Former Republican Officials, Including Top DOJ Officials And Former Federal Prosecutors, File Amicus Brief Supporting Government’s Appeal Of Special Master Ruling In Mar-a-Lago Documents Case
Last month’s court order by federal District Judge Aileen Cannon authorizing a special master in the Mar-a-Lago documents case “repeatedly granted the plaintiff in this case, former President Donald J. Trump, procedural rights and protections that are not afforded to other criminal defendants and subjects of criminal investigations,” according to an amicus brief filed in the 11th Circuit Court of Appeals in support of the Justice Department’s appeal.
“This special treatment of one private citizen by virtue of his former status runs contrary to well-established caselaw,” according to the brief. “But, even more important, the analysis employed by the district court is antithetical to the central principle in this country that everyone should be treated equally by the law. The district court’s order should be reversed.”
The relief that former President Trump received from the district court, according to the brief, “was extraordinary — including enjoining aspects of an ongoing criminal investigation — yet, the evidence and arguments he presented would fail to justify even much less intrusive relief. This stark disparity between the superficial and unsubstantiated grounds asserted and the extraordinary relief granted seriously undermines the appearance of fairness essential to the rule of law.”
The 11 amici filing the brief are former federal prosecutors and state and federal government officials who served in Republican Administrations, including former top Justice Department officials who served as Assistant, Deputy, and Acting Attorneys General, and U.S. Attorneys.
The amici collectively have decades of experience advising on matters involving the proper scope of executive power and executive privilege or prosecuting cases involving sensitive or classified materials.
The amicus brief was prepared by co-counsels, Paul, Weiss, Rifkind, Wharton & Garrison LLP; Ambassador Norman Eisen (ret.); and Democracy 21 President Fred Wertheimer.
In August, the FBI executed a court-authorized search warrant at former President Trump’s country club home at Mar-a-Lago and recovered more than 11,000 documents taken from the White House, including more than 100 classified, secret, or top-secret documents. On September 5, Judge Cannon granted the former President’s request for a special master and enjoined the Government from reviewing and using the seized materials in its ongoing criminal investigation, pending completion of the special master review.
This is the third brief filed in the case by the amici.
The first, calling former President Trump’s request for a special master “manifestly frivolous,” was filed in the district court on August 30. The second, supporting the Government’s request for a partial stay to allow it to have access to the classified documents seized at Mar-a-Lago, was filed in the 11th Circuit Court of Appeals on September 16. That partial stay was granted on September 20.
This amicus brief, filed late Friday in Donald J. Trump v. United States of America in the U.S. Court of Appeals for the 11th Circuit, sets forth three reasons why the Justice Department’s appeal should be granted and the special master decision overturned.
According to the amicus brief:
First, the district court improperly considered the plaintiff’s status as a former President in finding that the threat to him of future prosecution and risk to his reputation constituted irreparable injury. “In the decades of experience Amici collectively have in state and federal law enforcement, Amici have never observed a court treat the subject of a criminal investigation with such solicitude simply because the subject used to be a public official.”
The district court erred in considering former President Trump’s status in its evaluation and “abandoned the fundamental principle that no one is above the law.”
Second, the district court ignored the public’s interest in ensuring that the law is applied, and appears to be applied, consistently across cases.
“The district court’s extraordinary intervention on behalf of former President Trump threatens public confidence that the law will be applied fairly and equally to all criminal defendants or subjects of criminal investigations.”
Third, the district court’s appointment of a special master was made on the erroneous assumption that former President Trump may have a possessory interest in classified materials or a claim of executive privilege against the Justice Department in an ongoing criminal investigation.
“In doing so, the district court ignored clear precedent to the contrary and failed to adequately justify the extraordinary relief it granted. … Former President Trump cannot have a possessory interest in classified records, and the mere fact that he disputed the proposition in a legal filing did not, and cannot, overcome the settled law establishing it.”
The amici filing the brief are:
Donald B. Ayer served as Deputy Attorney General at the Justice Department (1989 to 1990), Principal Deputy Solicitor General of the United States (1986 to 1989); and U.S. Attorney for the Eastern District of California (1981 to 1986). He has argued 19 cases in the U.S. Supreme Court.
John B. Bellinger III served as the Legal Adviser for the State Department (2005 to 2009); Senior Associate Counsel to the President and Legal Adviser to the National Security Council (2001 to 2005); Counsel for National Security Matters in DOJ’s Criminal Division (1997 to 2001); Counsel to the Senate Select Committee on Intelligence (1996); General Counsel to the Commission on the Roles and Capabilities of the U.S. Intelligence Community (1995 to 1996); and Special Assistant to Director of Central Intelligence William Webster (1988 to 1991).
Gregory A. Brower served as Assistant Director for the Office of Congressional Affairs at the FBI, U.S. Attorney for the District of Nevada, and as both General Counsel and Inspector General at the U.S. Government Publishing Office. He served five regular sessions in the Nevada Legislature, including as Chair of the Senate Judiciary Committee (2015).
John J. Farmer Jr. served as an Assistant U.S. Attorney, New Jersey Attorney General, Senior Counsel to the 9/11 Commission, and Dean of Rutgers Law School, and now serves as Director of the Eagleton Institute of Politics. He also served on New Jersey’s Executive Commission on Ethical Standards, Advisory Committee on Judicial Conduct, and the State Commission of Investigations.
Stuart M. Gerson served as Acting Attorney General of the United States during the early Clinton Administration. He also served as President George H.W. Bush’s appointee as Assistant Attorney General for the Civil Division of the DOJ, as an advisor to several Presidents, and as an Assistant U.S. Attorney for the District of Columbia (1972 to 1975).
Peter D. Keisler served as Acting Attorney General of the United States during the George W. Bush Administration, as Assistant Attorney General for the DOJ’s Civil Division (2003 to 2007), as Principal Deputy Associate Attorney General and Acting Associate Attorney General from (2002 to 2003), and as Assistant and Associate Counsel to President Ronald Reagan in the Office of White House Counsel (1986 to 1988).
John M. Mitnick served as General Counsel of the Department of Homeland Security (2018 to 2019); Associate Counsel to the President (2005 to 2007); Deputy Counsel, Homeland Security Council (2004 to 2005); Associate General Counsel for Science and Technology, Department of Homeland Security (2003 to 2004); and Counsel to the Assistant Attorney General (Antitrust) at DOJ (2001 to 2002).
Alan Charles Raul served as Associate Counsel to President Ronald Reagan in the Office of White House Counsel (1986 to 1988); General Counsel of the Office of Management and Budget in the Executive Office of the President (1988 to 1989); General Counsel of the U.S. Department of Agriculture (1989 to 1993); and Vice Chairman of the White House (and, later, independent) Privacy and Civil Liberties Oversight Board (2006 to 2007; 2007 to 2008).
Olivia Troye served as Special Advisor to the Vice President for Homeland Security & Counterterrorism (2018 to 2020); Chief in the Department of Homeland Security (2016 to 2018); Senior Advisor to the Director of Intelligence & Counterintelligence for the Energy Department (2015 to 2016); Advisor to the Director of the National Counterterrorism Center (2007 to 2010); and Advisor in the Defense Department appointed by President George W. Bush (2002 to 2007).
William F. Weld served as the U.S. Attorney for Massachusetts (1981 to 1986), as Assistant U.S. Attorney General in charge of the DOJ’s Criminal Division (1986 to 1988), and as Governor of Massachusetts (1991 to 1997).
Christine Todd Whitman served as Governor of New Jersey (1994 to 2001) and as Administrator of the Environmental Protection Agency (2001 to 2003) during the George W. Bush Administration. She serves on a number of non-profit boards including the Board of Trustees’ Executive Committee of the Eisenhower Fellowships and as the Chair of the American Security Project.
(The amici joined this brief as individuals. Institutional affiliation is noted for informational purposes only.)
