Trump’s lawyers are arguing that he should be treated better than others
US President Donald Trump says there is "nothing wrong" with listening to foreign governments offering dirt on his political opponents. (AFP / SAUL LOEB)
November 22, 2022
Among the arguments before the 11th US Circuit Court of Appeals on Tuesday was that former President Donald Trump should be treated in a special way because he was the president.
The three-judge panel includes two appointees by Donald Trump: Judges Britt Grant and Andrew Brasher. The third, Chief Judge Bill Pryor, was confirmed under former President George W. Bush.
The proceedings didn't begin well, when the first question about Judge Aileen 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.
But it was the judges' question about Trump getting special treatment that they wanted to know more about.
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.
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.
At one point, former FBI counsel, Andrew Weissmann characterized Trump's lawyer as "flailing," and suggested that the Trump legal team probably "should have had an appellate lawyer argue this."
After about 20 minutes, Weissmann concluded, "Trusty is not setting out a valid legal theory in his oral argument. This is going south very fast."
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