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Maddow Blog | Why Donald Trump had such a terrible day in the courts

MSNBC 11/23/2022 Steve Benen

Donald Trump has received quite a bit of legal news lately, and none of it is good. It was less than a week ago, for example, that Attorney General Merrick Garland appointed a special counsel to oversee two ongoing criminal investigations into the Republican’s alleged misconduct. It coincides with a separate criminal probe in Georgia, and reports of prosecutorial interest in Trump’s hush-money scandal in New York.

Yesterday, meanwhile, the U.S. Supreme Court cleared the way for Congress to finally obtain the former president’s hidden tax returns, causing Trump to throw an online tantrum, lashing out at the justices.

But perhaps most discouraging of all for the Republican were the developments in an appellate courtroom in Atlanta. The New York Times reported:

In case anyone needs a refresher, it was two months ago when U.S. District Court Judge Aileen Cannon gave Trump and his lawyers effectively everything they wanted in the Mar-a-Lago scandal: The Trump-appointed jurist approved a request for a special master and blocked parts of the Justice Department’s ongoing investigation.

Among legal experts from the left, right and center, a consensus formed quickly: Cannon’s decision was ridiculous. Prominent legal voices used words like “nutty,” “preposterous” and “oblivious” when describing the Labor Day ruling. Neal Katyal, a former acting solicitor general, described the judge’s legal analysis as “terrible” and “awful,” before concluding: “Frankly, any of my first-year law students would have written a better opinion.”

On Sept. 21, a three-judge panel at the 11th Circuit Court of Appeals — including two Trump appointees — undid key elements of Cannon’s order.

Harvard law professor Lawrence Tribe said the 11th Circuit’s ruling read “a lot like a stern but polite reprimand of a child caught red-handed who needs to be read the riot act.”

The federal appeals court is now considering a related question: Was it a mistake to appoint the special master in the first place?

In theory, the former president and his team had reason to be pleased with the randomly assigned three-judge panel: The trio includes Chief Judge William Pryor, a prominent conservative appointed by George W. Bush, and Judges Andrew Brasher and Britt Grant, both of whom were appointed by Trump. (Grant and Brasher were also part of the panel that heard the related Mar-a-Lago case in September.)

But in practice, the jurists seemed wholly unimpressed during oral arguments. From the Times’ report:

A report from Talking Points Memo added Trump’s lawyer “presented his stew of rapidly changing, sometimes conflicting, always ephemeral legal arguments” to appeals court judges who “often reacted with incredulity.”

As for why this matters, the Justice Department isn’t able to bring charges in the Mar-a-Lago case unless and until federal investigators know what evidence they have and how they’re able to use it. If the 11th Circuit rules that a special master shouldn’t have been appointed in the first place, prosecutors will be able to move forward with their case without interference.

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