1 00:00:00,000 --> 00:00:12,180 to the public. 2 00:00:06,040 --> 00:00:16,180 Good afternoon. So council 3 00:00:12,320 --> 00:00:16,880 are here for one Donald Trump 4 00:00:14,320 --> 00:00:19,720 versus United States. We're 5 00:00:16,320 --> 00:00:20,660 familiar with your briefs. 6 00:00:17,020 --> 00:00:21,360 We've read them. The 7 00:00:19,860 --> 00:00:22,060 authority cited in them. We've 8 00:00:20,780 --> 00:00:25,960 looked at the portions of the 9 00:00:21,480 --> 00:00:27,960 record that we need review. So 10 00:00:22,180 --> 00:00:29,940 you have limited time this 11 00:00:29,940 --> 00:00:34,840 morning. I'm going to ask you 12 00:00:30,640 --> 00:00:35,880 to be mindful of the red 13 00:00:33,980 --> 00:00:39,680 light. I want you to be 14 00:00:34,980 --> 00:00:43,680 mindful of the red light. It's 15 00:00:36,000 --> 00:00:46,320 time to stop. If you're 16 00:00:39,820 --> 00:00:48,320 finishing an answer to a 17 00:00:43,820 --> 00:00:49,160 question from the court. You 18 00:00:46,460 --> 00:00:54,000 can finish that answer without 19 00:00:48,460 --> 00:00:58,300 losing any rebuttal time. For 20 00:00:58,300 --> 00:01:09,380 the record, I'm going to ask 21 00:00:59,300 --> 00:01:09,980 you to read the record. Thank 22 00:01:03,300 --> 00:01:10,580 you, Your Honor. May it please 23 00:01:09,500 --> 00:01:11,180 the court. So upon Joshi for 24 00:01:10,100 --> 00:01:11,780 the government, the district 25 00:01:10,700 --> 00:01:14,380 court entered an injunction 26 00:01:11,300 --> 00:01:14,980 preventing the government from 27 00:01:11,920 --> 00:01:15,540 using documents that were law 28 00:01:14,520 --> 00:01:16,180 fully seized pursuant to a 29 00:01:15,120 --> 00:01:20,180 lawfully issued warrant in the 30 00:01:15,680 --> 00:01:22,180 course of its criminal 31 00:01:16,320 --> 00:01:22,780 investigation. And that 32 00:01:20,320 --> 00:01:24,380 extraordinary judicial intrusion 33 00:01:22,320 --> 00:01:26,220 into a core executive branch 34 00:01:22,920 --> 00:01:26,820 function should be reversed for 35 00:01:26,820 --> 00:01:30,800 the rest of the court. So 36 00:01:28,660 --> 00:01:31,460 that's the first case. The 37 00:01:29,260 --> 00:01:33,000 second case is the case to 38 00:01:30,920 --> 00:01:34,700 entertain plaintiff's motion in 39 00:01:31,600 --> 00:01:36,800 the first place, as I think the 40 00:01:33,120 --> 00:01:37,400 state panel in this case 41 00:01:34,820 --> 00:01:38,840 recognized. Second, we don't 42 00:01:36,940 --> 00:01:40,760 think plaintiff has 43 00:01:37,540 --> 00:01:41,400 demonstrated and can't 44 00:01:38,960 --> 00:01:42,840 demonstrate likelihood of 45 00:01:40,900 --> 00:01:44,840 success on the merits to 46 00:01:41,540 --> 00:01:45,500 warrant the extraordinary 47 00:01:42,960 --> 00:01:46,900 injunction that was entered. 48 00:01:44,980 --> 00:01:47,500 And third, at all events, 49 00:01:45,640 --> 00:01:48,940 plaintiff hasn't demonstrated 50 00:01:47,040 --> 00:01:49,580 and can't demonstrate any 51 00:01:47,640 --> 00:01:52,840 irreparable injury that would 52 00:01:49,080 --> 00:01:54,840 warrant the extraordinary 53 00:01:49,720 --> 00:01:56,780 injunction. Now I can first 54 00:01:56,780 --> 00:02:02,680 question. I'm sorry. I'm 55 00:01:58,980 --> 00:02:03,480 sorry. I'm sorry. I'm sorry. 56 00:02:00,620 --> 00:02:04,220 The state panel recognized 57 00:02:02,820 --> 00:02:06,720 precedent for exercising 58 00:02:03,620 --> 00:02:12,800 equitable jurisdiction in a 59 00:02:04,360 --> 00:02:14,800 pre indictment scenario where 60 00:02:06,860 --> 00:02:16,800 there's no showing. That the 61 00:02:12,920 --> 00:02:18,700 seizure itself was on law. 62 00:02:14,940 --> 00:02:20,800 We've been unable to find a 63 00:02:16,940 --> 00:02:21,440 case in which that that has 64 00:02:18,840 --> 00:02:22,080 happened, Your Honor. And I 65 00:02:20,940 --> 00:02:24,980 don't think plaintiff has 66 00:02:24,980 --> 00:02:30,580 demonstrated any irreparable 67 00:02:25,600 --> 00:02:31,180 injury. And I think that's 68 00:02:28,680 --> 00:02:31,780 because of federal criminal 69 00:02:30,720 --> 00:02:32,580 procedure. And so the natural 70 00:02:31,320 --> 00:02:36,580 place to raise that would be in 71 00:02:31,920 --> 00:02:38,580 some kind of criminal 72 00:02:32,720 --> 00:02:39,220 proceeding. And so this court, 73 00:02:36,720 --> 00:02:40,820 uh, the Fifth Circuit binding 74 00:02:38,720 --> 00:02:41,460 precedent that other courts as 75 00:02:39,360 --> 00:02:43,060 well, including the Eighth 76 00:02:40,960 --> 00:02:44,820 Circuit, the Ninth and others 77 00:02:41,600 --> 00:02:46,700 that we've cited in the briefs 78 00:02:43,200 --> 00:02:47,300 have made clear that when 79 00:02:44,960 --> 00:02:48,900 someone is seeking the return 80 00:02:46,820 --> 00:02:49,500 of property pre indictment, 81 00:02:47,420 --> 00:02:52,700 pre initiation of any kind of 82 00:02:49,040 --> 00:02:54,700 criminal process. The 83 00:02:54,700 --> 00:03:00,560 court has recognized that. 84 00:02:56,720 --> 00:03:01,200 It's supposed to be extraordinary. 85 00:02:59,760 --> 00:03:03,260 It's supposed to be rare. And 86 00:03:00,700 --> 00:03:05,140 for that reason, they have 87 00:03:01,340 --> 00:03:06,740 limited the availability and 88 00:03:03,400 --> 00:03:08,580 the exercise of discretion to 89 00:03:05,260 --> 00:03:10,140 cases where there is I think 90 00:03:06,880 --> 00:03:10,840 the case is called a callous 91 00:03:08,700 --> 00:03:11,440 disregard for rights. And I 92 00:03:10,280 --> 00:03:14,880 think this court and binding 93 00:03:10,980 --> 00:03:15,520 precedent has recognized that. 94 00:03:11,580 --> 00:03:18,380 Uh, I think the callous 95 00:03:15,020 --> 00:03:18,980 disregard for constitutional 96 00:03:15,640 --> 00:03:23,060 rights is as a little more of 97 00:03:23,060 --> 00:03:25,060 a 98 00:03:23,360 --> 00:03:29,400 legal issue. I think it could 99 00:03:27,220 --> 00:03:32,260 be debatable whether the 100 00:03:28,120 --> 00:03:32,900 seizure itself was unlawful. 101 00:03:29,540 --> 00:03:37,300 Callous disregard for 102 00:03:32,400 --> 00:03:39,440 constitutional rights is even. 103 00:03:33,040 --> 00:03:42,180 A higher burden. I would think 104 00:03:37,440 --> 00:03:42,780 that my question was, has there 105 00:03:39,580 --> 00:03:46,380 ever been an exercise of this 106 00:03:42,300 --> 00:03:47,080 kind of jurisdiction where 107 00:03:42,920 --> 00:03:50,980 there's no showing that the 108 00:03:46,520 --> 00:03:52,160 seizure itself was unlawful. 109 00:03:52,160 --> 00:03:58,400 And I think that's a very 110 00:03:54,260 --> 00:04:00,000 important question. I think 111 00:03:57,220 --> 00:04:00,600 perhaps no such case exists. 112 00:03:58,520 --> 00:04:03,360 Nor have we found a case in 113 00:04:00,120 --> 00:04:05,400 which this kind of anomalous 114 00:04:00,720 --> 00:04:07,000 jurisdiction was exercised 115 00:04:03,500 --> 00:04:07,600 where the plaintiff couldn't 116 00:04:05,540 --> 00:04:08,340 show a need for the return 117 00:04:07,140 --> 00:04:08,980 materials here. Plaintiff 118 00:04:07,740 --> 00:04:11,600 hasn't even attempted to show 119 00:04:08,460 --> 00:04:13,500 a need for the return 120 00:04:09,100 --> 00:04:15,480 materials. And at all events 121 00:04:11,740 --> 00:04:16,080 plaintiff now has all of the 122 00:04:13,640 --> 00:04:19,520 materials we see except for the 123 00:04:15,600 --> 00:04:20,080 classified documents now 124 00:04:16,220 --> 00:04:21,680 granted copies of them, but he 125 00:04:21,680 --> 00:04:24,660 has not been able to show a 126 00:04:22,320 --> 00:04:25,320 need for the return materials 127 00:04:23,880 --> 00:04:26,020 in the court. So I think that 128 00:04:24,800 --> 00:04:26,700 is a very important question 129 00:04:25,460 --> 00:04:27,660 that we've been able to 130 00:04:26,160 --> 00:04:29,560 formulate. 131 00:04:26,820 --> 00:04:30,160 I have a question about the 132 00:04:27,800 --> 00:04:33,560 callous disregard factor. 133 00:04:29,700 --> 00:04:35,560 We've said that that's an 134 00:04:30,300 --> 00:04:37,600 important factor. Is it 135 00:04:33,700 --> 00:04:38,100 dispositive? Must it always 136 00:04:35,700 --> 00:04:41,600 show to seek this anomalous 137 00:04:37,740 --> 00:04:43,600 jurisdiction a callous 138 00:04:38,240 --> 00:04:44,240 disregard of your rights? 139 00:04:41,740 --> 00:04:45,740 I think that's certainly what 140 00:04:43,740 --> 00:04:47,620 Chapman seems to suggest. And 141 00:04:44,380 --> 00:04:49,620 of course that's binding on 142 00:04:45,880 --> 00:04:51,580 the panel. Now we recognize 143 00:04:51,580 --> 00:04:56,620 that the plaintiff has not 144 00:04:53,060 --> 00:04:58,620 been able to show any of the 145 00:04:55,460 --> 00:04:59,260 factors under the plaintiff. 146 00:04:56,760 --> 00:05:00,860 In this case, I don't think the 147 00:04:58,760 --> 00:05:02,700 panel needs to reach that 148 00:04:59,400 --> 00:05:04,660 question because plaintiff 149 00:05:01,000 --> 00:05:05,200 hasn't been able to show any 150 00:05:02,840 --> 00:05:06,740 of the factors under Richie. 151 00:05:04,800 --> 00:05:08,600 He hasn't shown certainly with 152 00:05:05,340 --> 00:05:09,200 respect to the classified 153 00:05:06,860 --> 00:05:10,780 documents, which I think the 154 00:05:08,740 --> 00:05:12,540 state panel appropriately 155 00:05:09,340 --> 00:05:14,040 analyzed, but even with respect 156 00:05:10,900 --> 00:05:14,680 to the others, he either 157 00:05:12,680 --> 00:05:16,340 hasn't shown a personal 158 00:05:14,180 --> 00:05:18,140 interest in. But even if he 159 00:05:14,820 --> 00:05:19,720 has, he has not even attempted 160 00:05:16,480 --> 00:05:20,280 to demonstrate a need for their 161 00:05:20,280 --> 00:05:25,180 property. 162 00:05:21,020 --> 00:05:26,480 So I think that's a good 163 00:05:22,380 --> 00:05:27,220 question. I think that's a 164 00:05:25,320 --> 00:05:27,920 good point. I think that your 165 00:05:26,620 --> 00:05:31,020 opponent hasn't really made 166 00:05:27,360 --> 00:05:32,120 much of an effort to show 167 00:05:28,060 --> 00:05:34,160 specific need. But what level 168 00:05:31,160 --> 00:05:36,160 of need what level of 169 00:05:32,260 --> 00:05:38,200 specificity and what kind of 170 00:05:34,300 --> 00:05:38,900 things do you think a movement 171 00:05:36,300 --> 00:05:39,600 would need to show that used 172 00:05:38,340 --> 00:05:43,240 to show that they actually had 173 00:05:39,040 --> 00:05:44,340 a need for those documents. 174 00:05:39,740 --> 00:05:45,040 I think one of the examples 175 00:05:43,380 --> 00:05:48,840 that comes up in the case. 176 00:05:48,840 --> 00:05:54,840 The case where you have a 177 00:05:49,440 --> 00:05:55,540 business record, you have a 178 00:05:53,340 --> 00:05:56,240 property and it might be 179 00:05:54,980 --> 00:05:57,740 something like a business 180 00:05:55,680 --> 00:05:58,440 record, but they have an 181 00:05:56,380 --> 00:05:59,180 ongoing business concern. So 182 00:05:57,880 --> 00:06:00,820 they need the business records 183 00:05:58,580 --> 00:06:02,980 in order to keep their business 184 00:05:59,320 --> 00:06:04,980 going during the pendency of 185 00:06:00,940 --> 00:06:07,820 the investigation that might 186 00:06:03,120 --> 00:06:08,820 be even if lawfully seized 187 00:06:05,120 --> 00:06:10,820 that set that factor aside. 188 00:06:07,960 --> 00:06:12,820 But that might be a case where 189 00:06:08,960 --> 00:06:14,900 you could show a need. But of 190 00:06:10,960 --> 00:06:15,900 course, the 41 itself 191 00:06:12,960 --> 00:06:16,700 emphasizes that reasonableness 192 00:06:15,020 --> 00:06:18,800 is the touchstone. And if the 193 00:06:18,800 --> 00:06:22,520 government is able to make a 194 00:06:19,480 --> 00:06:23,120 reasonable accommodation for 195 00:06:21,540 --> 00:06:24,480 the need, then that's a 196 00:06:22,640 --> 00:06:26,420 reasonable accommodation. 197 00:06:23,240 --> 00:06:30,420 But 41 also recognizes and the 198 00:06:24,620 --> 00:06:32,420 government fully accepts that 199 00:06:26,560 --> 00:06:33,160 reasonable accommodation should 200 00:06:30,560 --> 00:06:34,720 be made. So if a plaintiff can 201 00:06:32,560 --> 00:06:35,360 show can make the showing of 202 00:06:33,300 --> 00:06:38,420 the need in addition to the 203 00:06:34,860 --> 00:06:39,060 other factors, the government 204 00:06:35,500 --> 00:06:40,600 should, of course, attempt to 205 00:06:38,560 --> 00:06:41,260 accommodate that while also 206 00:06:39,200 --> 00:06:42,760 making sure the government can 207 00:06:40,740 --> 00:06:44,740 use it in its investigation in 208 00:06:41,400 --> 00:06:48,600 the express text 41 says that. 209 00:06:48,600 --> 00:06:54,980 But what about adequate remedy? 210 00:06:52,240 --> 00:06:55,680 I think some of the cases and 211 00:06:54,380 --> 00:06:58,840 other circuits may go back and 212 00:06:55,100 --> 00:07:00,480 forth on whether, um, whether 213 00:06:55,800 --> 00:07:01,020 some motion to suppress an 214 00:06:58,980 --> 00:07:02,620 eventual criminal trials and 215 00:07:00,620 --> 00:07:03,220 adequate remedy. Do you think 216 00:07:01,140 --> 00:07:03,820 that that will always be an 217 00:07:02,740 --> 00:07:06,620 adequate remedy? Are there some 218 00:07:03,340 --> 00:07:08,620 situations where that might not 219 00:07:03,940 --> 00:07:10,520 be? I think in a situation like 220 00:07:06,760 --> 00:07:12,520 this, we have to consider it 221 00:07:08,760 --> 00:07:13,120 an adequate remedy because I 222 00:07:10,660 --> 00:07:14,720 gather that's what plaintiff 223 00:07:12,660 --> 00:07:16,720 want. And some of the filings 224 00:07:13,260 --> 00:07:18,360 he's made, perhaps not in this 225 00:07:18,360 --> 00:07:23,700 case, but he wants is not 226 00:07:20,200 --> 00:07:25,300 really the documents back. As I 227 00:07:22,000 --> 00:07:25,900 said, he already has them back. 228 00:07:23,840 --> 00:07:27,700 What he wants is to prevent the 229 00:07:25,440 --> 00:07:29,740 government from using the 230 00:07:26,040 --> 00:07:31,780 documents. And I'm not sure 231 00:07:27,840 --> 00:07:33,740 that that would ever be a valid 232 00:07:29,880 --> 00:07:35,740 justification. I think they're 233 00:07:31,900 --> 00:07:37,640 the proper way the proper remedy 234 00:07:33,880 --> 00:07:39,720 at law would be in the criminal 235 00:07:35,880 --> 00:07:41,780 proceeding to file a motion to 236 00:07:37,780 --> 00:07:43,820 suppress, uh, file a motion for 237 00:07:39,840 --> 00:07:44,420 use and, you know, derivative 238 00:07:41,920 --> 00:07:45,920 use suppression of the evidence 239 00:07:43,960 --> 00:07:46,520 through to the poisonous tree. 240 00:07:46,520 --> 00:07:50,520 And I think that's the 241 00:07:47,540 --> 00:07:52,520 appropriate way to address 242 00:07:48,640 --> 00:07:53,280 exactly the concern your honor 243 00:07:50,660 --> 00:07:56,460 raised. And so I think that 244 00:07:52,660 --> 00:07:58,500 would be adequate remedy. Now, 245 00:07:53,420 --> 00:07:59,500 I can see that again in a case 246 00:07:56,580 --> 00:08:00,220 where it was a third party who 247 00:07:58,620 --> 00:08:04,400 just needs documents back to 248 00:07:59,620 --> 00:08:05,060 like run his business or 249 00:08:00,360 --> 00:08:06,700 something like that. You know, 250 00:08:04,520 --> 00:08:08,500 then we would accept that that 251 00:08:05,200 --> 00:08:10,440 a rule 41 would be appropriate. 252 00:08:06,840 --> 00:08:11,040 But obviously, we're very, very 253 00:08:08,640 --> 00:08:14,440 far away from that here in this 254 00:08:14,440 --> 00:08:21,620 case. And I think that 255 00:08:17,460 --> 00:08:23,620 especially. Argued that that 256 00:08:18,460 --> 00:08:26,460 the proper decretal language 257 00:08:21,760 --> 00:08:28,500 would be that we reverse and 258 00:08:23,760 --> 00:08:29,160 remain with instructions to 259 00:08:26,600 --> 00:08:32,460 dismiss. It seemed to me that 260 00:08:28,640 --> 00:08:34,440 because this is an appeal from 261 00:08:29,300 --> 00:08:39,980 an for purposes of appellate 262 00:08:32,600 --> 00:08:41,980 jurisdiction. What we would do 263 00:08:41,980 --> 00:08:49,600 is we would have a 264 00:08:42,680 --> 00:08:51,100 jurisdiction over the 265 00:08:49,880 --> 00:08:51,720 background that there is a lack 266 00:08:50,520 --> 00:08:54,620 of equitable jurisdiction. But 267 00:08:51,240 --> 00:08:55,360 that that would be yet we don't 268 00:08:51,840 --> 00:08:59,060 we what we would have 269 00:08:54,760 --> 00:08:59,860 jurisdiction over is not the 270 00:08:55,480 --> 00:09:00,520 entire case. We have 271 00:08:59,180 --> 00:09:01,220 jurisdiction. If we have 272 00:08:59,980 --> 00:09:05,100 jurisdiction, right? If we 273 00:09:00,660 --> 00:09:06,300 haven't, it's over that order. 274 00:09:01,360 --> 00:09:07,000 Granting an injunction. Isn't 275 00:09:05,220 --> 00:09:09,700 that right? Technically, 276 00:09:09,700 --> 00:09:15,420 there's a lot of jurisdiction 277 00:09:10,340 --> 00:09:16,120 that we have. And we have 278 00:09:13,340 --> 00:09:16,620 jurisdiction. I actually 279 00:09:15,540 --> 00:09:19,420 disagree. Judge prior. So 280 00:09:16,240 --> 00:09:20,020 obviously you do have 281 00:09:16,740 --> 00:09:20,620 jurisdiction. That's common 282 00:09:19,560 --> 00:09:23,460 ground over the order of the 283 00:09:20,160 --> 00:09:25,460 September 5th order granting 284 00:09:20,760 --> 00:09:26,060 the injunction case, right? 285 00:09:23,580 --> 00:09:27,660 Well, so here's where I would 286 00:09:25,600 --> 00:09:28,260 point to moon off against 287 00:09:26,200 --> 00:09:31,460 Garen, a Supreme Court case 288 00:09:27,800 --> 00:09:32,060 that we cite in our brief in 289 00:09:28,400 --> 00:09:35,540 which the court expressly says 290 00:09:31,600 --> 00:09:36,200 that on an interlocutory appeal 291 00:09:32,200 --> 00:09:36,900 from an injunction, the appellate 292 00:09:35,660 --> 00:09:39,500 court does have jurisdiction 293 00:09:39,500 --> 00:09:44,900 over the case. And that's 294 00:09:40,060 --> 00:09:46,900 correct. And so the appellate 295 00:09:42,900 --> 00:09:48,800 court has the power to 296 00:09:45,000 --> 00:09:50,700 evaluate the motion to dismiss 297 00:09:47,000 --> 00:09:52,780 even though that ordinarily 298 00:09:48,900 --> 00:09:53,380 wouldn't be appealable and not 299 00:09:50,800 --> 00:09:54,940 only reverse the order under 300 00:09:52,880 --> 00:09:56,820 review, but we man with 301 00:09:53,480 --> 00:09:58,820 instructions to dismiss the 302 00:09:55,040 --> 00:10:00,820 case and really not reverse 303 00:09:56,920 --> 00:10:02,820 though. It's vacate, isn't it? 304 00:09:58,920 --> 00:10:04,820 Uh I suppose that's correct. 305 00:10:00,920 --> 00:10:06,620 Although I think ordinarily we 306 00:10:02,920 --> 00:10:07,220 vacate is exactly why you would 307 00:10:07,220 --> 00:10:12,220 have to do that. I mean, I 308 00:10:09,120 --> 00:10:14,200 think that's the order to make 309 00:10:09,660 --> 00:10:16,200 clear that you're not vacating 310 00:10:12,320 --> 00:10:16,900 for the purposes of like new 311 00:10:14,300 --> 00:10:17,660 factual findings or 312 00:10:16,300 --> 00:10:19,300 reevaluation of some factor 313 00:10:17,000 --> 00:10:20,040 reversing on the ground that 314 00:10:17,760 --> 00:10:20,740 because there's no 315 00:10:19,400 --> 00:10:22,740 jurisdiction, there's actually 316 00:10:20,140 --> 00:10:24,700 no possibility of there ever 317 00:10:20,840 --> 00:10:26,540 being a valid entry of an 318 00:10:22,840 --> 00:10:27,180 injunction. So I will look at 319 00:10:24,800 --> 00:10:27,840 that case and it would seem to 320 00:10:26,640 --> 00:10:30,740 me that if you're right, then 321 00:10:27,280 --> 00:10:34,420 what we're really talking about 322 00:10:27,980 --> 00:10:35,580 is. A middle position that is I 323 00:10:30,840 --> 00:10:36,580 was right about vacate, but 324 00:10:36,580 --> 00:10:42,120 if a district court lacks 325 00:10:37,240 --> 00:10:42,820 jurisdiction, that's what we 326 00:10:38,780 --> 00:10:45,780 do. We vacate and remain with 327 00:10:42,220 --> 00:10:46,420 instructions to dismiss, right? 328 00:10:42,920 --> 00:10:48,220 Fair enough. And I'm not going 329 00:10:45,880 --> 00:10:50,220 to find you too hard on it. If 330 00:10:46,520 --> 00:10:52,260 if if the language says is 331 00:10:48,320 --> 00:10:52,820 vacate and we man with 332 00:10:50,320 --> 00:10:54,420 instructions to dismiss the 333 00:10:52,360 --> 00:10:55,120 case, I think we'd be perfectly 334 00:10:52,920 --> 00:10:57,200 happy with that with that. And 335 00:10:54,520 --> 00:10:58,900 so what you're saying is we we 336 00:10:55,220 --> 00:11:00,640 in your view, if we decide that 337 00:10:57,300 --> 00:11:02,340 there was not equitable 338 00:10:59,000 --> 00:11:03,040 jurisdiction over this claim in 339 00:11:00,740 --> 00:11:04,740 the first place, we wouldn't 340 00:11:02,440 --> 00:11:06,340 need to go through any of the 341 00:11:06,340 --> 00:11:10,540 process. So I think that's 342 00:11:08,400 --> 00:11:11,540 what you're saying. If we 343 00:11:09,540 --> 00:11:13,140 decide that there was no 344 00:11:10,640 --> 00:11:13,880 jurisdiction over this case or 345 00:11:11,640 --> 00:11:15,680 anything like that, the 346 00:11:13,240 --> 00:11:16,380 dismissal of the lack of 347 00:11:13,980 --> 00:11:17,140 jurisdiction over the case as 348 00:11:15,780 --> 00:11:19,680 it would brought would resolve 349 00:11:16,480 --> 00:11:20,380 all the questions in your mind. 350 00:11:17,240 --> 00:11:21,920 Is that right? I think that's 351 00:11:19,780 --> 00:11:23,580 right, because plaintiff filed 352 00:11:20,480 --> 00:11:24,220 this extraordinary motion to 353 00:11:22,020 --> 00:11:25,860 kick off these proceedings. 354 00:11:23,680 --> 00:11:27,660 It's not even a complaint. It's 355 00:11:24,320 --> 00:11:29,660 just a motion for judicial 356 00:11:25,960 --> 00:11:31,660 oversight of an executive grant 357 00:11:27,760 --> 00:11:33,660 investigation. And if you find 358 00:11:29,760 --> 00:11:35,700 as urging you to that 359 00:11:35,700 --> 00:11:41,240 question, you can't just 360 00:11:37,540 --> 00:11:42,540 reject it. You can't just 361 00:11:39,740 --> 00:11:43,580 reject it. You can't just 362 00:11:41,340 --> 00:11:46,180 reject it. That's exactly so 363 00:11:42,640 --> 00:11:46,980 just to be clear than that. So 364 00:11:43,680 --> 00:11:47,580 that that line of of of 365 00:11:46,280 --> 00:11:51,220 reasoning avoids the 366 00:11:47,080 --> 00:11:53,180 supplemental jurisdiction 367 00:11:47,680 --> 00:11:54,980 issue entirely. I believe it 368 00:11:51,320 --> 00:11:56,620 does. Yes. But of course, as we 369 00:11:53,280 --> 00:11:57,260 point out in our brief, if you 370 00:11:55,080 --> 00:12:00,220 do have to reach that issue, we 371 00:11:56,720 --> 00:12:00,900 think this is clearly in 372 00:11:57,360 --> 00:12:02,500 extricably intertwined as I 373 00:12:00,320 --> 00:12:03,260 think the state panel 374 00:12:01,000 --> 00:12:03,900 recognize with respect to the 375 00:12:02,600 --> 00:12:04,560 classified documents. I think 376 00:12:04,560 --> 00:12:07,200 that's a very good point. 377 00:12:05,100 --> 00:12:09,700 Thank you. 378 00:12:05,700 --> 00:12:10,400 Thank you. 379 00:12:07,300 --> 00:12:12,440 So I'm wondering about the 380 00:12:09,800 --> 00:12:14,040 appointment of a special 381 00:12:10,500 --> 00:12:15,680 master from sort of the mind 382 00:12:12,540 --> 00:12:16,380 run of cases where a district 383 00:12:14,140 --> 00:12:17,980 court is evaluating a 384 00:12:15,780 --> 00:12:18,580 discovery dispute, something 385 00:12:16,480 --> 00:12:19,180 like that tells one side. Don't 386 00:12:18,080 --> 00:12:22,880 look at these documents until 387 00:12:18,680 --> 00:12:23,480 somebody else has a chance to 388 00:12:19,280 --> 00:12:26,460 review them. Um what 389 00:12:22,980 --> 00:12:28,460 distinguishes this case from 390 00:12:23,580 --> 00:12:29,520 that? The entry of an 391 00:12:26,560 --> 00:12:30,460 injunction, right? That that 392 00:12:28,560 --> 00:12:31,120 sounds like a formality, but 393 00:12:29,620 --> 00:12:32,820 it's actually a very real 394 00:12:32,820 --> 00:12:36,920 case. And I think that the 395 00:12:33,420 --> 00:12:38,820 injunction is something 396 00:12:35,120 --> 00:12:40,720 special. Uh the Supreme Court 397 00:12:37,020 --> 00:12:42,720 held recently in the Tiger 398 00:12:38,920 --> 00:12:43,300 case that the word injunction 399 00:12:40,820 --> 00:12:44,860 brings with it the old soil and 400 00:12:42,820 --> 00:12:46,700 it brings with it all the all 401 00:12:43,400 --> 00:12:47,300 the common law backdrop of what 402 00:12:44,960 --> 00:12:48,740 an injunction is. And so let 403 00:12:46,800 --> 00:12:50,860 me just give you just a 404 00:12:47,400 --> 00:12:51,460 hypothetical and just see if 405 00:12:48,840 --> 00:12:52,940 you see what this means. So 406 00:12:50,960 --> 00:12:53,500 let's say I'm a district court 407 00:12:51,560 --> 00:12:56,740 and I'm adjudicating a dispute 408 00:12:53,040 --> 00:12:57,340 between two parties. It's an 409 00:12:53,600 --> 00:13:00,740 intellectual property dispute. 410 00:12:56,840 --> 00:13:01,340 Okay, just a normal civil 411 00:12:57,440 --> 00:13:02,780 action. And there's a 412 00:13:02,780 --> 00:13:06,460 question that I have for you 413 00:13:03,420 --> 00:13:08,620 that I have a question that I 414 00:13:04,820 --> 00:13:09,320 have for you. I tell the 415 00:13:06,560 --> 00:13:10,020 defendant don't look at these 416 00:13:08,720 --> 00:13:13,700 documents. You were enjoying 417 00:13:09,420 --> 00:13:14,360 from looking at these 418 00:13:10,120 --> 00:13:15,600 documents until the third party 419 00:13:13,800 --> 00:13:16,300 special master that I've 420 00:13:14,460 --> 00:13:16,900 appointed can review these 421 00:13:15,700 --> 00:13:17,500 documents and determine 422 00:13:16,400 --> 00:13:20,100 whether you're supposed to 423 00:13:17,000 --> 00:13:20,740 have them at all. But that 424 00:13:17,600 --> 00:13:24,240 they're privileged. Is that an 425 00:13:20,200 --> 00:13:26,240 appealable order? If I might 426 00:13:20,840 --> 00:13:28,240 answer if an order is entered 427 00:13:24,340 --> 00:13:29,980 with an injunction and it uses 428 00:13:26,340 --> 00:13:30,640 that language, then yes, under 429 00:13:30,640 --> 00:13:35,620 the law. I'm not sure that 430 00:13:31,840 --> 00:13:36,320 that's an injunction. 431 00:13:33,080 --> 00:13:43,520 Thank you. You've saved 3 432 00:13:35,740 --> 00:13:44,220 minutes for a rebuttal. Mister 433 00:13:36,460 --> 00:13:44,920 trustee. 434 00:13:43,660 --> 00:13:48,560 That is my name is Jim trust 435 00:13:44,360 --> 00:13:52,460 represent the pleasure to 436 00:13:45,060 --> 00:13:53,200 meet you. Your as to the issue 437 00:13:48,700 --> 00:13:54,200 of equitable jurisdiction. I 438 00:13:52,600 --> 00:13:56,200 think some context is 439 00:13:53,340 --> 00:13:56,900 necessary. I think that some 440 00:13:54,340 --> 00:14:00,580 actual process here needs to 441 00:14:00,580 --> 00:14:06,520 be done. I'm not sure. 442 00:14:04,220 --> 00:14:10,420 I'm not sure. I'm not sure. 443 00:14:04,880 --> 00:14:14,360 Judge and where we are. 444 00:14:06,640 --> 00:14:15,060 You heard question for your 445 00:14:10,560 --> 00:14:18,960 adversary. Are you aware? Can 446 00:14:14,480 --> 00:14:22,060 you cite me a single decision 447 00:14:15,180 --> 00:14:24,060 by a federal court? Other than 448 00:14:19,100 --> 00:14:27,800 this one where a federal court 449 00:14:22,200 --> 00:14:28,500 has exercised equitable 450 00:14:28,500 --> 00:14:35,400 jurisdiction. I'm not sure 451 00:14:31,500 --> 00:14:36,100 that that's an allegation 452 00:14:32,540 --> 00:14:42,740 that the seizure itself was 453 00:14:35,540 --> 00:14:43,740 unlawful. 454 00:14:36,240 --> 00:14:45,880 Not in the context of an 455 00:14:42,880 --> 00:14:46,780 immediate. 456 00:14:43,880 --> 00:14:47,780 Fully formed motion that 457 00:14:46,020 --> 00:14:48,480 indicates that in fact, we 458 00:14:46,920 --> 00:14:49,080 know this to be an 459 00:14:47,920 --> 00:14:52,120 unconstitutional seizure. I 460 00:14:48,620 --> 00:14:52,820 agree with the court's premise 461 00:14:49,220 --> 00:14:55,860 that there's not case. I would 462 00:14:52,260 --> 00:14:56,560 start with the broader premise 463 00:14:56,560 --> 00:15:02,260 of the case. I think that 464 00:14:58,760 --> 00:15:04,300 there's a great of a 465 00:15:00,420 --> 00:15:04,900 presidential candidate home. 466 00:15:02,400 --> 00:15:06,600 So we have some initial 467 00:15:04,420 --> 00:15:08,160 context. Do you think that 468 00:15:05,020 --> 00:15:08,760 raid is the right term for 469 00:15:06,740 --> 00:15:10,440 execution of a warrant or 470 00:15:08,300 --> 00:15:11,100 execution of a warrant? That's 471 00:15:08,900 --> 00:15:14,340 fine. Your honor. I apologize 472 00:15:10,560 --> 00:15:18,280 for using a more loaded term. 473 00:15:11,240 --> 00:15:20,280 But what I would suggest is 474 00:15:14,480 --> 00:15:22,280 that Judge Cannon looked at 475 00:15:18,400 --> 00:15:22,880 the Ritchie factors and she 476 00:15:20,420 --> 00:15:24,480 ruled obviously that in three 477 00:15:22,420 --> 00:15:26,320 cases, I'm going to come back 478 00:15:26,320 --> 00:15:30,320 and say that I'm going to 479 00:15:28,380 --> 00:15:30,320 look at the 480 00:15:29,520 --> 00:15:32,280 case. I'm going to look at the 481 00:15:30,440 --> 00:15:34,120 case and she found that it 482 00:15:30,460 --> 00:15:36,220 wasn't satisfied in your brief 483 00:15:32,420 --> 00:15:37,220 doesn't even attempt to argue 484 00:15:34,260 --> 00:15:38,020 that it was satisfied. 485 00:15:36,360 --> 00:15:40,160 Understood. And what that 486 00:15:37,360 --> 00:15:40,760 reflects ultimately, your 487 00:15:38,160 --> 00:15:42,400 honor is we're in a position 488 00:15:40,300 --> 00:15:44,260 where we're in a process that 489 00:15:40,900 --> 00:15:46,240 this judge has created. It is 490 00:15:42,520 --> 00:15:48,240 not prejudging that relief 491 00:15:44,400 --> 00:15:50,140 will be available in the grand 492 00:15:46,360 --> 00:15:52,280 scheme of things under rule 41 493 00:15:48,360 --> 00:15:54,280 G under the Fourth Amendment. 494 00:15:50,280 --> 00:15:56,080 It is it is an initial moment 495 00:15:56,080 --> 00:16:01,520 that we're in a position where 496 00:15:58,060 --> 00:16:17,000 the 497 00:15:59,860 --> 00:16:17,000 consequence of this extraordinary 498 00:16:01,660 --> 00:16:19,000 kind of jurisdiction would be 499 00:16:17,140 --> 00:16:20,140 that the seizure itself is 500 00:16:17,140 --> 00:16:20,940 unlawful. And if you if you 501 00:16:19,140 --> 00:16:21,940 can't establish that, then 502 00:16:20,280 --> 00:16:22,640 what are we doing here? We are 503 00:16:21,080 --> 00:16:23,340 in the process of establishing 504 00:16:22,080 --> 00:16:24,040 that that's exactly what this 505 00:16:22,780 --> 00:16:24,740 judge has contemplated is not 506 00:16:23,480 --> 00:16:25,440 immediate protective pleading 507 00:16:25,440 --> 00:16:28,540 for. We're in a position where 508 00:16:26,180 --> 00:16:30,080 it's not a 509 00:16:26,740 --> 00:16:30,820 general warrant. We have a 510 00:16:28,680 --> 00:16:31,520 good perspective and we have 511 00:16:30,220 --> 00:16:34,520 good reason to think that 512 00:16:30,940 --> 00:16:35,280 there's now evidence of 513 00:16:31,640 --> 00:16:37,220 unlawful seizure. I want this 514 00:16:34,640 --> 00:16:37,860 being a general want I want 515 00:16:35,420 --> 00:16:40,720 this being something that 516 00:16:37,360 --> 00:16:41,420 violates the presidential 517 00:16:37,980 --> 00:16:45,160 record act possibly. But you 518 00:16:40,860 --> 00:16:45,800 didn't establish that it was a 519 00:16:41,560 --> 00:16:47,420 general war. But you're on the 520 00:16:45,300 --> 00:16:48,100 point is how can we establish 521 00:16:45,920 --> 00:16:49,760 these things without even 522 00:16:47,560 --> 00:16:50,400 having access to the documents 523 00:16:48,220 --> 00:16:53,640 at first? We're talking about a 524 00:16:53,640 --> 00:16:55,640 process of 525 00:16:54,040 --> 00:16:59,480 unlawful seizure. We're not 526 00:16:55,900 --> 00:17:00,180 able to establish a process 527 00:16:57,500 --> 00:17:00,980 of power to establish a 528 00:16:59,600 --> 00:17:03,680 process where we could fully 529 00:17:00,300 --> 00:17:05,620 explore it instead of filing 530 00:17:01,120 --> 00:17:07,520 on based motions, claiming 531 00:17:03,820 --> 00:17:08,120 constitutional violations. I 532 00:17:05,740 --> 00:17:09,820 said that to be the purpose, 533 00:17:07,640 --> 00:17:11,520 even the purpose that you all 534 00:17:08,240 --> 00:17:12,180 have articulated. You've asked 535 00:17:09,960 --> 00:17:13,960 for a special master to review 536 00:17:11,660 --> 00:17:15,820 the documents for privilege. 537 00:17:12,320 --> 00:17:16,520 That doesn't sound like an 538 00:17:14,080 --> 00:17:19,760 attempt to demonstrate that the 539 00:17:15,960 --> 00:17:21,660 seizure was unlawful. It is a 540 00:17:21,660 --> 00:17:29,200 matter of time. It's a matter 541 00:17:23,560 --> 00:17:29,800 of time. It's not enough to 542 00:17:26,800 --> 00:17:30,460 obtain a warrant. There's still 543 00:17:29,320 --> 00:17:32,200 a whole universe of potential 544 00:17:29,920 --> 00:17:34,640 Frank's type challenges to the 545 00:17:30,600 --> 00:17:35,540 obtaining of this warrant from 546 00:17:32,340 --> 00:17:37,300 the magistrate. So we start 547 00:17:34,760 --> 00:17:39,240 with. Yes, we exercise. There 548 00:17:35,660 --> 00:17:41,180 were 2900 documents that were 549 00:17:37,440 --> 00:17:41,800 taken, most of which 550 00:17:39,380 --> 00:17:43,520 incredibly personal 551 00:17:41,300 --> 00:17:45,380 documents, photographs, thank 552 00:17:41,940 --> 00:17:47,420 you, notes, birthday cards, 553 00:17:43,640 --> 00:17:49,040 golf shirts. We didn't know 554 00:17:45,520 --> 00:17:49,840 that at the time that we 555 00:17:47,540 --> 00:17:50,420 initially met with Judge 556 00:17:50,420 --> 00:17:53,420 McHale. We didn't know that 557 00:17:51,060 --> 00:17:54,060 we were going to be able to 558 00:17:51,860 --> 00:17:56,460 get a warrant. We didn't know 559 00:17:53,560 --> 00:17:57,260 what the purpose of this 560 00:17:54,200 --> 00:17:59,360 warrant. But we still know 561 00:17:56,600 --> 00:18:00,060 what's in the affidavit. So do 562 00:17:57,400 --> 00:18:03,540 you think it's rare for the 563 00:17:59,500 --> 00:18:05,540 target of a want to think that 564 00:18:00,200 --> 00:18:07,540 it's ever reaching? I don't 565 00:18:03,660 --> 00:18:08,340 think that the targets 566 00:18:05,660 --> 00:18:10,440 position was particularly at 567 00:18:07,680 --> 00:18:11,240 issue here. It's the attorneys 568 00:18:08,480 --> 00:18:14,340 assessing the conduct of the 569 00:18:10,580 --> 00:18:15,020 FBI and taking part in this 570 00:18:11,380 --> 00:18:15,720 unprecedented rate. I'm sorry, 571 00:18:14,480 --> 00:18:18,480 search warrant execution and 572 00:18:15,140 --> 00:18:19,180 the search warrant execution, 573 00:18:19,180 --> 00:18:24,620 which is the only way to be 574 00:18:20,960 --> 00:18:26,620 showing it was something that 575 00:18:22,720 --> 00:18:27,220 has been accompanied with 576 00:18:24,760 --> 00:18:28,800 public statements of 577 00:18:26,760 --> 00:18:29,400 transparency. The attorney 578 00:18:27,360 --> 00:18:30,960 general having unprecedented 579 00:18:28,920 --> 00:18:32,600 press conference to say I want 580 00:18:29,520 --> 00:18:36,500 to release the warrant and I 581 00:18:31,100 --> 00:18:37,100 want to release the inventory. 582 00:18:32,740 --> 00:18:40,700 But nothing else and our 583 00:18:36,640 --> 00:18:42,500 situation as the attorneys for 584 00:18:37,240 --> 00:18:43,100 the president saying, are we 585 00:18:40,840 --> 00:18:44,740 going to file some sort of 586 00:18:42,640 --> 00:18:46,380 protective rule 41 claim 587 00:18:43,240 --> 00:18:47,440 without actually having 588 00:18:44,880 --> 00:18:49,020 evidence developed? We're going 589 00:18:49,020 --> 00:18:52,920 to file a case that's going to 590 00:18:49,640 --> 00:18:53,620 be a case that's going to be 591 00:18:51,540 --> 00:18:56,420 a case that's taken part in a 592 00:18:53,040 --> 00:18:58,160 historical event. And what this 593 00:18:53,760 --> 00:18:59,860 judge decided in her use of 594 00:18:56,560 --> 00:19:00,520 discretion was that even in the 595 00:18:58,280 --> 00:19:01,220 absence of callous disregard 596 00:19:00,000 --> 00:19:04,500 that that did not completely 597 00:19:00,660 --> 00:19:07,500 control that was not a 598 00:19:01,360 --> 00:19:08,140 predicate to the to the 599 00:19:04,620 --> 00:19:11,260 important use in the limited 600 00:19:07,620 --> 00:19:11,940 use of this anomalous power. 601 00:19:08,260 --> 00:19:15,340 But it was wrong. I know our 602 00:19:11,400 --> 00:19:16,040 president was she allowed to 603 00:19:16,040 --> 00:19:24,960 take that type of judge's 604 00:19:17,420 --> 00:19:19,580 second with the 605 00:19:40,540 --> 00:19:44,520 You. 606 00:19:44,520 --> 00:19:49,320 says that in the context of equity, although we look at these four factors, even they are 607 00:19:49,320 --> 00:19:50,320 not exclusive. 608 00:19:50,320 --> 00:19:52,360 What do you make of Chapman? 609 00:19:52,360 --> 00:19:56,720 I think Chapman, I will say, Chapman uses the word foremost. 610 00:19:56,720 --> 00:20:03,240 It certainly gives some elevation to callous disregard, but it cites Hunsucker in saying 611 00:20:03,240 --> 00:20:04,240 that. 612 00:20:04,240 --> 00:20:06,800 It even cites page 34 of the Hunsucker opinion. 613 00:20:06,800 --> 00:20:11,160 It says this is where we get this notion from of the elevated stature of callous disregard. 614 00:20:11,160 --> 00:20:13,840 You go to page 34, it's not there. 615 00:20:13,840 --> 00:20:20,280 I'm not sure what was going on, how they kind of paraphrased foremost into citing something 616 00:20:20,280 --> 00:20:21,280 in Hunsucker that seems... 617 00:20:21,280 --> 00:20:23,280 Well, the concept of use is indispensable. 618 00:20:23,280 --> 00:20:24,680 Hunsucker refers to... 619 00:20:24,680 --> 00:20:29,400 I'm sorry, Chapman refers to the test as being indispensable. 620 00:20:29,400 --> 00:20:34,720 I think later after saying it was foremost, graduates indispensable, like he said. 621 00:20:34,720 --> 00:20:40,560 I think it's a misread of Ritchie and Hunsucker for Chapman to kind of elevate it to that 622 00:20:40,560 --> 00:20:41,560 point. 623 00:20:41,560 --> 00:20:42,560 I'm not suggesting... 624 00:20:42,560 --> 00:20:43,560 Does it matter? 625 00:20:43,560 --> 00:20:46,840 I mean, if it's our circuit president, it binds us. 626 00:20:46,840 --> 00:20:48,640 No, I understand what the court is saying. 627 00:20:48,640 --> 00:20:49,640 If the court has... 628 00:20:49,640 --> 00:20:55,160 But again, we're talking about an extreme situation with the exercise of limited equitable 629 00:20:55,160 --> 00:20:57,200 jurisdiction by Judge Cannon. 630 00:20:57,200 --> 00:21:04,480 I think the fact that Chapman overstates the law for whatever reason, either in error or 631 00:21:04,480 --> 00:21:09,360 trying to make a move towards a more restrictive regime when it comes to equitable jurisdiction, 632 00:21:09,360 --> 00:21:10,360 I don't know. 633 00:21:10,360 --> 00:21:15,640 But it's clearly misstating the law when it describes Hunsucker as standing for that proposition 634 00:21:15,640 --> 00:21:17,520 that it is a one and all. 635 00:21:17,520 --> 00:21:18,880 And there's still case law. 636 00:21:18,880 --> 00:21:24,200 There's no case that has ever said you can't consider other broader equitable concerns. 637 00:21:24,200 --> 00:21:28,560 And in fact, that's what this judge did on page 11 of her order. 638 00:21:28,560 --> 00:21:33,320 She rattles off seven or eight very genuine concerns about faith in the criminal justice 639 00:21:33,320 --> 00:21:34,320 system. 640 00:21:34,320 --> 00:21:35,320 And that's really... 641 00:21:35,320 --> 00:21:39,680 If you set aside, which I understand that you won't want to do, but if you do for the 642 00:21:39,680 --> 00:21:44,920 purposes of this question, set aside the fact that the target of the search warrant was 643 00:21:44,920 --> 00:21:46,240 a former president. 644 00:21:46,240 --> 00:21:53,040 Are there any arguments that would be different than any defendant who... 645 00:21:53,040 --> 00:21:59,720 Or any target of a warrant who wished to challenge a warrant before an indictment? 646 00:21:59,720 --> 00:22:07,360 Your Honor, what I would say is that we're not looking for special treatment for President 647 00:22:07,360 --> 00:22:08,360 Trump. 648 00:22:08,360 --> 00:22:12,800 I'm just realizing there is a context here where no president has been... 649 00:22:12,800 --> 00:22:16,360 I don't know that that's particularly responsive. 650 00:22:16,360 --> 00:22:25,440 The question was set aside the fact that the subject of the warrant is the president. 651 00:22:25,440 --> 00:22:31,840 What's to distinguish this from any other subject of a criminal investigation? 652 00:22:31,840 --> 00:22:36,320 Other subjects of criminal investigations have the exact same Fourth Amendment rights 653 00:22:36,320 --> 00:22:38,640 as executed through Rule 41. 654 00:22:38,640 --> 00:22:40,920 Your answer is there is no difference. 655 00:22:40,920 --> 00:22:41,920 Correct. 656 00:22:41,920 --> 00:22:48,880 But what I would indicate is Rule 41 is the enforcement mechanism for any civilian, any 657 00:22:48,880 --> 00:22:52,320 citizen's Fourth Amendment complaint or violations. 658 00:22:52,320 --> 00:22:58,480 Now, maybe the difference in this case is that we didn't come to the table and immediately 659 00:22:58,480 --> 00:23:03,840 announce that we have the following grounds for suppression. 660 00:23:03,840 --> 00:23:08,200 There's no real secret we've had concerns about whether to general warrant. 661 00:23:08,200 --> 00:23:12,080 There's no real secret that we have concerns about the Presidential Records Act and that 662 00:23:12,080 --> 00:23:13,080 there's executive privilege. 663 00:23:13,080 --> 00:23:16,920 That might be a secret to this record. 664 00:23:16,920 --> 00:23:23,000 I mean, I don't see where that argument or case has been made. 665 00:23:23,000 --> 00:23:25,600 So for our purposes, it sounds like a secret. 666 00:23:25,600 --> 00:23:32,240 Your Honor, what I would indicate, and again, I think that the briefing distorts the process 667 00:23:32,240 --> 00:23:33,800 a little bit. 668 00:23:33,800 --> 00:23:36,080 This is a judge who's giving us an opportunity. 669 00:23:36,080 --> 00:23:42,880 She is initially creating a carve out of limited equitable jurisdiction for us to explore whether 670 00:23:42,880 --> 00:23:44,600 or not there's a valid claim. 671 00:23:44,600 --> 00:23:46,960 The case could fizzle out in a couple of different ways. 672 00:23:46,960 --> 00:23:51,600 It could fizzle out with the court saying, I've seen the Rule 41 pleading and I'm no 673 00:23:51,600 --> 00:23:54,840 longer exercising equitable jurisdiction because you have no claim. 674 00:23:54,840 --> 00:23:58,800 It could fizzle out with attorneys looking at it and saying, we are no different than 675 00:23:58,800 --> 00:24:01,480 anybody else in the world and we can't come up with a basis. 676 00:24:01,480 --> 00:24:06,720 The problem is we have to determine when it's proper for a district court to do this in 677 00:24:06,720 --> 00:24:11,160 the first place, which is what we're looking at now. 678 00:24:11,160 --> 00:24:20,280 And the last question was one posed that makes clear that basically, other than the fact 679 00:24:20,280 --> 00:24:28,120 that this involves a former president, everything else about this is indistinguishable from 680 00:24:28,120 --> 00:24:31,520 any pre-indictment search warrant. 681 00:24:31,520 --> 00:24:39,160 And we've got to be concerned about the precedent that we would create that would allow any 682 00:24:39,160 --> 00:24:46,080 target of a federal criminal investigation to go into a district court and to have a 683 00:24:46,080 --> 00:24:53,320 district court entertain this kind of petition, exercise equitable jurisdiction and interfere 684 00:24:53,320 --> 00:24:59,040 with the executive branch's ongoing investigation. 685 00:24:59,040 --> 00:25:03,080 The greater context of this case, and again, it's not special treatment. 686 00:25:03,080 --> 00:25:05,880 It's just basic facts of where we are. 687 00:25:05,880 --> 00:25:10,880 This is a situation where a political rival has been subjected to a search warrant where 688 00:25:10,880 --> 00:25:14,160 thousands of personal materials have been taken. 689 00:25:14,160 --> 00:25:19,520 We can't ignore that in the context of equity, which considers certain things such as the 690 00:25:19,520 --> 00:25:23,240 impact on the community when it comes to their view of the criminal justice system. 691 00:25:23,240 --> 00:25:24,240 And again, it ignores. 692 00:25:24,240 --> 00:25:26,480 I understand as an endpoint, it's a concern. 693 00:25:26,480 --> 00:25:27,920 We don't want to open up floodgates. 694 00:25:27,920 --> 00:25:29,400 It's not just an endpoint. 695 00:25:29,400 --> 00:25:30,680 It's a beginning point. 696 00:25:30,680 --> 00:25:37,000 You know, and you've talked about all these other records and property that were seized. 697 00:25:37,000 --> 00:25:46,240 The problem is, you know, the search warrant was for classified documents and boxes and 698 00:25:46,240 --> 00:25:48,280 other items that are intermingled with that. 699 00:25:48,280 --> 00:25:56,400 I don't think it's necessarily the fault of the government if someone has intermingled 700 00:25:56,400 --> 00:26:00,080 classified documents in all kinds of other personal property. 701 00:26:00,080 --> 00:26:06,480 Yeah, actually, the warrant goes on to allow for authorization to search any materials 702 00:26:06,480 --> 00:26:10,200 in the vicinity of those commingled items. 703 00:26:10,200 --> 00:26:11,520 So this was carte blanche. 704 00:26:11,520 --> 00:26:18,000 This is why they took golf shirts and pictures of Celine Dion and things that were pre-presidential, 705 00:26:18,000 --> 00:26:19,680 things that were post-presidential. 706 00:26:19,680 --> 00:26:24,560 The reason they did that, from how we look at it at this point, is because they had carte 707 00:26:24,560 --> 00:26:27,560 blanche from a magistrate to do a general warrant. 708 00:26:27,560 --> 00:26:30,600 It required no real discretion in their seizures. 709 00:26:30,600 --> 00:26:34,640 So there is a viable initial Fourth Amendment concern. 710 00:26:34,640 --> 00:26:39,800 The reason that's not on the table is by design, which is this court said, let's go through 711 00:26:39,800 --> 00:26:40,800 the process. 712 00:26:40,800 --> 00:26:43,280 Let's identify documents that might have issues. 713 00:26:43,280 --> 00:26:47,000 Let's identify whether there are theories to pursue from the appellant side. 714 00:26:47,000 --> 00:26:52,800 Here's why I didn't see anything like that was in an argument from you all that this 715 00:26:52,800 --> 00:26:57,640 search was undertaken in a callous disregard of the target's rights. 716 00:26:57,640 --> 00:26:58,640 Right. 717 00:26:58,640 --> 00:27:03,160 As I've said, I understand we are kind of stuck with the record from September 5th, 718 00:27:03,160 --> 00:27:07,920 which was when the judge made a finding that there was not a callous disregard. 719 00:27:07,920 --> 00:27:10,120 My starting point is things have changed. 720 00:27:10,120 --> 00:27:11,120 You haven't changed. 721 00:27:11,120 --> 00:27:12,120 You haven't challenged it. 722 00:27:12,120 --> 00:27:15,600 We were not in a position to challenge it at that point. 723 00:27:15,600 --> 00:27:18,680 But you had made a record that would allow for a challenge for it. 724 00:27:18,680 --> 00:27:19,680 Right. 725 00:27:19,680 --> 00:27:24,480 And what this vehicle has done in extremely unusual circumstances, because I don't think 726 00:27:24,480 --> 00:27:29,440 that a ruling allowing the limited discretion of appointing a special master to sift through 727 00:27:29,440 --> 00:27:31,600 documents and entertain a rule 41 mission. 728 00:27:31,600 --> 00:27:35,320 Well, the issue here is the injunction on the government's use of the documents, right? 729 00:27:35,320 --> 00:27:39,880 It's not necessarily the special master appointment, but it's the fact that the government hasn't 730 00:27:39,880 --> 00:27:44,440 been enjoined from using the materials that it collected pursuant to a search warrant. 731 00:27:44,440 --> 00:27:50,240 And the injunction, frankly, is almost the most overblown part of the litigation, because 732 00:27:50,240 --> 00:27:54,680 from the government's side, when you just step back and think about this, they had 100 733 00:27:54,680 --> 00:27:55,680 or so classified documents. 734 00:27:55,680 --> 00:27:58,920 They indicated, we want to be able to continue our investigation. 735 00:27:58,920 --> 00:27:59,920 OK. 736 00:27:59,920 --> 00:28:01,280 That was allowed through the stay. 737 00:28:01,280 --> 00:28:04,760 So they lost very little time on the stay based on that. 738 00:28:04,760 --> 00:28:08,880 We're talking about whether there's somehow prejudice in building whatever case you're 739 00:28:08,880 --> 00:28:13,320 trying to build by not having access to the Celine Dion photos, the thank you notes, the 740 00:28:13,320 --> 00:28:14,320 other things. 741 00:28:14,320 --> 00:28:19,520 And it is not realistic for the government to complain that this has hobbled their ability 742 00:28:19,520 --> 00:28:20,520 to investigate. 743 00:28:20,520 --> 00:28:23,520 They've had months before the seizure, months after. 744 00:28:23,520 --> 00:28:26,920 They know what's in that collection of items that were seized. 745 00:28:26,920 --> 00:28:30,840 They've even just recently appointed a special prosecutor, which generally means it's not 746 00:28:30,840 --> 00:28:32,840 going to be resolved in the next couple of days. 747 00:28:32,840 --> 00:28:35,160 So the prejudice is so overstated. 748 00:28:35,160 --> 00:28:40,040 Now, it's not to say that you don't have jurisdiction to talk about the injunction, that you don't 749 00:28:40,040 --> 00:28:42,920 have the ability to even overturn the injunction. 750 00:28:42,920 --> 00:28:47,960 But there's literally no harm to the government from not being able to access those documents. 751 00:28:47,960 --> 00:28:52,800 And so if this court reaches a conclusion that the injunction, I'm sorry, I see I'm 752 00:28:52,800 --> 00:28:54,480 out of time, but if I can just finish the answer. 753 00:28:54,480 --> 00:28:56,320 You're answering a question from the court. 754 00:28:56,320 --> 00:28:57,320 Thank you. 755 00:28:57,320 --> 00:29:02,840 If the injunction is the heart of this court's involvement, then we're all going to be able 756 00:29:02,840 --> 00:29:03,840 to live with it. 757 00:29:03,840 --> 00:29:09,440 But what we're trying to prevent is the amputation of a thoughtful process based on some of the 758 00:29:09,440 --> 00:29:13,880 factors in which you which is not exclusive under the 11th Circuit and other factors are 759 00:29:13,880 --> 00:29:18,360 particularly articulated by this judge that allow for this incredibly unusual case to 760 00:29:18,360 --> 00:29:20,400 permit that limited moment. 761 00:29:20,400 --> 00:29:21,680 It may fall apart. 762 00:29:21,680 --> 00:29:23,520 She may reject jurisdiction at the end. 763 00:29:23,520 --> 00:29:30,320 The problem with all of that, though, is that you viewed the injunction as the most overblown 764 00:29:30,320 --> 00:29:32,360 part of this. 765 00:29:32,360 --> 00:29:39,520 But think of the extraordinary nature from our perspective of an injunction against the 766 00:29:39,520 --> 00:29:45,440 executive branch and a pre-indictment situation under the separation of powers. 767 00:29:45,440 --> 00:29:53,680 The judiciary doesn't interfere with those kinds of prosecutorial and investigatory decisions, 768 00:29:53,680 --> 00:29:54,680 right? 769 00:29:54,680 --> 00:30:01,200 I understand the whole nature of this kind of jurisdiction is it has to be extraordinary, 770 00:30:01,200 --> 00:30:03,440 which is why I was asking. 771 00:30:03,440 --> 00:30:08,120 Are you aware of any authority where it's ever exercised where there's not at least 772 00:30:08,120 --> 00:30:12,320 an initial showing that the seizure itself was unlawful? 773 00:30:12,320 --> 00:30:18,800 My answer to that, Your Honor, is simply this is an extraordinary case to start with. 774 00:30:18,800 --> 00:30:23,920 It is deep in the process of using the special master to resolve these issues with a hearing 775 00:30:23,920 --> 00:30:30,040 in 9 days and a scheduling deadline of filing any Rule 41 by the middle of December. 776 00:30:30,040 --> 00:30:36,280 That net effect is maybe 100 days of delay to the executive branch when it comes to the 777 00:30:36,280 --> 00:30:41,440 access of literally the 2,900 mostly personal types of documents. 778 00:30:41,440 --> 00:30:42,720 The harm is little. 779 00:30:42,720 --> 00:30:47,440 The hesitation is completely understandable in terms of creating precedent that allows 780 00:30:47,440 --> 00:30:51,760 for injunctive relief to freeze the government in its tracks. 781 00:30:51,760 --> 00:30:52,760 I understand that. 782 00:30:52,760 --> 00:30:57,320 I would just suggest that equity, you know, the good and the bad of equity is that it 783 00:30:57,320 --> 00:31:00,240 has flexibility to address the problems at the table. 784 00:31:00,240 --> 00:31:06,600 My final point on that is simply that we're in a position where we could not in good faith 785 00:31:06,600 --> 00:31:10,440 file all of the things that might ultimately be filed without developing a record. 786 00:31:10,440 --> 00:31:12,480 And that's what's happened since September 5th. 787 00:31:12,480 --> 00:31:13,480 And that's where we are. 788 00:31:13,480 --> 00:31:16,560 May I ask you a question about the timing? 789 00:31:16,560 --> 00:31:20,840 So you laid out a little bit about the timing leading up to this moment. 790 00:31:20,840 --> 00:31:25,720 What is going to happen going forward with the special master's review? 791 00:31:25,720 --> 00:31:32,520 And I guess to put a point on this, when would this appeal of the injunction be mooted? 792 00:31:32,520 --> 00:31:36,440 When could it be mooted by something that would happen in the underlying special master 793 00:31:36,440 --> 00:31:39,600 review or litigation in front of the judge? 794 00:31:39,600 --> 00:31:44,280 So the special master has summoned us to Brooklyn again on December 1st. 795 00:31:44,280 --> 00:31:49,160 And that is called a status conference, but that basically means a resolution of the remaining 796 00:31:49,160 --> 00:31:50,160 documents. 797 00:31:50,160 --> 00:31:51,160 We had about 2,900 documents. 798 00:31:51,160 --> 00:31:54,640 We're down to, I think, 930 where we disagree. 799 00:31:54,640 --> 00:32:00,320 The big swaths of that will be decided with a legal ruling rather than kind of a one-by-one 800 00:32:00,320 --> 00:32:02,040 look at the document. 801 00:32:02,040 --> 00:32:03,040 So I think that that- 802 00:32:03,040 --> 00:32:06,120 When you say disagree, where you disagree about what? 803 00:32:06,120 --> 00:32:10,080 Whether or not executive privilege applies, whether or not attorney client applies on 804 00:32:10,080 --> 00:32:13,880 one document, whether something can be deemed personal or presidential. 805 00:32:13,880 --> 00:32:19,000 And I understand some of that doesn't affect trial usage, but some of it will affect access 806 00:32:19,000 --> 00:32:21,080 by the trial team. 807 00:32:21,080 --> 00:32:26,720 The judge, Judge Cannon set a tight deadline for Judge Deary to make reports and recommendations 808 00:32:26,720 --> 00:32:28,760 by December 16th. 809 00:32:28,760 --> 00:32:33,240 So my understanding is right around late December is when you'd have resolution of all these 810 00:32:33,240 --> 00:32:34,240 documents. 811 00:32:34,240 --> 00:32:35,240 I hope that answers Judge Brasher's question. 812 00:32:35,240 --> 00:32:36,240 Thank you. 813 00:32:36,240 --> 00:32:39,240 So if there's no other questions, I'll step down. 814 00:32:39,240 --> 00:32:40,240 Okay. 815 00:32:40,240 --> 00:32:41,240 Thank you. 816 00:32:41,240 --> 00:32:42,240 Roberto? 817 00:32:42,240 --> 00:32:43,240 Thank you, Your Honor. 818 00:32:43,240 --> 00:32:52,520 Just a few very quick points. 819 00:32:52,520 --> 00:32:58,840 First as to the timeline and delay, I just want to make clear that yes, Judge Deary should 820 00:32:58,840 --> 00:33:02,440 be issuing his final recommendation in the middle of next month. 821 00:33:02,440 --> 00:33:06,880 But of course then parties will lodge objections before the district court. 822 00:33:06,880 --> 00:33:08,720 Presumably there'll be more briefing on that. 823 00:33:08,720 --> 00:33:10,680 You know, perhaps an argument, then a decision. 824 00:33:10,680 --> 00:33:14,680 And then of course I assume the agreed party would have a strong incentive to appeal to 825 00:33:14,680 --> 00:33:16,760 this court and then we'll be right back here. 826 00:33:16,760 --> 00:33:18,440 But that could take many, many months. 827 00:33:18,440 --> 00:33:23,280 And I can't do better than Justice Frankfurter in Cobbledick in which he said, you know, 828 00:33:23,280 --> 00:33:25,800 delay is fatal to the vindication of the criminal law. 829 00:33:25,800 --> 00:33:29,760 And I think that applies in spades over here. 830 00:33:29,760 --> 00:33:33,440 As far as the irreparable injury from the injunction, remember, will on an appeal from 831 00:33:33,440 --> 00:33:36,040 a PI granted in plaintiff's favor. 832 00:33:36,040 --> 00:33:39,800 And so it's really, it was plaintiffs willing to show irreparable injury and he has still 833 00:33:39,800 --> 00:33:45,160 yet to show exactly what injury he suffers from the lack of return of the documents. 834 00:33:45,160 --> 00:33:49,760 And as I keep emphasizing, he's had the documents or at least copies of all of them returned 835 00:33:49,760 --> 00:33:52,600 to him except for the classified ones, of course. 836 00:33:52,600 --> 00:33:57,640 What do you say about the argument that your friend on the other side of the case just 837 00:33:57,640 --> 00:34:00,800 made about this being a general warrant? 838 00:34:00,800 --> 00:34:03,120 I couldn't disagree more. 839 00:34:03,120 --> 00:34:07,720 I know plaintiff emphasizes that he just wants judicial oversight of this. 840 00:34:07,720 --> 00:34:11,360 But remember, we've had judicial oversight and we've had exactly the judicial oversight 841 00:34:11,360 --> 00:34:15,480 that the Fourth Amendment and the Supreme Court have called for, which is we have a 842 00:34:15,480 --> 00:34:21,240 neutral magistrate judge in Article 3 who reviewed the affidavit and then issued a search 843 00:34:21,240 --> 00:34:22,400 warrant based on that. 844 00:34:22,400 --> 00:34:26,680 The search warrant described the places to be searched with particularity, the office 845 00:34:26,680 --> 00:34:27,800 and the storage room. 846 00:34:27,800 --> 00:34:30,760 It described the items to be seized with particularity. 847 00:34:30,760 --> 00:34:32,920 And those are exactly the items that we seized. 848 00:34:32,920 --> 00:34:37,840 The detailed property inventory is in the record, document 116-1. 849 00:34:37,840 --> 00:34:44,200 It shows 33 boxes or items that were taken, seven from the office, 26 from the storage 850 00:34:44,200 --> 00:34:45,200 room. 851 00:34:45,200 --> 00:34:48,400 And that's exactly what we seized. 852 00:34:48,400 --> 00:34:53,360 And I just think to me, I haven't had as much familiarity with the case as my colleagues 853 00:34:53,360 --> 00:34:56,400 here, but it seemed to me that that was also a new argument. 854 00:34:56,400 --> 00:34:59,160 Yes, I think that's exactly right. 855 00:34:59,160 --> 00:35:02,600 And that was the second point I was going to mention is this really has been shifting 856 00:35:02,600 --> 00:35:03,680 sands of the argument. 857 00:35:03,680 --> 00:35:08,440 I think before Judge Cannon, when the motion was filed, the initial claim was, well, attorney-client 858 00:35:08,440 --> 00:35:10,720 privilege in all the cases. 859 00:35:10,720 --> 00:35:13,480 And that's what Judge Cannon described, attorney-client privilege. 860 00:35:13,480 --> 00:35:17,640 And then executive privilege was introduced, even though I'm not sure why that would preclude 861 00:35:17,640 --> 00:35:22,640 our use of the executive branch's own use of the documents in an investigation. 862 00:35:22,640 --> 00:35:28,920 And then before the Supreme Court, plaintiff then described the core of the dispute is 863 00:35:28,920 --> 00:35:32,840 what he told the Supreme Court was whether the classified documents had been declassified. 864 00:35:32,840 --> 00:35:37,000 Then in this court, in his brief on appeal, for the first time we see this big dispute 865 00:35:37,000 --> 00:35:41,360 over the PRA, whether it's presidential or personal, which hadn't been raised before. 866 00:35:41,360 --> 00:35:45,520 And now today at argument, I hear about a France hearing, which is the first time I've 867 00:35:45,520 --> 00:35:47,400 heard it in these appellate papers anyway. 868 00:35:47,400 --> 00:35:54,720 So I think in general, this just sort of emphasizes how anomalous and extraordinary what the district 869 00:35:54,720 --> 00:35:56,480 court did here was. 870 00:35:56,480 --> 00:36:01,400 And I heard Mr. Trustee agree that there was no difference between this and other defendants. 871 00:36:01,400 --> 00:36:05,560 And I think that just emphasizes how the anomalous could become commonplace, and we think the 872 00:36:05,560 --> 00:36:06,560 court should reverse. 873 00:36:06,560 --> 00:36:07,560 Thank you. 874 00:36:07,560 --> 00:36:13,180 We are adjourned, as well argued by both sides, and very helpful. 875 00:36:13,180 --> 00:36:14,180 Thank you. 876 00:36:14,180 --> 00:36:30,720 Now, argue.