U.S. District Judge Aileen Cannon and the Supreme Court have already helped Donald Trump in his criminal cases. Now he’s using them to support his request for civil damages, too.
A lawyer for the former president is citing Cannon and the justices in a filing that serves as a precursor to a possible federal lawsuit stemming from the 2022 search of his Mar-a-Lago property and subsequent charges for alleged unlawful retention of national defense information and obstruction.
The filing may be best understood as a political document — claiming, as it does, “political persecution” against the GOP presidential nominee.
But it’s notable how it leans on Trump’s own judicial appointees to justify that persecution narrative — even if closer inspection reveals that their rulings might not support this civil effort, however much they have helped him in his criminal cases.
Cannon dismissed the classified documents case last month on the grounds that special counsel Jack Smith was unlawfully appointed and funded — a decision that Smith is challenging on appeal.
The former president also invokes the recent Supreme Court ruling granting broad presidential immunity from prosecution, arguing in support of his civil “malicious prosecution” claim that:
As former U.S. Court of Appeals Judge and now-Attorney General Merrick Garland should have foreseen, President Trump had immunity from prosecution for official acts. As such, given the Supreme Court’s immunity decision and Judge Cannon’s dismissal of the prosecution on grounds that the Special Counsel’s appointment violated the appointments clause and his office was funded through an improper appropriation, there was no constitutional basis for the search or the subsequent indictment.
That argument is a little difficult to follow.
Putting aside the relevance of Garland’s legal foresight, the Supreme Court broke new ground last month with a new (and vague) presidential immunity test. Whatever anyone might have guessed the court would do ahead of time, it wasn’t apparent until long after Mar-a-Lago was searched and Trump was charged. Plus, while the high court said that presidents get at least some immunity for official acts, that ruling came in the federal election interference case — not in the classified documents case, whose charges relate to Trump’s post-presidency conduct.
Cannon likewise broke new ground last month when she dismissed the classified documents case. But that ruling didn’t deal with the underlying merits of the prosecution or the court-approved search that Trump complains of in his civil filing. There’s also the fact that it’s a trial-level ruling currently on appeal. Even if it survives appeal, it’s still difficult to see how Cannon’s decision on Smith’s appointment and funding calls into question the Mar-a-Lago search, which predated Smith’s appointment.
Trump also cites Cannon and the immunity ruling in his civil “abuse of process” claim — his third argument, in addition to malicious prosecution and “intrusion upon seclusion” (essentially, an invasion of privacy claim). In making his abuse of process argument, Trump’s counsel writes that “the lack of appropriations, a lack of a constitutionally appropriate appointment, and the unconstitutional nature of prosecuting an immune former President reflect the misuse of the prosecutorial process for an inappropriate — that is, a political — end.” But again, even if the Supreme Court’s immunity ruling somehow affects the classified documents case, and even if Cannon’s dismissal is upheld on appeal, it’s unclear how these rulings — which came after Trump was searched and charged — signal legal abuse in retrospect. There’s more to say about this new civil filing, and it’s unclear if it will turn into a full lawsuit or what will come of it if it does. The reason that it doesn’t go straight into court is that this sort of legal action against the federal government, under the Federal Tort Claims Act, starts with filing a notice to the agency involved — here, the Department of Justice, which can respond within six months. Trump claims $15 million in compensatory damages for alleged harm from legal costs, and $100 million in punitive damages (though, perhaps importantly if this moves forward, courts have noted that punitive damages aren’t available in FTCA cases). Whatever the outcome of this development, if it does go to court, it could test the degree to which Trump’s luck in some of his criminal cases may extend to a civil case. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
Latest Post
Recommended
