Cannon is correct this is a motion in equity, not really under FRCrP 41(g). An injunction is sought and Trump has standing in that property under his custody and control was searched for and seized pursuant to a duly issued warrant, and what was specified in the warrant was seized. And is being held by DOJ for FBI use in a criminal investigation of Trump.
Two cases are written by Cannon as main authority relied upon by the court:
[UPDATE; as noted in an earlier post, the docket for the case is online with downloadable pdf item copies] Trump had stolen National Archive documents, obstructed their being surrendered to the Archive as owner, and in the course of doing that possibly privileged materials were possibly commingled, by Trump or agents for which he is responsible, with possibly personal items and things. Absent that commingling and forcing a warrant and seizure, he presumably could and should have separately held stuff arguably privileged or personal property of his, not due to go to the Archives. He did not segregate things nor show any exigent need for access to the papers. He stuck them in a storage room for over a year and kept only a few items in his office.
The equities do not favor theft (you can call it wrongful seizure and holding as against the owner). It is possible that consultations with aides and officials during his Presidency, and consultations with lawyers, might disclose criminality in an inclusive conspiratorial sense, a collective effort to transgress under criminal law, rather than non-criminal consultations, and documents evidencing such conduct would not be privileged.
The FBI via a team separate from investigators looking at facts possibly evidence of criminal conduct, separated out a handful of exempt stuff. Stuff Trump and aides commingled with Archive materials. Stuff being withheld from investigators.
Under the equities, that is care enough. The man should not have stolen records and commingled shit into the mix. If you do not do equity, you do not deserve equity.
It is that simple. Cannon wrote 24 pages, Marcy at EmptyWheel analyzed it all, with criticism of the legal reasoning; but all of that stripped of judge shopping etc. is irrelevant to the truth that Trump did not do equity and does not deserve any equitable remedy of any sort.
Cannon wrote:
DISCUSSION
I. Jurisdiction
As previewed, Plaintiff initiated this action with a hybrid motion that seeks independent review of the property seized from his residence on August 8, 2022, a temporary injunction on anyfurther review by the Government in the meantime, and ultimately the return of the seized property under Rule 41(g) of the Federal Rules of Criminal Procedure. Though somewhat convoluted, this filing is procedurally permissible7 and creates an action in equity. See Richey v. Smith, 515 F.2d 1239, 1245 (5th Cir. 1975) (“[A] motion [for return of property] prior to [a] criminal proceeding . . . is more properly considered simply a suit in equity rather than one under the Rules of Criminal Procedure.”); In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, 11 F.4th 1235, 1245 n.6 (11th Cir. 2021) (“[Rule 41] is the proper way to come before the court to seek an injunction regarding the government’s use of a filter team to review seized documents.”). In other words, to entertain Plaintiff’s requests, the Court first must decide to exercise its equitable jurisdiction, see United States v. Martinez, 241 F.3d 1329, 1330 (11th Cir. 2001), which “derives from the [Court’s] inherent authority” over its officers (including attorneys)and processes, see Hunsucker v. Phinney, 497 F.2d 29, 32 (5th Cir. 1974); [...] In general, Rule 41(g) proceedings are “rooted in equitable principles” and served by “flexibility in procedural approach.” [...] see Hunsucker, 497 F.2d at 32, and must be “exercised with caution and restraint,” [...] Mindful of its limited power in this domain, the Court endeavors to fulfill its obligations under the law with due care.
That is fine. She gets Richey and Hunsucker cited as authority. At that point, yes, an action in equity, and so balance the equities.
Is there any affidavit before the court other than the warrant affidavit, the one highly redacted then published in redacted form, which was held sufficient for the warrant to be issued? That would require reading more court papers, which readers can do if they care, but here it will be presumed none beyond the warrant affidavit were submitted.
It is clear the records were in the White House as Trump was departing, and he took them and held them at his residence in Florida and the Presidential Records law is clear and was acknowledged by his lawyers in dealings prior to the search and seizure. The documents should have been yielded by Trump to have gone to the Archives. He and his lawyers knew that.
Trump broke the law in doing otherwise, and held them and stalled to where a warrant was needed to get things out of his custody and control.
Worth Noting -- Appointment of a special master could have been chosen as a remedy to award Trump, without enjoining further investigation using the seized documents. Later in proceedings suppression motions would be available. Stalling the investigation was clearly an unneeded further step; while the special master also, really, was unjustified.
It is simple, yet Cannon weaseled around and the DOJ should appeal.
Media coverage, citing multiple legal opinions held by professors and other learned individuals, has been uniformly critical of what this Judge Cannon did and wrote. She was likely shopped by the Trump legal folks, was a Rubio appointment, a Federalist Socity member since 2005, and nominated to the bench by Trump. Questions attach to that history.
Beyond those items addressed to the Cannon decision,
Trump May Have Sold Classified Documents, Should Be 'Arrested': Kirschner
Trump Having 48 Empty 'Classified' Folders at Mar-a-Lago Raises Suspicion
It seems Cannon's objectivity and legal acumen took a hit.
_________UPDATE________
It is not that judges can sometimes be suspect of influence from outside of the four corners of papers presented, it is that when this case smells that way it is high profile so that regular people gain an education into dark corners of the judicial process.
On appeal, the DOJ should seek a reversl and not a remand, then Cannon's jurisdiction would end, since she's gained assignment, however that happened, only to hear this motion, nothing else.
Long term, things hanging fire, an appeal moving closer to early November helping the Democratic Party with appellant matters being of media concern, this cute step could blowback into Trump's future and his Party's November hopes.
Also, while Trump seems on the hook, how is the Republican Party helped the longer things drag on toward November 2024.
Garland has little choice but to seek an expedited appeal and a reversal. However long that drags out, it plays out. Unless judge shopping in Florida is so corrupt that a three-judge appellate panel gets picked all being Trump appointees, expect a per curium opinion reversing Cannon, tersely, as inadequately cognizant of prior law and processes. One not castigating her, but reversing her.
Andrew Weissmann has had an analysis published by Atlantic which all should read.
Cannon did what a Rubio selection favorable to the Florida Cuban exile community followed by a pro forma Trump forwarding on of the nomination would have us expect. If reversed, she's off the hook no longer owing anyone anything with the motion having closure, while a remand would remain a swamp with her centered in it. A temporary delay will harm nobody, and an appellate vetting will have more gravitas than a District Court decision drawing much negative commentary within the legal community. Had Cannon gone the other way, would the Trump team have appealed?
Garland paying out rope but pushing for a prompt time limit on the special master review and resumption of DOJ doing its legal duties could push high profile events through September, and into October, which is of little help to Trump's future. The Trump team would be expected to do dilatory filing with Cannon absent an expedited appeal due to injunctive relief being awarded, to keep their motion from a closure against them on that time frame, wanting things dragged on past election day. That's the guess here, as nobody has a fail-proof crystal ball.
Last, to perceive how soundly awful that Cannon thing is, Breitbart reported and it is noteworthy they could not find any law-pundit to put a reputation at stake by saying buttressing things in favor of what Cannon did and wrote. Not a one. A dry well.
At a guess the Trump motion was not more immediate because counsel had to arrange assurances of a suitably sized retainer up front before moving. As well as judge shopping taking a bit of time, if indeed that happened.
FURTHER: Readers might try checking https://fedsoc.org/ to see how/if/when those folks might decide the Trump security documents situation deserves comment after Cannon acted and wrote.