High(er) Court Hijinks

This didn't end well

Trump’s lawyers are arguing that he should be treated better than others in docs case because he was president https://t.co/etgdjp4hEy

— Raw Story (@RawStory) November 22, 2022

The proceedings didn't begin well, when the first question about Judge Eileen Cannon’s order is “has there ever been a case awarding this kind of relief in absence of a showing of an illegal search?” As former ethics czar and impeachment lawyer Norm Eisen explained, "no there hasn’t been."

"Can you cite a single decision by a federal court, other than this one, where a court has exercised jurisdiction where there is no showing that the seizure is unlawful?" asked one of the judges.

Lawyers hear what non-lawyers don't:  that question is the ballgame.  Cannon never should have entertained this suit.  Game over.  The rest is simply window dressing.  But what a window:

Judge Grant asked whether anyone in the country, other than a former president, would ever be granted a special master’s intervention. The judges asked Trusty to set aside the fact that Trump is a former president, and explain how the panel could possibly allow the special treatment that no one else gets.

Chief Judge Pryor conveyed that he was similarly concerned that every criminal defendant could interfere before an indictment if Trump was given special treatment.

The Trump lawyer swore that he wasn't looking for special treatment for the former president, and then rambled about the context of the situation. Another judge noted that Trusty never answered their question.

Trusty proclaimed that every person has a Fourth Amendment right.

The judges asked, "so, there is no difference?"

Trusty claimed that they have concerns about the Presidential Records Act and executive privilege, both of which legal analysts have said are losing battles for the Trump team.

Chief Judge Pryor explained that since the PRA and privilege arguments were never made in the appeal, or in court, he's never heard about it before.

"We have to determine when it's proper for a district court to do this in the first place. Other than the fact that this involves a former president of the United States, everything else is indistinguishable," Pryor said.

Again:  that's back to where they started: should Cannon have allowed this suit in the first place?  If not, it's out the window (!) and game over for Trump.  No more special master, no more pleading to Cannon for relief.  No more interfering with the DOJ investigation. All out the door.  Even the failure to bring up PRA and privilege in the trial court so it could be in the appellate record (another gross failing of the lawyers):  all gone as if it never happened.  And Trump's rhetoric outside the court?  Useless in it:

Trump's lawyer Jim Trusty at one point characterized the Mar-a-Lago search as a "raid," a term that Trump has used since the FBI came in.

"Do you think 'raid' is the right term for the execution of a warrant?" Judge Grant asked. Trusty apologized to the judges for his phrasing.

Trusty is not setting out a valid legal theory in his oral argument. This is going south very fast.

— Andrew Weissmann 🌻 (@AWeissmann_) November 22, 2022

You can't present what you don't have.