RFE to modify its broadcasting methods, though its recent diatribes against Poland are reminiscent of the Hungarian fare -- but on a more sophisticated plane. Similarly, broadcast propaganda by the CIA's Radio Swan played a part in inducing the Bay of Pigs invaders of Cuba in 1961 to believe, quite incorrectly, that the Cuban population would support them. And, as the U.S. seldom learns from its mistakes, the energy the Reagan Administration has spent attempting to blackmail Congress into establishing Radio Marti against Cuba will surely backfire again.
In addition to its broadcasts, RFE/ RL openly operate the largest "private" research facility in the west which concentrates on information gathering -- or spying -- on Soviet and Eastern European nations, and on communist and socialist affairs.
But perhaps the most chilling "overt" propaganda project of the U.S. government to date is the newly unveiled Democracy Institute.
-- The CIA and the Media, by CovertAction Information Bulletin
In 1933, Joseph Goebbels, following closely the recommendations of Edward Bernays, nephew of Sigmund Freud, created some of the most effective propaganda the world has ever seen. Bernays’ prescription demanded the complete domination of communications media to stamp out any opposing view, the participation of artisans, celebrities, academic authorities and community leaders to influence popular opinion at a group level, and a Freudian appeal to base instincts – the need for food and shelter, community and leadership, and the influence of entertainment and fashion – to promote conformity among the German populace.
By now we are all familiar with the idea of German propaganda. In the West it is known by a more polite euphemism, public relations. PR is a lucrative business, with scores of non-government organisations competing for their share of generous funding. Once the province of legacy media such as Voice Of America, Radio Liberty, Radio Free Iraq, Radio Free Afghanistan, Radio Free Europe, Radio Free Asia, Worldnet Television and Radio/TV Marti, today it comprises think tanks, print media, arts and entertainment, the humanitarian-industrial complex, as well as new technology platforms such as Google, Facebook and Wikipedia, and a plethora of so-called independent media outlets and ‘fact checking’ sites and apps.
The emergence of strategic communications as a soft power option combines psychological operations, propaganda and public affairs under a single umbrella. The U.S. Agency for International Development (USAID), working in cooperation with George Soros’ [False Flag Factories] Open Societies, currently has a budget of US$40m to provide aid to so called ‘independent media organisations’ in 30 countries, including trouble spots such as Syria and Ukraine. The National Endowment for Democracy, set up by former CIA director William Casey under the Reagan Administration to help finance “perception management”, also receives tens of millions in federal funding, as do various “humanitarian NGOs” such as Amnesty International, Médecins Sans Frontières, and AVAAZ, who control Syria’s White Helmets.
-- Accusing your enemy of that which you are guilty – The CIA and the “fake news” conspiracy, by Sean Stinson
In the early 1980s, VOA began a $1.3 billion rebuilding program to improve broadcast with better technical capabilities. Also in the 1980s, VOA also added a television service, as well as special regional programs to Cuba, Radio Martí and TV Martí. Cuba has consistently attempted to jam such broadcasts and has vociferously protested U.S. broadcasts directed at Cuba.
-- Voice of America, by Wikipedia
Summary
Radio Marti first began broadcasting to Cuba in 1985 while TV Marti began broadcasting in 1990. Both programs are within the Office of Cuba Broadcasting, United States Information Agency (USIA). Almost since the beginning, U.S. government broadcasting to Cuba has been controversial. Supporters say a source of news independent of the Cuban government is important, especially in the post-Cold War climate. They say there is less print and broadcast media available now to Cubans than ever before. Critics of U.S. government broadcasting in Cuba say it has too much Cuban-American focus, and not enough diverse opinions. They claim that TV Marti broadcasts entertainment rather than news and editorials, and has low viewership because of jamming by the Cuban government and early morning time slots–3:30 am to 6:00 am. In addition, some lawmakers have expressed concern that the nine-person Advisory Board for Cuba Broadcasting, which is appointed by the President, with confirmation by the Senate, is not rotated as was stipulated by the legislation that created it. Thus, in recent years, the value of maintaining Cuba broadcasting as it currently exists has come into question.
In the Commerce, Justice, State Appropriations Act for FY1994 (P.L. 103-121), Congress provided funding for Radio and TV Marti, but withheld a portion for each until the USIA Director reported to Congress (not later than July 1, 1994) on the two programs. In issuing the report, the USIA Director was to take into account the findings and recommendations of the newly established Advisory Panel, which was created to study the “purpose, policies, and practices of radio and television broadcasting to Cuba.”
The Advisory Panel first met in December 1993 and submitted its two-volume report in March 1994. On July 8, 1994, USIA Director Joseph Duffey submitted to Congress his response to the Panel report. The Director made a determination that the best interests of the United States are being served by maintaining TV broadcasting to Cuba, that maintaining television broadcasting to Cuba is technically sound and effective, and that TV Marti broadcasting is consistently being received by a sufficient Cuban audience to warrant its continuation.
About the same time that the reports were submitted, the FY1995 budget funding process for Cuba Broadcasting was underway. The Administration requested $27.6 million for FY1995 appropriations for Cuba Broadcasting, an increase of 31.4 percent over the enacted FY1994 level. The House-passed bill recommended $8.6 million for Cuba Broadcasting, with no funding for TV Marti, while the Senate bill recommended $24.8 million for both Radio and TV Marti. In the end, the Senate version of the bill predominated when the issue was resolved in conference, and $24.8 million was appropriated for Cuba broadcasting. Debate on whether or how much to fund Cuban broadcasting is likely to continue into the future as long as the U.S. budget is constrained and the size of the Cuban viewing audience is in question.
Contents
• Introduction
• Establishment of Radio and TV Marti
• Cuba Broadcasting as Part of U.S. Government Broadcasting
• Congressional Concerns
o Politicization
o Broadcast Standards
o TV Marti’s Broadcasting Audience
• Congressional Funding
o FY1994 Funding and Conditions
o FY1995 Funding
• Advisory Panel Report and The USIA Director’s Response
o Advisory Board
o Broadcast Standards
o Professional Standards for the Office of Cuba Broadcasting
o Future of TV Marti
• Figures
• Figure 1. Components of U.S. Government
• Figure 2. Funds Available for U.S. Government International Radio and Television Broadcasting in 1993
• Tables
• Table 1. Advisory Board for Cuba Broadcasting: Current Membership, Term of Office, and Party Affiliation
• Table 2. History of Appropriations for Cuba Broadcasting
• Table 3. Annual Obligations for Radio and TV Marti*
• Appendixes
• Appendix. Advisory Panel
• Contacts
• Author Information
Introduction
Since their inception, Radio and TV Marti have attracted much controversy. In 1991, one of the findings of the U.S. Advisory Commission on Public Diplomacy was that TV Marti was not cost-effective when compared with other public diplomacy programs. In 1992, GAO questioned whether TV Marti met Voice of America broadcast standards, as required by law.1 In 1992 and 1993, news articles criticized the effectiveness of TV Marti in reaching the Cuban audience.2 In 1993, some Members of Congress debated the value of continuing funding it. Subsequently, the Commerce, Justice, State and Related Agencies Appropriation Act for FY1994 (P.L. 103-121) established an Advisory Panel on Radio and TV Marti to determine whether the broadcasting of these entities: (1) consistently meets standards for quality and objectivity established by law or by USIA, (2) is cost effective, (3) is being received by the Cuban people on a daily basis, (4) and if TV Marti is technically sound and effective and is consistently being received by a sufficient Cuban audience to warrant its continuation. Furthermore, the Act stipulated that appropriations would be withheld until 30 days after the Director makes reports after consulting with the Advisory Panel on measures that the USIA is taking with respect to recommendations of the Panel.
On December 21, 1993, the Director of the USIA, Joseph Duffey, announced the formation of the three-member Panel. The Panel met for the first time on December 28, 1993 and terminated in March 1994, as soon as the report was submitted to Congress. Generally, the Advisory Panel concluded that both Radio and TV Marti should be continued and streamlined. As required by the FY1994 appropriations law, USIA Director Joseph Duffey submitted a response to the findings of the Advisory Panel in July 1994, as well as his determination that TV Marti is technically sound and effective, is consistently being received by a sufficient Cuban audience, and is in the best interest of the United States to maintain.
At about the same time, Congress was considering the President’s $27.6 million budget request for Cuba Broadcasting for FY1995. The House approved $8.625 million, about $19 million below the request and $12.4 million less than current funding of $21 million; the House recommended no funding for TV Marti. The Senate, however, set funding closer to the Administration request– at $24.8 million for both Radio and TV Marti. In the end, the Senate version of the bill predominated and $24.8 million was appropriated for Cuba broadcasting (P.L. 103-317).
This report provides a legislative history and funding levels for Cuba Broadcasting. It discusses specific concerns some lawmakers have had with Radio and TV Marti over the years, and presents the Panel’s recommendations and the USIA Director’s response and determinations, as required by the FY1994 appropriations act.
Establishment of Radio and TV Marti
Since the early 1960s, U.S. policy toward Cuba has consisted largely of isolating the island nation through a comprehensive trade embargo.3 When Fidel Castro came to power in 1959 and began to build a Communist dictatorship, U.S.–Cuban relations deteriorated sharply. The Kennedy Administration broke U.S. diplomatic relations with Cuba in 1961 after Cuba demanded that U.S. Embassy staff be reduced to a skeleton crew. The United States subsequently sponsored the ill-fated Bay of Pigs invasion by anti-Castro Cubans in 1961, and in 1962 imposed a comprehensive trade embargo on Cuba because of Castro’s expropriation, without compensation, of U.S. properties in Cuba. Tensions peaked in October 1962 during the Cuban missile crisis when the Soviet Union attempted to install offensive missile sites in Cuba.
In the early to mid-1970s, there was some movement toward normalization of relations, but in the late 1970s, Cuba’s military involvement in Africa and its support for revolutionary groups in the Caribbean Basin region halted any movement toward improved relations. In the 1980s, U.S.-Cuban relations remained tense because of Cuba’s support for revolutionary movements abroad.
It was in this environment that in late September 1983, Congress approved specialized U.S. Voice of America (VOA) programming for Cuba with passage of the Radio Broadcasting to Cuba Act (P.L. 98-111).4 According to the legislation, while the VOA was already broadcasting to Cuba, “there is a need for broadcasts to Cuba which provide news, commentary and other information about the events in Cuba and elsewhere to promote the cause of freedom in Cuba.” As a result of the legislation, Radio Marti – named for 19th century Cuban nationalist hero Jose Marti – began broadcasting to Cuba on May 20, 1985.
In 1987, just two years after Radio Marti’s first broadcast, Congress approved funding for a study on the feasibility of establishing a U.S. government television service to Cuba in order to increase the free flow of information into that country. Congress then authorized and provided money for startup operations and testing of television broadcasting to Cuba in 1988 in the FY1989 State Department appropriations measure (P.L. 100-459, H.R. 4782). In 1990, Congress authorized the establishment of TV Marti when it approved the Television Broadcasting to Cuba Act as part of the State Department authorization measure for FY1990 and FY1991 (P.L. 101-246, H.R. 3793). Television broadcasting to Cuba began in March 1990 on an experimental basis and then began regular operations in August 1990. The broadcasts originate in Washington and are transmitted to Cudjoe Key, Florida, by satellite. The broadcasts are then beamed to Cuba after being uplinked to a transmitter in an aerostat.
In order for the FY1990-FY1991 funding of TV Marti to go forward, the legislation called for the President to determine that the testing of TV Marti demonstrated television broadcasting to Cuba was feasible and would not cause objectionable interference with the broadcasts of Cuban licenses. President Bush made the required determination in August 1990 (Presidential Determination No. 90-35) which allowed TV Marti to continue beyond its testing phase.
Under the legislation authorizing Radio Marti, a nine-member Advisory Board for Cuba Broadcasting (originally called the Board for Radio Broadcasting) was created. It has the task of reviewing the effectiveness of Radio and TV Marti and making any recommendations it may consider necessary. The Board’s members are appointed by the President, by and with the advice and consent of the Senate, with not more than five members of the same political party and with the President designating one member of the Board to serve as chairperson. The Act stipulated that the initial Board members were to stagger rotation off the Board in one, two or three years, as designated. Thereafter, Board member terms would be three years. The legislation also states that any board member whose term has expired may serve until the President appoints a successor.
Cuba Broadcasting as Part of U.S. Government Broadcasting
Currently, the United States government supports general broadcasting, such as Voice of America (VOA), and surrogate broadcasting, such as Cuba Broadcasting (Radio and TV Marti) and Radio Free Europe/Radio Liberty (RFE/RL).5 RFE/RL is independent of a U.S. government agency,6 while Cuba Broadcasting has always been within USIA’s Bureau of Broadcasting. Figure 1 shows how Radio and TV Marti, under the Office of Cuba Broadcasting, organizationally fit into the larger picture of U.S. government international broadcasting. (For more information on U.S. government international broadcasting, see CRS Report 94-29, International Broadcasting: Consolidation of U.S. Radio Services.)
Figure 1. Components of U.S. Government, International Broadcasting
U.S. Government
United States Information Agency
Board for International Broadcasting
Bureau of Broadcasting
RFE/RL, Inc.
Office of Television (Worldnet)
Office of Radio (VOA)
Office of
Cuba Broadcasting
Radio Free Europe
Radio Liberty
Radio Marti and
TV Marti
Radio Free Afghanistan
Source:
Congressional Concerns
Over the years, members of Congress have debated the merits of the United States broadcasting to Cuba. Congressional concerns about Radio and TV Marti have included the following: politicization of the Advisory Board for Cuba Broadcasting; meeting VOA broadcast standards; and audience size and accessibility of TV Marti broadcasts to Cubans.
Politicization
Concerns about politicization at Radio and TV Marti have centered around the role of the Advisory Board for Cuba Broadcasting and its controversial chairman, Jorge Mas Canosa. Many are concerned about the lack of turnover of the Board members and the chairman, as was intended by the originating legislation. As illustrated in Table 1, the terms of all Board members, including the chairman, will have expired by the end of October 1994. Some critics claim that the lack of turnover is due to a lack of willingness on the part of past and current Administrations to change the composition of the Board. They say that the conservative Mas Canosa has attempted to use his influence to gain control of the radio station so that it could be used to propagate the views of the Cuban American National Foundation, a Cuban exile organization founded by Mas Canosa in 1981. Some have argued further that Mas Canosa is using his position to promote himself as the next Cuban leader after Castro.
Former Radio Marti Director Ernesto Betancourt maintains that he was ousted from his position in 1990 because of his alleged opposition to TV Marti and because Mas Canosa claimed to have lost control of Radio Marti.7 In a 1994 statement, Betancourt stated that his ouster “opened the floodgates for the politicization of the station, dragging it into exile politics and seriously weakening its editorial integrity.”8
Mas Canosa maintains that he has never tried to use Radio Marti for personal or foundation propaganda.9 At the time, a USIA spokesman stated that Betancourt was being reassigned to fill a critical need for the position of director of a USIA research office, a position which Betancourt declined.10
Betancourt urges abolishing the Advisory Board contending that it has “lost the trust of Congress,” has been “caught in a conflict of interest and has become part of the problem and not of the solution.” Betancourt asserts that “these stations should not be platforms for a political afterlife in post-Castro Cuba.” If the Advisory Board were not abolished, he recommends that it should at least be renewed with a broader representation, “including members of, but not dominated by, the Cuban-American community,” with “no figure politically active among exile groups.”11
Another concern expressed by some observers is for the Board’s membership to be more balanced, with a broad gamut of Cuban American viewpoints represented. The current membership of the Advisory Board consists of five Republicans, three Democrats and one Independent. It has been chaired by Mas Canosa since its establishment. Many seem to concur that more diverse views are needed. Some believe that Mas Canosa should rotate off the Board entirely; some believe he should resign the chairmanship of the Advisory Board, but still remain as a Board member because of his experience.12
Table 1. Advisory Board for Cuba Broadcasting: Current Membership, Term of Office, and Party Affiliation
Member / Date Appointed or Reappointed / Term Length (Years) / Expiration / Party Affiliation
Jorge Mas Canosa (Chairman) / 10/15/86a / 3 / 08/12/89 / R
Clair Burgener / 12/02/91 / 3 / 10/27/94 / R
Jose Costa / 11/21/91b / 3 / 10/27/94 / R
Christopher Coursen / 06/18/91 / 3 / 10/27/93 / R
William Geoghegan / 03/25/91 / 3 / 10/27/92 / D
Joseph Glennon / 11/21/91c / 3 / 10/27/94 / R
Majorie Kampelman / 10/28/88d / 3 / 12/20/91 / D
Salvador Lew / 03/11/92 / 2 / 03/10/94 / I
Charles Tyroler / 11/21/91 / 1 / 10/27/92 / D
Sources: Advisory Board for Cuba Broadcasting, June 1994. Dates of original Senate confirmation were obtained from the Congressional Record.
Notes: R=Republican, D=Democrat, I=Independent
a. Mr. Mas Canosa has served as Chairman since he was confirmed by the Senate on August 8, 1984.
b. Mr. Costa has served on the Board since he was confirmed by the Senate on October 10, 1988.
c. Mr. Glennon has served on the Board since he was confirmed by the Senate on October 25, 1985.
d. Ms. Kampelman has served on the Board since she was confirmed by the Senate on December 19, 1987.
Broadcast Standards
Closely related to the question of politicization of Cuba Broadcasting is the issue of broadcasting standards of Radio and TV Marti. Some of the concerns that have been raised by observers and by some Members of Congress include: broadcasting too much Cuban-American news, too much entertainment and not enough news, a lack of editorials offering a wide variety of views, and a lack of on-air corrections of broadcasting errors.
In May 1992, the U.S. General Accounting Office (GAO) issued a report on TV Marti’s compliance with broadcast standards.13 As part of the study, the GAO employed three consultants to watch broadcasts and assess program quality and compliance with Voice of America standards that broadcasts be objective, accurate, balanced, and present a variety of views. According to the report, two of the three consultants “believed that the broadcasts related to Cuba and the Cuban-American community lacked balance and did not meet established Voice of America standards.
The other consultant believed that the broadcasts generally met the standards but that improvements were needed.” In addition, the report noted that “TV Marti’s in-house critics also observed that some broadcasts might not meet standards.” GAO recommended that the USIA Director instruct VOA to institute procedures to ensure that TV Marti’s broadcasts meet established VOA standards. With regard to Radio Marti, in October 1992, GAO staff met with officials of USIA’s Bureau of Broadcasting about allegations that Radio Marti broadcasts did not meet VOA standards and suggested that the Bureau consider establishing an external review committee. In order to implement the GAO recommendations, the Office of Cuba Broadcasting established External Review Panels to review Radio and TV Marti’s news and programming. Concern has surfaced, however, regarding the objectivity of the External Review Panels, since they are selected by the Office of Cuba Broadcasting.
A long-time Radio Marti staff member, J. Richard Planas, recently stated “that there is significant politicization of news and information within Radio Marti to the extent that we may need to consider if Radio Marti is doing both the Cuban people and U.S. foreign policy a disservice.” According to Planas, Radio Marti editorial “guidelines are routinely ignored in deliberate attempts to favor a specific political agenda.” The agenda consists of: stressing commentaries that are critical and derisive of the Cuban regime, while downplaying favorable evaluations and statements of support toward Cuba; stressing the “hard line” policy toward Cuba while downplaying criticism of the U.S. embargo or views favoring negotiations with Castro; presenting favorable aspects of Cuban American political leaders who support the “hard line” policy while downplaying or even censoring criticism of these leaders; emphasizing the deficiencies of the Cuban regime while de-emphasizing its accomplishments; and favoring broadcasts of opinions and views about, or calls for, the imminent fall of the Cuban regime. 14
Former Director of the Office of Cuba Broadcasting, Antonio Navarro, maintains that over the past three years “Radio Marti has drastically increased the volume of news and information as well as the diversity of responsible opinions in its programming” and that “no one person, organization or viewpoint dominates or controls any aspect of Radio or TV Marti.”15
In early June, because of the numerous allegations regarding the management of the Office of Cuba Broadcasting, Representative John Conyers, Chairman of the House Government Operations Committee’s Legislation and National Security Subcommittee, wrote to USIA Director Duffey. Representative Conyers expressed concerns about: alleged political bias which is reportedly undermining the accuracy and objectivity of broadcasts to Cuba; alleged retaliation against employees in the Office of Cuba Broadcasting who have criticized this political bias; and alleged cronyism whereby new employees have been hired not for their expertise, but because of their connections to influential individuals.16 Depending on Director Duffey’s response to Representatives Conyers letter (which was requested by June 20, 1994, but reportedly has not yet been received), the Subcommittee may hold hearings to investigate the allegations.17
TV Marti’s Broadcasting Audience
Another fundamental concern for many observers, including Members of Congress, is whether TV Marti is actually being viewed in Cuba. Two reasons for low viewership are (1) the ratification by both the United States and Cuba of the International Telecommunications Convention which requires that TV stations be established so as not to interfere with other nations’ broadcasts. To comply with this treaty, U.S. broadcasts in Cuba must be scheduled from 3:30 a.m. to 6:00 a.m.; and (2) the constant and effective jamming of the broadcasts by the Cuban government.
A 1991 report issued by the President’s Task Force on U.S. government International Broadcasting noted that TV Marti is impeded “because it is forced to broadcast during a time period when there are few viewers.” The Task Force report recommended that “the U.S. government should view this as a matter of high priority and should act with vigor to try to gain better broadcast hours,” but also asserted that “if it is not possible to change and extend the hours of broadcasting to reach a larger audience, the service should be terminated.”18 In March 1994, the Chairman of the Task Force, John Hughes, stated that the Task Force probably had the same views as in the 1991 report, and characterized the 1991 report as concluding “that it was pointless and wasteful to continue TV Marti’s operations, unless the viewing audience in Cuba could be substantially expanded.”19
In large part because of the viewership problems, the U.S. Advisory Commission on Public Diplomacy20 stated in a 1991 report “that TV Marti is not cost-effective at the present time when compared with other public diplomacy programs of proven value.”21 In 1993, the Commission reiterated its statement that TV Marti was not cost effective, and recommended that “it should be shut down and its resources directed to productive public diplomacy activities.” The report noted that despite sizeable funding, “consistent and effective Cuban jamming has resulted in only trace audiences for TV Marti’s programs.”22
Congressional Funding
Every two years, Congress authorizes appropriations for State Department, USIA and broadcasting entities, including the Office of Cuba Broadcasting within the USIA as part of the Foreign Relations Authorizations Act. Annually, Congress passes appropriations for USIA within the Commerce, Justice, State and Related Appropriations Act. Figure 2 illustrates the funding level of Radio and TV Marti compared to funding for other U.S. government-funded international broadcasts.
Because of congressional concerns about Cuba Broadcasting, there have been attempts by some Members to cut back or curtail funding for either one or both broadcasting operations. Nevertheless, until FY1994 both programs have been funded at levels similar to those requested by the Administration. Table 2 shows the historical record of congressional appropriations for Cuba Broadcasting, including the number of positions funded. Table 3 shows the actual Radio and TV Marti expenditures.
Figure 2. Funds Available for U.S. Government International Radio and Television Funds Broadcasting in 1993
(in millions) *
Source: U.S. Advisory Commission on Public Diplomacy 1993 Annual Report, p. 43.
Note: * Funds for U.S. government international broadcasting in FY1993 total $844 million. Amounts reflect FY1993 appropriations plus carryover balances. The ratio of radio to television is $800 million to $44 million – or 18 to 1.
Table 2. History of Appropriations for Cuba Broadcasting
Fiscal Years / Funds ($ in thousands) / Domestic Positions
1984 / $10,000 / 178
1985 / 8,500 / 187
1986 / 10,240 / 187
1987 / 12,759 / 185
1988 / 12,759 / 181
1989* / 18,675 / 184
1990* / 28,428 / 320
1991 / 31,069 / 320
1992 / 38,988 / 320
1993 / 28,531 / 317
1994 / 21,000 / 288
1995 / 24,809 / 262
Source: USIA, Program and Budget in Brief, various years, USIA Congressional Presentation, FY1995, and Congressional Record, June 27, 1994.
Note: * The figures shown for FY1989 and FY1990 include funds appropriated for the TV Marti program as transfers from the Radio Construction account – FY1989=$7,500,000 and FY1990=$15,891,000.
Table 3. Annual Obligations for Radio and TV Marti*
(actual obligations in $ millions)
Fiscal Years / Radio Marti / Television Marti
1984 / 3.382 / –
1985 / 14.823 / –
1986 / 11.473 / –
1987 / 12.880 / –
1988 / 11.900 / –
1989 / 12.778 / 1.464
1990 / 12.481 / 10.662
1991 / 15.538 / 16.641
1992 / 16.628 / 16.515
1993 / 15.892 / 12.658
1994 / 14.000 / 7.000
1995 / 13.167 / 11.642
Total / 154.942 / 76.582
Source: Office of the Comptroller, U.S. Information Agency, March 1, 1994.
Note: * Obligations are defined as an order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
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Part 2 of 2
FY1994 Funding and Conditions
In the Commerce, Justice, State and Related Agencies Appropriations Act of FY1994 (P.L. 103-121, signed into law October, 27, 1993), Congress withheld $7.5 million for the two programs pending a report by the Advisory Panel on Radio and TV Marti, also established by the 1994 law. The Panel was created to study “the purposes, policies, and practices of radio and television broadcasting to Cuba.” The legislation called for the Advisory Panel to issue a report containing a statement of its findings and conclusions and containing specific findings and recommendations with respect to: whether such broadcasting consistently meets the standards for quality and objectivity established by law or by USIA; whether such broadcasting is cost effective; the extent to which such broadcasting is already being received by the Cuban people on a daily basis from credible sources; and whether TV Marti broadcasting is technically sound and effective and is consistently being received by a sufficient Cuban audience to warrant its continuation.
The law called for the USIA Director to submit a report to Congress, not later than July 1, 1994, on “his recommendations as to whether TV Marti broadcasting is technically sound and effective and is consistently being received by a sufficient Cuban audience to warrant its continuation and whether the interests of the United States are better served by maintaining television broadcasting to Cuba, by terminating television broadcasting to Cuba and strengthening radio broadcasting to Cuba or by funding other activities related to promoting democracy in Cuba authorized by law.” In formulating the report, the USIA Director was to consult with the Board for International Broadcasting and take into account any relevant recommendations of the Advisory Panel.
The law withholds $5 million for Radio Marti until 30 days after the USIA Director reports to Congress (not later than July 1, 1994) on what specific measures the USIA is taking with respect to the recommendations of the Advisory Panel. With regard to TV Marti, the law withholds $2.5 million until after the USIA Director submits his report. After that time, funds shall only be available for the orderly termination of television broadcasting to Cuba unless the Director of USIA determines, in his report to Congress, “that maintaining television broadcasting to Cuba is technically sound and effective, is consistently being received by a sufficient Cuban audience to warrant its continuation, and is in the best interests of the United States.” (See discussion below for the results of the Advisory Panel study and USIA determination.)
FY1995 Funding
In the Commerce, Justice, State and Related Agencies Appropriations Act of FY1995 (P.L. 103-317, signed into law August 26, 1994), Congress appropriated $24.809 million for Radio and TV Marti, overcoming a House attempt to eliminate funding for TV Marti and substantially reducing funding for Radio Marti. The Administration had requested a funding level of $27.609 million for the two programs, with $15.167 for Radio Marti and $12.442 million for TV Marti.
On June 27, 1994, the House passed the Commerce, Justice, State and Related Agencies Appropriations for FY1995, H.R. 4603, which eliminated funds for TV Marti and provided $8.625 million for Radio Marti, 43% less than the budget request of $15.167 million. According to the House Appropriations Committee report to the bill (H.Rept. 103-552): “In light of the findings of the Advisory Panel on Radio and TV Marti that at the present time TV Marti cannot be considered cost effective, and the Committee not being inclined to fund in any way broadcasting enhancements to make TV Marti cost effective, the Committee is denying funding for TV Marti for fiscal year 1995.”
With regard to the cutback in funding for Radio Marti, the House Appropriations Committee stated that “it intends that Radio Broadcasting to Cuba reduce its operations by approximately one-third to bring its resources more in line with commercial radio stations in the United States.” The Committee noted that the amount recommended for Radio Marti funding is “84 percent more than the average for a private sector commercial radio station.” The Committee further stated that it “recognizes the value of providing news and information to the people of Cuba that is balanced” and “urges” the USIA Director “to ensure that Radio Marti’s broadcasts meet these criteria and that they comply fully with established Voice of America broadcast quality standards.”
On July 22, 1994, the Senate passed its version of H.R. 4603, which would provide $24.809 million for Radio and TV Marti, about 10% less than the Administration’s request. The Senate Appropriations Committee stated in its report to the bill (Senate Report 103-309) that it “unequivocally rejects the House bill’s action to eliminate funding for TV Marti,” and “believes that TV Marti is an integral part of the United States’ effort to get objective news, commentary, and other uncensored information directly to the Cuban people.” The Committee recommended providing $1.2 million to convert TV Marti from VHF to UHF, as called for by the Advisory Panel, and noted that its overall funding level for Radio and TV Marti “reflects efficiencies in the Cuban broadcasting services.”
An amendment offered on the Senate floor by Senator Baucus to eliminate TV Marti generated debate on whether or not TV Marti is cost-effective. It was ultimately withdrawn, however, after Senator Mack introduced a perfecting amendment that, instead of eliminating funds for TV Marti, would have condemned the Cuban government for the deliberate sinking of a tugboat filled with Cubans (including many women and children) trying to escape Cuba.
In the end, the Senate predominated in conference on H.R. 4603 with regard to Cuba broadcasting, and Congress appropriated $24.809 million for both programs.
Advisory Panel Report and The USIA Director’s Response
The report of the Advisory Panel on Radio Marti and TV Marti, issued in March 1994, “concluded that despite the obstacles, interference and shortcomings which have hampered both Radio and TV Marti, the United States interest is served by their continuing to air.” Nevertheless, the Advisory Panel made 14 specific recommendations for streamlining operations, reforming supervisory structures of the Office of Cuba Broadcasting, and improving U.S. broadcasts to Cuba. (See Appendix for a listing of the 14 recommendations along with the USIA Director’s responses to the recommendation.)
The July 1994 response of the USIA Director to the Advisory Panel report agreed with most of the Panel’s recommendations. USIA Director Duffy agreed with the Panel that Radio Marti has an important role as a “unique source of trustworthy, uncensored information for significant numbers of Cubans,” and he stated that USIA has already begun to put into effect many of the Panel’s recommendations which “will help bring greater professionalism, diversification, and balance to Radio Marti’s programming.” With regard to TV Marti, the USIA Director agreed with the Panel’s recommendation that it continue, and asserted that while Cuban jamming of the broadcasts and its inconvenient early morning broadcast hours have kept audiences small, “it does seen clear, however, that a significant number of Cuban citizens have attempted to tune in to these broadcasts and are interested in their content.”
According to the USIA Director, his response was written after “careful consideration” of the Panel report and after consultation with an Executive Branch Interagency Working Group on U.S.-Cuban policy. The Director also asserted that his findings were “guided by statements of the President and legislative actions by the United States Congress.”
Some Members of Congress expressed concern that the Advisory Panel was created to review specific operational issues of radio and television broadcasting to Cuba and therefore went beyond its mandate in issuing its recommendations. Representative David Skaggs noted in a statement submitted to the Advisory Panel that “Congress has specifically directed the Panel to scrutinize Radio and TV Marti with regards to program quality and objectivity, cost-effectiveness, and the extent to which news and information is already available in Cuba on a daily basis through commercial broadcast sources,” as well as “whether TV Marti is technically sound and effective and is consistently being received by a sufficient Cuban audience to warrant its continuation.” He expressed concern that the recommendations of TV Marti supporters to make TV Marti more resistant to jamming – like converting from VHF to UHF –”ignore the overriding questions of feasibility, cost-effectiveness, and legality that remain.”23
Other Members maintain that the Advisory Panel was correct in taking a broad interpretation of its mandate, and point out that the legislation establishing the Panel called for it to study the “purposes, policies and practices of radio and television broadcasting to Cuba.” As noted by Senator Ernest Hollings in a letter to the Advisory Panel, “it was never our intent to have the Advisory Panel conduct solely a narrow, technical review of these programs.”24 In testimony before the Advisory Panel, Representative Robert Torricelli asserted that “Congress not only expected a report on the technical effectiveness of broadcasting to Cuba, but also an evaluation of the overall effectiveness of these two institutions as vehicles to promote democracy in Cuba.”25
Advisory Board
The Panel report had two recommendations regarding the Advisory Board for Cuba Broadcasting. First, the Panel recommended that the chairperson and the members of the Advisory Board be rotated every three years, and the USIA Director endorsed this recommendation in his response. USIA Director Duffey noted that there has not been significant turnover of the Board. He noted that under three Administration just 14 people have served on the nine-member Board, but the Director also pointed out that the terms of all the Board’s members will be up this year.
The second Panel recommendation regarding the Advisory Board was that it should be a consultative body not involved in day-to-day broadcasting operations or in the recruitment or promotion of personnel. The USIA Director supported this recommendation to limit the scope of the Advisory Board and noted that the Board already has a legislative mandate to work through appropriate channels. The legislation provides that the Board is to review the effectiveness of Radio and TV Marti and make recommendations to the President and to Director and Associate Director for Broadcasting of USIA.
Broadcast Standards
The Panel report made numerous recommendations to improve the broadcast standards of Radio and TV Marti. These included: clarifying editorial decision-making; broadcasting daily editorials; broadcasting corrections; working to balance broadcasts (with a view toward concentrating on news and information and adjusting the amount of programming devoted to the Cuban American community); changing the current practice of having the Office of Cuba Broadcasting select the members of External Review Panels and the material they select to review; producing video reports; and broadcasting news on satellite at prime time. The USIA Director’s report to Congress responded in detail about how the Office of Cuba Broadcasting is implementing the broadcast standard recommendations of the Advisory Panel (see Appendix).
Professional Standards for the Office of Cuba Broadcasting
The Panel made a recommendation to review the Office of Cuba Broadcasting’s personnel recruitment and supervision standards to ensure that appropriate professional standards are met consistently. In response, the USIA Director reported that the Bureau of Broadcasting was taking measures to ensure professional standards. Director Duffey pointed out that the measures being implemented originated from a 1993 review conducted by the USIA’s Office of Inspector General (OIG) that was released in May 1994.26
Future of TV Marti
The Panel concluded that TV Marti’s broadcasts are technically sound and contain essential information not otherwise available to the Cuban people. The Panel reported “Cuban jamming prevents those broadcasts from being received by any substantial number of Cubans,” and as a result, “TV Marti cannot now be considered cost-effective” by the usual economic criteria. Nevertheless, the Panel asserted that “the Cuban people have an ardent desire and a genuine need to receive the programming produced by TV Marti,” and therefore recommended that TV Marti be converted from the current VHF to UHF transmission. This would require funding, but would allow broadcasting throughout the day, and would be more difficult for the Cuban government to jam. While the Panel did acknowledge that many Cubans do not own TVs with UHF reception capability, more and more TVs in Cuba are coming from Japan, South Korea, Taiwan, China, and Europe. Therefore, future viewership would be expected to increase with UHF transmission.
The Panel suggested that eliminating TV Marti would send a message to the Cuban government and people that the United States is not committed to democracy and human rights promotion. Furthermore, the Panel asserted that in the event of a crisis or upheaval in Cuba’s future, it would be important to have TV Marti available as a news source. Research presented to the Panel indicated that at moments of severe crisis, people turn to television first. In the event of a crisis, if TV Marti were not already operating, it would take several months or more to begin operations.
In a dissenting view, Chairman of the Board for International Broadcasting, Daniel Mica, stated to the Advisory Panel “that TV Marti is an experiment that should be shelved for the time being,” but suggested that broadcasts to Cuba could be resumed in the future “when there is a greater chance for technical success, assuming such resumption is still warranted by U.S. foreign policy concerns.”27 Several other witnesses to the Advisory Panel, while favoring the concept of television broadcasting to Cuba, believe that the station should be shut down unless there are changes to increase viewership.
In his July 1994 response to the Advisory Panel report, USIA Director Duffy strongly supported TV Marti, maintaining that the best interests of the United States are being served by its continuation. The Director also maintained that television broadcasting to Cuba is technically sound and effective, and that it is consistently being received by a sufficient Cuban audience to warrant its continuation. In justifying his finding about a sufficient Cuban audience, Director Duffey cited a December 1993 USIA Office of Research survey of Cubans visiting the U.S. Interests Section in Havana. The survey showed that while 4 percent of the Cubans surveyed reported regularly watching the signal for more than five minutes, 38 percent reported attempting to tune in. According to Duffey, “TV Marti’s inability to reach larger audiences in Cuba is not the result of any deficiency on the part of TV Marti, but rather the political decision on the part of the Cuban regime to deny the Cuban people access to free news and information.”
Appendix. Advisory Panel
The Advisory Panel made 14 specific recommendations to which the USIA Director responded:28
(1) Down-size management–The Panel questioned the need to spend more than $1 million to compensate officials who supervise, but never become involved in the actual broadcasts. The Director stated that the Office of Cuba Broadcasting has proposed reducing management and production costs that will result in a $4 million saving by the end of FY1995. Supervisory positions are being reduced by 20 percent in Radio and TV Marti, he said.
(2) Review personnel management–The Panel recommended personnel recruitment standards be consistently met. Especially of concern to the Panel was that those in charge of news and programs be fluent in both Spanish and English. According to the Director, measures to improve personnel standards are currently underway.
(3) Clarify editorial decision-making–The Panel recommended that the Office of Cuba Broadcasting simplify its cumbersome editorial guidelines and provide for a single, official line of authority for editorial decisions. The Director stated that he has established a single line of authority for editorial decisionmaking.
(4) Broadcast daily editorials–The Panel encouraged the addition of editorials on both Radio and TV Marti, asserting that such editorials would help to build a sturdier wall between news and policy. The Director responded by saying that editorial decisions are currently made in a daily meeting in the Office of Cuba Broadcasting. Mr. Duffey stated he is reviewing the possibility of strengthening VOA’s editorial production on Cuba and U.S.-Latin American relations for use by the Office of Cuba Broadcasting.
(5) Broadcast corrections–The Panel urged daily corrections that would enhance the credibility of the broadcasts. The Director’s response stated that corrections will be broadcast as soon as possible after the error is discovered, usually within the same or next broadcast cycle.
(6) Balance programming–The Panel expressed the belief that a reduction of entertainment programming and Cuban-American news would enhance the balance of both Radio and TV Marti broadcasts. Director Duffey stated that Director of the Office of Cuba Broadcasting, Richard Lobo, already has introduced programming changes to achieve greater balance. The VOA Handbook establishes requirements regarding balanced reporting that will be applied to the Office of Cuba Broadcasting. He went on to say that in the past three years, Radio and TV Marti have increased the amount of news and informative programming, the proportion of news from and about Cuba, and participation in programs by Cubans living on the island.
(7) Modify external review procedures–The Panel disagreed with the current practice that the Office of Cuba Broadcasting selects the External Review Panels and the materials they review. The Director stated that the USIA is currently reviewing its process for program selection for the Radio Marti External Review Panel and is developing a plan of action to be completed by September 30, 1994 to ensure independence. The Director said that current methods for selection of External Review Panels were approved by the Bureau of Broadcasting and USIA, and satisfy criticism made by the General Accounting Office.
(8) Reduce live radio broadcasting–The Panel recommended that Radio Marti could reduce costs and editorial error without significantly limiting the information made available to listeners by reducing the current 24 hour schedule of live broadcasting to 18 hours. The Director corrected the statement that Radio Marti broadcasts live for 24 hours each day. He stated that live broadcasting is limited to seven hours a day with the exception of brief hourly newscasts from 5:00 a.m. to 2:15 a.m. the following day. The rest of the time consists of pre-recorded broadcasting.
(9) Convert TV Marti to UHF–The Panel asserted that TV Marti should convert to UHF transmission to allow for broadcasting during prime time and to increase the difficulty in jamming by the Cuban government. Researching this concept would require about one year, according to the Panel. The Director believed that more research on converting TV Marti to UHF is necessary before investing in it. If research concludes that transferring to UHF would make a significant positive difference in the effectiveness of TV Marti, the Director advised asking Congress for support at that time.
(10) Reduce TV Marti broadcasting during transition to UHF–Such a reduction in broadcasting would keep the TV in operation, but reduce costs while researching the transition to UHF. The Director responded by stating that if this recommendation was made for cost savings, the impact would be small. Currently TV Marti repeats a half hour newscast three times daily. The difference if changed to repeating a fifteen minute newscast four times daily would be negligible, he said. He went on to say that contrary to some perceptions, TV Marti broadcasts are almost exclusively news and information.
(11) Produce video reports–During the transition to UHF, TV Marti should explore the possibility of producing videotape documentaries and features for distribution in Cuba. Mr. Duffey stated that TV Marti’s Programs Department is currently producing and has produced several documentaries for broadcast on TV Marti. He cautions that the Cuban recipients of these tapes run a risk of prosecution under the Enemy Propaganda Act of the Cuban Government.
(12) Broadcast news at prime time–The Panel encouraged TV Marti to consider broadcasting its hour of newscast on satellite during prime time. The Director is currently exploring the possibility of this scheduling change with USIA’s Telecommunications Directorate.
(13) Rotate chairperson and members of the Advisory Board for Cuba Broadcasting–The Panel recommended that the chairperson and the members of the Advisory Board for Cuba Broadcasting be rotated every three years, as was originally intended in the legislation. The Director agreed with this recommendation, saying that there has not been significant turnover of the Board under the past three Administrations.
(14) Limit scope of the Advisory Board–The Panel expressed the belief that the Advisory Board should have consultative and not broadcasting functions, nor be involved in recruitment or promotion of personnel functions. The Director stated he expects the Board to follow its mandate and implement it through the appropriate channels. According to the Radio Broadcasting to Cuba legislation, the Advisory Board for Cuba Broadcasting “shall review the effectiveness of the activities carried out under the act and the Television Broadcasting to Cuba Act and shall make such recommendations to the President and the Broadcasting Board of Governors as it may consider necessary.”
Author Information
Mark P. Sullivan
Specialist in Latin American Affairs
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material.
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Notes:
1 U.S. General Accounting Office. TV Marti Costs and Compliance with Broadcast Standards and International Agreements. May 1992. GAO/NSIAD-92-199.
2 Hockstader, Lee. “Miami Likes TV Marti; Cuba Can’t See It.” Washington Post, April 16, 1992; Rohter, Larry. “Miami’s Cuban Exiles May Lose TV Station.” New York Times, July 10, 1993.
3 For a discussion of U.S.-Cuban relations and current legislative action, see CRS Issue Brief 94005, Cuba: Issues for Congress, by Mark P. Sullivan.
4 The measure, which was passed by the Senate on September 13, 1983 (voice vote) and by the House on September 29 (302-109) was signed into law October 4, 1983. The Reagan Administration had first requested the creation of specialized radio broadcasting for Cuba in legislation introduced in 1981, but the final measure was approved only after nearly two years of intense debate and significant compromise. For further details, see: U.S. Congress. House. Committee on Foreign Affairs. Congress and Foreign Policy 1983. p. 55.
5 Government foreign broadcasting operations are divided into two basic types of services. Both provide news and information. “Surrogate” broadcasting services usually target countries where repressive governments prohibit the existence of a free and independent media. “General” broadcasting services tend to emphasize information, perspectives, policies and the culture of the broadcasting nation. Radio and TV Marti, Radio Free Europe/Radio Liberty are examples of surrogate broadcasting; Voice of America is an example of general broadcasting.
6 The Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (P.L. 103-236) requires that RFE/RL be privatized by December 31, 1999, and that after September 30, 1995 Government grants can be made to RFE/RL only if its governing board is the Board of Governors, not the current governing body, Board for International Broadcasting (BIB).
7 Parker, Laura. “Radio Marti Director Ousted as Exiles Discuss Returning to Cuba.” Washington Post. March 13, 1990. p. A3.
8 Report of the Advisory Panel on Radio Marti and TV Marti. Volume 2, Statements to the Panel, March 1994 [hereafter cited as Advisory Panel Report, Volume 2]. Statement of Ernesto Betancourt.
9 Parker, Laura. “Radio Marti Director Ousted as Exiles Discuss Returning to Cuba.” Washington Post. March 13, 1990. p. A3.
10 Price, Joyce. “Troika to Head Radio Marti after Director is Reassigned.” Washington Times. March 19, 1990. p. A5.
11 Advisory Panel Report, Volume 2. Statement of Ernesto Betancourt.
12 For example, see statement of Carlos Alberto Montaner in Advisory Panel Report, Volume 2.
13 U.S. General Accounting Office. TV Marti, Costs and Compliance with Broadcast Standards and International Agreements. May 1992. GAO/NSIAD-92-199.
14 Advisory Panel Report, Volume 2. Statement of J. Richard Planas.
15 Advisory Panel Report, Volume 2. Statement of Antonio Navarro.
16 Letter from Representative John Conyers, Jr., to USIA Director Joseph Duffey, June 7, 1994.
17 Television conversation with Representative Conyers’ staff, July 28, 1994.
18 U.S. Department of State. The Report of the President’s Task Force on U.S. Government International Broadcasting. December 1991. p. 15.
19 Advisory Panel Report, Volume 2. Statement of John Hughes, Chairman, The President’s Task Force on U.S. Government International Broadcasting.
20 As set forth in the U.S. Information and Educational Exchange Act, P.L. 80-402, the seven-member commission is appointed by the President, by and with the advice and consent of the Senate, to represent the public interest, to formulate and recommend policies and programs for USIA, and to appraise the effectiveness of USIA policies and programs.
21 U.S. Advisory Commission on Public Diplomacy. 1991 Report. p. 42.
22 U.S. Advisory Commission on Public Diplomacy. 1993 Report. pp. 36, 44.
23 Advisory Panel Report, Volume 2. Statement of Representative David E. Skaggs.
24 Advisory Panel Report, Volume 2. Letter of Senator Ernest Hollings to the Advisory Panel.
25 Advisory Panel Report, Volume 2. Testimony of Representative Robert G. Torricelli.
26 The OIG review examined allegations that 10 Radio Marti employees were unqualified for their positions or biased in favor of Cuban Marxists and Socialists, and an allegation that Radio Marti’s news director could not speak fluent English, as required for the position. With regard to the 10 employees, the OIG report determined that they were qualified, and pointed out that an External Review Panel had recently reported that Radio Marti programming was generally well presented and relevant to the Cuban audience. Nevertheless, the OIG found that the process of selecting broadcasts for review should be improved. With regard to the news director, the OIG verified the allegation that the news director could not speak fluent English and found that the news director’s appointments were inconsistent with the Office of Cuba Broadcasting’s excepted service personnel policies. Consequently, OIG recommended that written policies be established for all excepted service personnel actions, and that the news director’s appointments be reviewed.
27 Advisory Panel Report, Volume 2. Statement by Daniel A. Mica, Chairman of the Board for International Broadcasting.
28 Report of the Advisory Panel on Radio Marti and TV Marti, Volume 1, Findings and Conclusions, March 1994 [hereafter cited as Advisory Panel Report, Volume 1]; and USIA Director’s Response to the Report of the Advisory Panel on Radio Marti and TV Marti, July 8, 1994.
FY1994 Funding and Conditions
In the Commerce, Justice, State and Related Agencies Appropriations Act of FY1994 (P.L. 103-121, signed into law October, 27, 1993), Congress withheld $7.5 million for the two programs pending a report by the Advisory Panel on Radio and TV Marti, also established by the 1994 law. The Panel was created to study “the purposes, policies, and practices of radio and television broadcasting to Cuba.” The legislation called for the Advisory Panel to issue a report containing a statement of its findings and conclusions and containing specific findings and recommendations with respect to: whether such broadcasting consistently meets the standards for quality and objectivity established by law or by USIA; whether such broadcasting is cost effective; the extent to which such broadcasting is already being received by the Cuban people on a daily basis from credible sources; and whether TV Marti broadcasting is technically sound and effective and is consistently being received by a sufficient Cuban audience to warrant its continuation.
The law called for the USIA Director to submit a report to Congress, not later than July 1, 1994, on “his recommendations as to whether TV Marti broadcasting is technically sound and effective and is consistently being received by a sufficient Cuban audience to warrant its continuation and whether the interests of the United States are better served by maintaining television broadcasting to Cuba, by terminating television broadcasting to Cuba and strengthening radio broadcasting to Cuba or by funding other activities related to promoting democracy in Cuba authorized by law.” In formulating the report, the USIA Director was to consult with the Board for International Broadcasting and take into account any relevant recommendations of the Advisory Panel.
The law withholds $5 million for Radio Marti until 30 days after the USIA Director reports to Congress (not later than July 1, 1994) on what specific measures the USIA is taking with respect to the recommendations of the Advisory Panel. With regard to TV Marti, the law withholds $2.5 million until after the USIA Director submits his report. After that time, funds shall only be available for the orderly termination of television broadcasting to Cuba unless the Director of USIA determines, in his report to Congress, “that maintaining television broadcasting to Cuba is technically sound and effective, is consistently being received by a sufficient Cuban audience to warrant its continuation, and is in the best interests of the United States.” (See discussion below for the results of the Advisory Panel study and USIA determination.)
FY1995 Funding
In the Commerce, Justice, State and Related Agencies Appropriations Act of FY1995 (P.L. 103-317, signed into law August 26, 1994), Congress appropriated $24.809 million for Radio and TV Marti, overcoming a House attempt to eliminate funding for TV Marti and substantially reducing funding for Radio Marti. The Administration had requested a funding level of $27.609 million for the two programs, with $15.167 for Radio Marti and $12.442 million for TV Marti.
On June 27, 1994, the House passed the Commerce, Justice, State and Related Agencies Appropriations for FY1995, H.R. 4603, which eliminated funds for TV Marti and provided $8.625 million for Radio Marti, 43% less than the budget request of $15.167 million. According to the House Appropriations Committee report to the bill (H.Rept. 103-552): “In light of the findings of the Advisory Panel on Radio and TV Marti that at the present time TV Marti cannot be considered cost effective, and the Committee not being inclined to fund in any way broadcasting enhancements to make TV Marti cost effective, the Committee is denying funding for TV Marti for fiscal year 1995.”
With regard to the cutback in funding for Radio Marti, the House Appropriations Committee stated that “it intends that Radio Broadcasting to Cuba reduce its operations by approximately one-third to bring its resources more in line with commercial radio stations in the United States.” The Committee noted that the amount recommended for Radio Marti funding is “84 percent more than the average for a private sector commercial radio station.” The Committee further stated that it “recognizes the value of providing news and information to the people of Cuba that is balanced” and “urges” the USIA Director “to ensure that Radio Marti’s broadcasts meet these criteria and that they comply fully with established Voice of America broadcast quality standards.”
On July 22, 1994, the Senate passed its version of H.R. 4603, which would provide $24.809 million for Radio and TV Marti, about 10% less than the Administration’s request. The Senate Appropriations Committee stated in its report to the bill (Senate Report 103-309) that it “unequivocally rejects the House bill’s action to eliminate funding for TV Marti,” and “believes that TV Marti is an integral part of the United States’ effort to get objective news, commentary, and other uncensored information directly to the Cuban people.” The Committee recommended providing $1.2 million to convert TV Marti from VHF to UHF, as called for by the Advisory Panel, and noted that its overall funding level for Radio and TV Marti “reflects efficiencies in the Cuban broadcasting services.”
An amendment offered on the Senate floor by Senator Baucus to eliminate TV Marti generated debate on whether or not TV Marti is cost-effective. It was ultimately withdrawn, however, after Senator Mack introduced a perfecting amendment that, instead of eliminating funds for TV Marti, would have condemned the Cuban government for the deliberate sinking of a tugboat filled with Cubans (including many women and children) trying to escape Cuba.
In the end, the Senate predominated in conference on H.R. 4603 with regard to Cuba broadcasting, and Congress appropriated $24.809 million for both programs.
Advisory Panel Report and The USIA Director’s Response
The report of the Advisory Panel on Radio Marti and TV Marti, issued in March 1994, “concluded that despite the obstacles, interference and shortcomings which have hampered both Radio and TV Marti, the United States interest is served by their continuing to air.” Nevertheless, the Advisory Panel made 14 specific recommendations for streamlining operations, reforming supervisory structures of the Office of Cuba Broadcasting, and improving U.S. broadcasts to Cuba. (See Appendix for a listing of the 14 recommendations along with the USIA Director’s responses to the recommendation.)
The July 1994 response of the USIA Director to the Advisory Panel report agreed with most of the Panel’s recommendations. USIA Director Duffy agreed with the Panel that Radio Marti has an important role as a “unique source of trustworthy, uncensored information for significant numbers of Cubans,” and he stated that USIA has already begun to put into effect many of the Panel’s recommendations which “will help bring greater professionalism, diversification, and balance to Radio Marti’s programming.” With regard to TV Marti, the USIA Director agreed with the Panel’s recommendation that it continue, and asserted that while Cuban jamming of the broadcasts and its inconvenient early morning broadcast hours have kept audiences small, “it does seen clear, however, that a significant number of Cuban citizens have attempted to tune in to these broadcasts and are interested in their content.”
According to the USIA Director, his response was written after “careful consideration” of the Panel report and after consultation with an Executive Branch Interagency Working Group on U.S.-Cuban policy. The Director also asserted that his findings were “guided by statements of the President and legislative actions by the United States Congress.”
Some Members of Congress expressed concern that the Advisory Panel was created to review specific operational issues of radio and television broadcasting to Cuba and therefore went beyond its mandate in issuing its recommendations. Representative David Skaggs noted in a statement submitted to the Advisory Panel that “Congress has specifically directed the Panel to scrutinize Radio and TV Marti with regards to program quality and objectivity, cost-effectiveness, and the extent to which news and information is already available in Cuba on a daily basis through commercial broadcast sources,” as well as “whether TV Marti is technically sound and effective and is consistently being received by a sufficient Cuban audience to warrant its continuation.” He expressed concern that the recommendations of TV Marti supporters to make TV Marti more resistant to jamming – like converting from VHF to UHF –”ignore the overriding questions of feasibility, cost-effectiveness, and legality that remain.”23
Other Members maintain that the Advisory Panel was correct in taking a broad interpretation of its mandate, and point out that the legislation establishing the Panel called for it to study the “purposes, policies and practices of radio and television broadcasting to Cuba.” As noted by Senator Ernest Hollings in a letter to the Advisory Panel, “it was never our intent to have the Advisory Panel conduct solely a narrow, technical review of these programs.”24 In testimony before the Advisory Panel, Representative Robert Torricelli asserted that “Congress not only expected a report on the technical effectiveness of broadcasting to Cuba, but also an evaluation of the overall effectiveness of these two institutions as vehicles to promote democracy in Cuba.”25
Advisory Board
The Panel report had two recommendations regarding the Advisory Board for Cuba Broadcasting. First, the Panel recommended that the chairperson and the members of the Advisory Board be rotated every three years, and the USIA Director endorsed this recommendation in his response. USIA Director Duffey noted that there has not been significant turnover of the Board. He noted that under three Administration just 14 people have served on the nine-member Board, but the Director also pointed out that the terms of all the Board’s members will be up this year.
The second Panel recommendation regarding the Advisory Board was that it should be a consultative body not involved in day-to-day broadcasting operations or in the recruitment or promotion of personnel. The USIA Director supported this recommendation to limit the scope of the Advisory Board and noted that the Board already has a legislative mandate to work through appropriate channels. The legislation provides that the Board is to review the effectiveness of Radio and TV Marti and make recommendations to the President and to Director and Associate Director for Broadcasting of USIA.
Broadcast Standards
The Panel report made numerous recommendations to improve the broadcast standards of Radio and TV Marti. These included: clarifying editorial decision-making; broadcasting daily editorials; broadcasting corrections; working to balance broadcasts (with a view toward concentrating on news and information and adjusting the amount of programming devoted to the Cuban American community); changing the current practice of having the Office of Cuba Broadcasting select the members of External Review Panels and the material they select to review; producing video reports; and broadcasting news on satellite at prime time. The USIA Director’s report to Congress responded in detail about how the Office of Cuba Broadcasting is implementing the broadcast standard recommendations of the Advisory Panel (see Appendix).
Professional Standards for the Office of Cuba Broadcasting
The Panel made a recommendation to review the Office of Cuba Broadcasting’s personnel recruitment and supervision standards to ensure that appropriate professional standards are met consistently. In response, the USIA Director reported that the Bureau of Broadcasting was taking measures to ensure professional standards. Director Duffey pointed out that the measures being implemented originated from a 1993 review conducted by the USIA’s Office of Inspector General (OIG) that was released in May 1994.26
Future of TV Marti
The Panel concluded that TV Marti’s broadcasts are technically sound and contain essential information not otherwise available to the Cuban people. The Panel reported “Cuban jamming prevents those broadcasts from being received by any substantial number of Cubans,” and as a result, “TV Marti cannot now be considered cost-effective” by the usual economic criteria. Nevertheless, the Panel asserted that “the Cuban people have an ardent desire and a genuine need to receive the programming produced by TV Marti,” and therefore recommended that TV Marti be converted from the current VHF to UHF transmission. This would require funding, but would allow broadcasting throughout the day, and would be more difficult for the Cuban government to jam. While the Panel did acknowledge that many Cubans do not own TVs with UHF reception capability, more and more TVs in Cuba are coming from Japan, South Korea, Taiwan, China, and Europe. Therefore, future viewership would be expected to increase with UHF transmission.
The Panel suggested that eliminating TV Marti would send a message to the Cuban government and people that the United States is not committed to democracy and human rights promotion. Furthermore, the Panel asserted that in the event of a crisis or upheaval in Cuba’s future, it would be important to have TV Marti available as a news source. Research presented to the Panel indicated that at moments of severe crisis, people turn to television first. In the event of a crisis, if TV Marti were not already operating, it would take several months or more to begin operations.
In a dissenting view, Chairman of the Board for International Broadcasting, Daniel Mica, stated to the Advisory Panel “that TV Marti is an experiment that should be shelved for the time being,” but suggested that broadcasts to Cuba could be resumed in the future “when there is a greater chance for technical success, assuming such resumption is still warranted by U.S. foreign policy concerns.”27 Several other witnesses to the Advisory Panel, while favoring the concept of television broadcasting to Cuba, believe that the station should be shut down unless there are changes to increase viewership.
In his July 1994 response to the Advisory Panel report, USIA Director Duffy strongly supported TV Marti, maintaining that the best interests of the United States are being served by its continuation. The Director also maintained that television broadcasting to Cuba is technically sound and effective, and that it is consistently being received by a sufficient Cuban audience to warrant its continuation. In justifying his finding about a sufficient Cuban audience, Director Duffey cited a December 1993 USIA Office of Research survey of Cubans visiting the U.S. Interests Section in Havana. The survey showed that while 4 percent of the Cubans surveyed reported regularly watching the signal for more than five minutes, 38 percent reported attempting to tune in. According to Duffey, “TV Marti’s inability to reach larger audiences in Cuba is not the result of any deficiency on the part of TV Marti, but rather the political decision on the part of the Cuban regime to deny the Cuban people access to free news and information.”
Appendix. Advisory Panel
The Advisory Panel made 14 specific recommendations to which the USIA Director responded:28
(1) Down-size management–The Panel questioned the need to spend more than $1 million to compensate officials who supervise, but never become involved in the actual broadcasts. The Director stated that the Office of Cuba Broadcasting has proposed reducing management and production costs that will result in a $4 million saving by the end of FY1995. Supervisory positions are being reduced by 20 percent in Radio and TV Marti, he said.
(2) Review personnel management–The Panel recommended personnel recruitment standards be consistently met. Especially of concern to the Panel was that those in charge of news and programs be fluent in both Spanish and English. According to the Director, measures to improve personnel standards are currently underway.
(3) Clarify editorial decision-making–The Panel recommended that the Office of Cuba Broadcasting simplify its cumbersome editorial guidelines and provide for a single, official line of authority for editorial decisions. The Director stated that he has established a single line of authority for editorial decisionmaking.
(4) Broadcast daily editorials–The Panel encouraged the addition of editorials on both Radio and TV Marti, asserting that such editorials would help to build a sturdier wall between news and policy. The Director responded by saying that editorial decisions are currently made in a daily meeting in the Office of Cuba Broadcasting. Mr. Duffey stated he is reviewing the possibility of strengthening VOA’s editorial production on Cuba and U.S.-Latin American relations for use by the Office of Cuba Broadcasting.
(5) Broadcast corrections–The Panel urged daily corrections that would enhance the credibility of the broadcasts. The Director’s response stated that corrections will be broadcast as soon as possible after the error is discovered, usually within the same or next broadcast cycle.
(6) Balance programming–The Panel expressed the belief that a reduction of entertainment programming and Cuban-American news would enhance the balance of both Radio and TV Marti broadcasts. Director Duffey stated that Director of the Office of Cuba Broadcasting, Richard Lobo, already has introduced programming changes to achieve greater balance. The VOA Handbook establishes requirements regarding balanced reporting that will be applied to the Office of Cuba Broadcasting. He went on to say that in the past three years, Radio and TV Marti have increased the amount of news and informative programming, the proportion of news from and about Cuba, and participation in programs by Cubans living on the island.
(7) Modify external review procedures–The Panel disagreed with the current practice that the Office of Cuba Broadcasting selects the External Review Panels and the materials they review. The Director stated that the USIA is currently reviewing its process for program selection for the Radio Marti External Review Panel and is developing a plan of action to be completed by September 30, 1994 to ensure independence. The Director said that current methods for selection of External Review Panels were approved by the Bureau of Broadcasting and USIA, and satisfy criticism made by the General Accounting Office.
(8) Reduce live radio broadcasting–The Panel recommended that Radio Marti could reduce costs and editorial error without significantly limiting the information made available to listeners by reducing the current 24 hour schedule of live broadcasting to 18 hours. The Director corrected the statement that Radio Marti broadcasts live for 24 hours each day. He stated that live broadcasting is limited to seven hours a day with the exception of brief hourly newscasts from 5:00 a.m. to 2:15 a.m. the following day. The rest of the time consists of pre-recorded broadcasting.
(9) Convert TV Marti to UHF–The Panel asserted that TV Marti should convert to UHF transmission to allow for broadcasting during prime time and to increase the difficulty in jamming by the Cuban government. Researching this concept would require about one year, according to the Panel. The Director believed that more research on converting TV Marti to UHF is necessary before investing in it. If research concludes that transferring to UHF would make a significant positive difference in the effectiveness of TV Marti, the Director advised asking Congress for support at that time.
(10) Reduce TV Marti broadcasting during transition to UHF–Such a reduction in broadcasting would keep the TV in operation, but reduce costs while researching the transition to UHF. The Director responded by stating that if this recommendation was made for cost savings, the impact would be small. Currently TV Marti repeats a half hour newscast three times daily. The difference if changed to repeating a fifteen minute newscast four times daily would be negligible, he said. He went on to say that contrary to some perceptions, TV Marti broadcasts are almost exclusively news and information.
(11) Produce video reports–During the transition to UHF, TV Marti should explore the possibility of producing videotape documentaries and features for distribution in Cuba. Mr. Duffey stated that TV Marti’s Programs Department is currently producing and has produced several documentaries for broadcast on TV Marti. He cautions that the Cuban recipients of these tapes run a risk of prosecution under the Enemy Propaganda Act of the Cuban Government.
(12) Broadcast news at prime time–The Panel encouraged TV Marti to consider broadcasting its hour of newscast on satellite during prime time. The Director is currently exploring the possibility of this scheduling change with USIA’s Telecommunications Directorate.
(13) Rotate chairperson and members of the Advisory Board for Cuba Broadcasting–The Panel recommended that the chairperson and the members of the Advisory Board for Cuba Broadcasting be rotated every three years, as was originally intended in the legislation. The Director agreed with this recommendation, saying that there has not been significant turnover of the Board under the past three Administrations.
(14) Limit scope of the Advisory Board–The Panel expressed the belief that the Advisory Board should have consultative and not broadcasting functions, nor be involved in recruitment or promotion of personnel functions. The Director stated he expects the Board to follow its mandate and implement it through the appropriate channels. According to the Radio Broadcasting to Cuba legislation, the Advisory Board for Cuba Broadcasting “shall review the effectiveness of the activities carried out under the act and the Television Broadcasting to Cuba Act and shall make such recommendations to the President and the Broadcasting Board of Governors as it may consider necessary.”
Author Information
Mark P. Sullivan
Specialist in Latin American Affairs
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material.
_______________
Notes:
1 U.S. General Accounting Office. TV Marti Costs and Compliance with Broadcast Standards and International Agreements. May 1992. GAO/NSIAD-92-199.
2 Hockstader, Lee. “Miami Likes TV Marti; Cuba Can’t See It.” Washington Post, April 16, 1992; Rohter, Larry. “Miami’s Cuban Exiles May Lose TV Station.” New York Times, July 10, 1993.
3 For a discussion of U.S.-Cuban relations and current legislative action, see CRS Issue Brief 94005, Cuba: Issues for Congress, by Mark P. Sullivan.
4 The measure, which was passed by the Senate on September 13, 1983 (voice vote) and by the House on September 29 (302-109) was signed into law October 4, 1983. The Reagan Administration had first requested the creation of specialized radio broadcasting for Cuba in legislation introduced in 1981, but the final measure was approved only after nearly two years of intense debate and significant compromise. For further details, see: U.S. Congress. House. Committee on Foreign Affairs. Congress and Foreign Policy 1983. p. 55.
5 Government foreign broadcasting operations are divided into two basic types of services. Both provide news and information. “Surrogate” broadcasting services usually target countries where repressive governments prohibit the existence of a free and independent media. “General” broadcasting services tend to emphasize information, perspectives, policies and the culture of the broadcasting nation. Radio and TV Marti, Radio Free Europe/Radio Liberty are examples of surrogate broadcasting; Voice of America is an example of general broadcasting.
6 The Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (P.L. 103-236) requires that RFE/RL be privatized by December 31, 1999, and that after September 30, 1995 Government grants can be made to RFE/RL only if its governing board is the Board of Governors, not the current governing body, Board for International Broadcasting (BIB).
7 Parker, Laura. “Radio Marti Director Ousted as Exiles Discuss Returning to Cuba.” Washington Post. March 13, 1990. p. A3.
8 Report of the Advisory Panel on Radio Marti and TV Marti. Volume 2, Statements to the Panel, March 1994 [hereafter cited as Advisory Panel Report, Volume 2]. Statement of Ernesto Betancourt.
9 Parker, Laura. “Radio Marti Director Ousted as Exiles Discuss Returning to Cuba.” Washington Post. March 13, 1990. p. A3.
10 Price, Joyce. “Troika to Head Radio Marti after Director is Reassigned.” Washington Times. March 19, 1990. p. A5.
11 Advisory Panel Report, Volume 2. Statement of Ernesto Betancourt.
12 For example, see statement of Carlos Alberto Montaner in Advisory Panel Report, Volume 2.
13 U.S. General Accounting Office. TV Marti, Costs and Compliance with Broadcast Standards and International Agreements. May 1992. GAO/NSIAD-92-199.
14 Advisory Panel Report, Volume 2. Statement of J. Richard Planas.
15 Advisory Panel Report, Volume 2. Statement of Antonio Navarro.
16 Letter from Representative John Conyers, Jr., to USIA Director Joseph Duffey, June 7, 1994.
17 Television conversation with Representative Conyers’ staff, July 28, 1994.
18 U.S. Department of State. The Report of the President’s Task Force on U.S. Government International Broadcasting. December 1991. p. 15.
19 Advisory Panel Report, Volume 2. Statement of John Hughes, Chairman, The President’s Task Force on U.S. Government International Broadcasting.
20 As set forth in the U.S. Information and Educational Exchange Act, P.L. 80-402, the seven-member commission is appointed by the President, by and with the advice and consent of the Senate, to represent the public interest, to formulate and recommend policies and programs for USIA, and to appraise the effectiveness of USIA policies and programs.
21 U.S. Advisory Commission on Public Diplomacy. 1991 Report. p. 42.
22 U.S. Advisory Commission on Public Diplomacy. 1993 Report. pp. 36, 44.
23 Advisory Panel Report, Volume 2. Statement of Representative David E. Skaggs.
24 Advisory Panel Report, Volume 2. Letter of Senator Ernest Hollings to the Advisory Panel.
25 Advisory Panel Report, Volume 2. Testimony of Representative Robert G. Torricelli.
26 The OIG review examined allegations that 10 Radio Marti employees were unqualified for their positions or biased in favor of Cuban Marxists and Socialists, and an allegation that Radio Marti’s news director could not speak fluent English, as required for the position. With regard to the 10 employees, the OIG report determined that they were qualified, and pointed out that an External Review Panel had recently reported that Radio Marti programming was generally well presented and relevant to the Cuban audience. Nevertheless, the OIG found that the process of selecting broadcasts for review should be improved. With regard to the news director, the OIG verified the allegation that the news director could not speak fluent English and found that the news director’s appointments were inconsistent with the Office of Cuba Broadcasting’s excepted service personnel policies. Consequently, OIG recommended that written policies be established for all excepted service personnel actions, and that the news director’s appointments be reviewed.
27 Advisory Panel Report, Volume 2. Statement by Daniel A. Mica, Chairman of the Board for International Broadcasting.
28 Report of the Advisory Panel on Radio Marti and TV Marti, Volume 1, Findings and Conclusions, March 1994 [hereafter cited as Advisory Panel Report, Volume 1]; and USIA Director’s Response to the Report of the Advisory Panel on Radio Marti and TV Marti, July 8, 1994.
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Wed Sep 07, 2022 8:33 pm
New Mexico bars commissioner from office for insurrection: A state district court judge has disqualified a county commissioner from holding public office for engaging in the insurrection at the U.S. Capitol on Jan. 6, 2021.
by Associated Press
09/06/2022 04:06 PM EDT
Couy Griffin walks near federal court in Washington, June 17, 2022. | Gemunu Amarasinghe/AP Photo
SANTA FE, N.M. — A New Mexico state district court judge has disqualified county commissioner and Cowboys for Trump cofounder Couy Griffin from holding public office for engaging in the insurrection at the U.S. Capitol on Jan. 6, 2021.
State District Court Judge Francis Mathew issued a ruling Tuesday that permanently prohibits Griffin from holding or seeking local or federal office.
Griffin was previously convicted in federal court of a misdemeanor for entering Capitol grounds on Jan. 6, without going inside the building. He was sentenced to 14 days and given credit for time served.
The new ruling immediately removes Griffin from his position as a commissioner in Otero County in southern New Mexico.
“Mr. Griffin aided the insurrection even though he did not personally engage in violence,” Mathew wrote. “By joining the mob and trespassing on restricted Capitol grounds, Mr. Griffin contributed to delaying Congress’s election-certification proceedings.”
Griffin he was notified of his removal from office by Otero County staff, who prevented him from accessing his work computer and office space at a county building in Alamogordo.
Griffin, who served as his own legal counsel at a two-day bench trial in August, called the ruling a “total disgrace” that disenfranchises his constituents in Otero County.
“The actions that are being taken are, I believe, are perfect evidence of the tyranny that we’re right now living under,” Griffin said. “The left continues to speak about democracy being under attack, but is this democracy? Whenever you’re removed from office by the civil courts by the opinion of a liberal judge.”
The ruling arrives amid a flurry of similar lawsuits around the country seeking to punish politicians who took part in Jan. 6 under provisions of the 14th Amendment to the U.S. Constitution, which holds that anyone who has taken an oath to uphold the Constitution can be barred from office for engaging in insurrection or rebellion.
Ratified shortly after the Civil War, the provisions were meant in part to keep representatives who had fought for the Confederacy from returning to Congress.
At trial, Griffin invoked free speech guarantees in his defense and argued that removing him from office would cut against the will of the people and set a “dangerous precedent.” Elected in 2018, Griffin withstood a recall vote last year but isn’t running for reelection or other office in November.
Mathews wrote that Griffin’s arguments “disregard that the Constitution itself reflects the will of the people.”
Griffin “overlooks that his own insurrectionary conduct on January 6 sought to subvert the results of a free and fair election, which would have disenfranchised millions of voters.”
The lawsuit against Griffin was brought by three plaintiffs in New Mexico with support from the Washington-based Citizens for Responsibility and Ethics in Washington. A federal declined a recent request to take up the case.
Tuesday’s judgement is “a historic win for accountability for the January 6th insurrection and the efforts to disrupt the peaceful transfer of power in the United States,” Citizens for Responsibility and Ethics President Noah Bookbinder said in a statement.
The NAACP and progressive watchdog group Common Cause filed briefs in support of Griffin’s removal, citing not only Griffin’s involvement at the Capitol attack but also his recent refusal to help certify local results of New Mexico’s June 7 primary election.
Griffin, a Republican, forged a group of rodeo acquaintances in 2019 into the promotional group called Cowboys for Trump that staged horseback parades to spread President Donald Trump’s conservative message about gun rights, immigration controls and abortion restrictions.
by Associated Press
09/06/2022 04:06 PM EDT
Couy Griffin walks near federal court in Washington, June 17, 2022. | Gemunu Amarasinghe/AP Photo
SANTA FE, N.M. — A New Mexico state district court judge has disqualified county commissioner and Cowboys for Trump cofounder Couy Griffin from holding public office for engaging in the insurrection at the U.S. Capitol on Jan. 6, 2021.
State District Court Judge Francis Mathew issued a ruling Tuesday that permanently prohibits Griffin from holding or seeking local or federal office.
Griffin was previously convicted in federal court of a misdemeanor for entering Capitol grounds on Jan. 6, without going inside the building. He was sentenced to 14 days and given credit for time served.
The new ruling immediately removes Griffin from his position as a commissioner in Otero County in southern New Mexico.
“Mr. Griffin aided the insurrection even though he did not personally engage in violence,” Mathew wrote. “By joining the mob and trespassing on restricted Capitol grounds, Mr. Griffin contributed to delaying Congress’s election-certification proceedings.”
Griffin he was notified of his removal from office by Otero County staff, who prevented him from accessing his work computer and office space at a county building in Alamogordo.
Griffin, who served as his own legal counsel at a two-day bench trial in August, called the ruling a “total disgrace” that disenfranchises his constituents in Otero County.
“The actions that are being taken are, I believe, are perfect evidence of the tyranny that we’re right now living under,” Griffin said. “The left continues to speak about democracy being under attack, but is this democracy? Whenever you’re removed from office by the civil courts by the opinion of a liberal judge.”
The ruling arrives amid a flurry of similar lawsuits around the country seeking to punish politicians who took part in Jan. 6 under provisions of the 14th Amendment to the U.S. Constitution, which holds that anyone who has taken an oath to uphold the Constitution can be barred from office for engaging in insurrection or rebellion.
Ratified shortly after the Civil War, the provisions were meant in part to keep representatives who had fought for the Confederacy from returning to Congress.
At trial, Griffin invoked free speech guarantees in his defense and argued that removing him from office would cut against the will of the people and set a “dangerous precedent.” Elected in 2018, Griffin withstood a recall vote last year but isn’t running for reelection or other office in November.
Mathews wrote that Griffin’s arguments “disregard that the Constitution itself reflects the will of the people.”
Griffin “overlooks that his own insurrectionary conduct on January 6 sought to subvert the results of a free and fair election, which would have disenfranchised millions of voters.”
The lawsuit against Griffin was brought by three plaintiffs in New Mexico with support from the Washington-based Citizens for Responsibility and Ethics in Washington. A federal declined a recent request to take up the case.
Tuesday’s judgement is “a historic win for accountability for the January 6th insurrection and the efforts to disrupt the peaceful transfer of power in the United States,” Citizens for Responsibility and Ethics President Noah Bookbinder said in a statement.
The NAACP and progressive watchdog group Common Cause filed briefs in support of Griffin’s removal, citing not only Griffin’s involvement at the Capitol attack but also his recent refusal to help certify local results of New Mexico’s June 7 primary election.
Griffin, a Republican, forged a group of rodeo acquaintances in 2019 into the promotional group called Cowboys for Trump that staged horseback parades to spread President Donald Trump’s conservative message about gun rights, immigration controls and abortion restrictions.
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