Thoughts on the Trump special master suit (Updated)

A couple quick thoughts on Donald Trump's attempt to appoint a special master to do something (I do not believe Trump's attorneys understand what a special master can do). A hearing on the motion is scheduled for later today.

• DOJ wanted to argue that Trump cannot make an FRCrP 41(g) motion for return of property because the government documents taken under the warrant do not belong to him (even if the search was unlawful). Trump replied that he has standing to contest the search (which he obviously does) but said nothing about a 41(g) motion. The problem is DOJ using "standing"--with its constitutional implications--to describe it. This is another example of the term confusing things. Everyone uses it as a synonym for "he cannot prevail on this issue under this law because he has no affected legal rights," but in a way that unnecessarily draws Article III into what should be a discussion of substantive merits or procedural rules.

• This thing is a procedural mess. Trump filed a new civil action that was neither a pleading nor motion, arguably in the wrong division of the SDFla, and without affecting service. Judge Aileen Cannon issued a minute order asking Trump to clarify what the hell this thing is (I warned my students to never do anything to be on the receiving end of such an order, although I doubt Trump's lawyers) care; he supplemented the papers, although barely and not in a way that offered a meritorious substantive argument or complied with procedural rules. Judge Cannon then indicated a preliminary inclination to grant the request and ordered expedited briefing. That brings us to today. By the FRCP, none of this should have happened. Trump initiated a new civil proceeding without filing a complaint, moved the court for relief without establishing jurisdiction (essentially asking the court to superintend the magistrate in a separate existing proceeding), and never served or obtained a waiver. But the judge did not care and is plowing ahead. In this Serious Trouble episode (around 20:4o), Ken White says "Sometimes, federal judges just get kind of fed-up with procedural niceties and just want to cut to the chase." Descriptively true, but it kind of undermines everything some of us do for a living. (I suppose the response to a student who tried to raise this point would be that judges are more likely to do this in a case involving the former President of the United States facing a federal indictment, but you are not likely to represent the former President of the United States, so you need to follow the rules).

• We begin discussing the jurisdiction of the Courts of Appeals in Fed Courts next Tuesday, which means we should begin discussing mandamus the following week. Which is good, because if Cannot gives Trump anything, the government is going to mandamus her, probably successfully. And the fact that the judge flouted procedure as she did should factor into the court of appeals reasoning on whether to grant the writ.

Updates: Reports on the hearing suggest she is inclined to appoint a special master to review all documents, along with Trump's team but not the government, including for executive privilege (which should not be in play here). She also seems inclined to enjoin DOJ from continuing to review the documents for purposes of a criminal investigation (while allowing ODNI review to continue). In other words, she is going to enjoin DOJ from investigating a crime in a case in which no complaint has been filed. If these reports prove true, it may suggest this is not a federal judge who wants to cut to the chase at the expense of procedural niceties but a judge who does not know what she is doing.

As to # 3, perhaps knowing how this is going, the government asked the judge to issue a formal injunction, which is immediately reviewable as of right. This avoids government having to satisfy the heightened requirements for mandamus (although I imagine they are satisfied here).