by Judge Aileen M. Cannon
Donald J. Trump, Plaintiff, v. United States of America, Defendant
9/5/22
THIS CAUSE comes before the Court upon Plaintiff’s Motion for Judicial Oversight and Additional Relief (the "Motion")...
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 ...
the Court finds resolution of the Motion sufficient and prudent on the present record....
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...
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...
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...
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]....
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 ...[Rule 41(g) allows movants, prior to the return of an indictment, to initiate standalone actions "in the district where [their] property was seized."] ...and creates an action in equity. ... In other words, to entertain Plaintiff’s requests, the Court first must decide to exercise its equitable jurisdiction... 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. ... In general, Rule 41(g) proceedings are "rooted in equitable principles" and served by "flexibility in procedural approach."...
Importantly, equitable jurisdiction is reserved for "exceptional" circumstances, see Hunsucker, 497 F.2d at 32, and must be "exercised with caution and restraint,"... Mindful of its limited power in this domain, the Court endeavors to fulfill its obligations under the law with due care....
the Court deems the exercise of equitable jurisdiction over this action to be warranted.... 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. ... Those factors, although mixed, ultimately counsel in favor of exercising 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 ... 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 ... 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....
deprived of potentially significant personal documents, which alone creates a real harm,... an unquantifiable potential harm by way of improper disclosure of sensitive information to the public.... 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. ... Plaintiff is at risk of suffering injury from the Government’s retention and potential use of privileged materials... Plaintiff has claimed injury from the threat of future prosecution and the serious, often indelible stigma associated therewith.... 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.... reputational harm of a decidedly different order of magnitude....
Plaintiff has persuasively argued that there is no alternative adequate remedy at law.... the Government might indefinitely retain the property without any opportunity for the movant to assert . . . his right to possession")..."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)....
these guideposts favor the careful exercise of equitable jurisdiction... the realm of equity "may properly be influenced by considerations of the public interests involved"...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.... considerations pertinent to a holistic equitable analysis, the scales tip decidedly in favor of exercising jurisdiction.... 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. ..
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.....
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"...
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)... under the Fourth Amendment, settled law permits him, as the owner of the premises searched, to object to the seizure as unreasonable ...
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."... 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."... 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.... 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 ... This is sufficient to satisfy the standing requirement for the Rule 41(g) request and the request for a special master....
a party has standing to seek review by a special master when at least some of the seized materials are privileged...
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.... That step calls for comprehensive review of the seized property....
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....
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.... 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 ... 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.")....
the value added by an outside reviewer in terms of, at a minimum, the appearance of fairness.... DOJ filter review teams... are not always perceived to be as impartial as special masters.... "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... 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. "...A commitment to the appearance of fairness is critical, now more than ever... 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. ...
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... In the Court’s estimation, this position arguably overstates the law. In Nixon v. Administrator of General Services, ... the Supreme Court expressly recognized that (1) former Presidents may assert claims of executive privilege... 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,... "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.")... 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. ... 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.... 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." ...
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."... a special master would be better suited than this Court to conduct the review.... Nor is the appointment of a special master unheard of in the context of potentially executive privileged material.... courts recognize that special masters uniquely promote "the interests and appearance of fairness and justice."... ("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....
the Court determines that a temporary injunction on the Government’s use of the seized materials for investigative purposes—...is appropriate and equitable to uphold the value of the special master review.... 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.... several circuit courts have remarked on a district court’s authority to fashion an equitable remedy[] when appropriate . . . .").... 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.... 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. ...
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....
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."... 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....
the Government contends that the timing of the Motion—filed two weeks after the subject seizure occurred—"militates against a finding of irreparable harm"...The Court disagrees.... courts have held that delays of two or three weeks are not sufficiently long to undercut a showing of irreparable harm.... On balance, the Court is not persuaded.... In view of... Plaintiff’s inability to know the extent of what was seized, the Court is satisfied that Plaintiff did not "slumber[] on [his] rights."...
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.... circumstances supports the ‘strong public interest’ in the integrity of the judicial system."... 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... 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."...
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 ... 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). .... 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....
it is hereby ORDERED AND ADJUDGED as follows:...
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...,
The Court RESERVES RULING on Plaintiff’s request for return of property pending further review.