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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13005
____________________
DONALD J. TRUMP,
Plaintiff-Appellee,
versus
UNITED STATES OF AMERICA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:22-cv-81294-AMC
____________________
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2 Opinion of the Court 22-13005
Before WILLIAM PRYOR, Chief Judge, GRANT, and BRASHER, Circuit
Judges.
PER CURIAM:
This appeal requires us to consider whether the district
court had jurisdiction to block the United States from using
lawfully seized records in a criminal investigation. The answer is
no.
Former President Donald J. Trump brought a civil action
seeking an injunction against the government after it executed a
search warrant at his Mar-a-Lago residence. He argues that a court-
mandated special master review process is necessary because the
government’s Privilege Review Team protocols were inadequate,
because various seized documents are protected by executive or
attorney-client privilege, because he could have declassified
documents or designated them as personal rather than presidential
records, and—if all that fails—because the government’s appeal
was procedurally deficient. The government disagrees with each
contention.
These disputes ignore one fundamental question—whether
the district court had the power to hear the case. After all: “Federal
courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute, which is not to be
expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co.
of Am.,
511 U.S. 375, 377 (1994) (citation omitted).
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22-13005 Opinion of the Court 3
This case was such an expansion. Exercises of equitable
jurisdiction—which the district court invoked here—should be
“exceptional” and “anomalous.” Hunsucker v. Phinney,
497 F.2d
29, 32 (5th Cir. 1974). 1 Our precedents have limited this
jurisdiction with a four-factor test. Richey v. Smith,
515 F.2d 1239,
1243–44 (5th Cir. 1975). Plaintiff’s jurisdictional arguments fail all
four factors.
In considering these arguments, we are faced with a choice:
apply our usual test; drastically expand the availability of equitable
jurisdiction for every subject of a search warrant; or carve out an
unprecedented exception in our law for former presidents. We
choose the first option. So the case must be dismissed.
I.
As Plaintiff’s presidential term drew to a close in January
2021, movers transferred documents from the White House to his
personal residence, a South Florida resort and club known as Mar-
a-Lago. Over the course of that year and into the next, and
consistent with its responsibilities under the Presidential Records
Act,
44 U.S.C. §§ 2201–2209, the National Archives and Records
Administration sought to obtain missing presidential records that
its officials believed were in Plaintiff’s possession.
1 See Bonner v. City of Prichard,
661 F.2d 1206 (11th Cir. 1981) (en banc)
(adopting as binding precedent all published cases of the former Fifth Circuit
decided prior to the close of business on September 30, 1981).
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4 Opinion of the Court 22-13005
The government first sought the voluntary return of the
records. In January 2022, after months of discussions, Plaintiff
transferred fifteen boxes of documents to the National Archives.
Inside were “newspapers, magazines, printed news articles, photos,
miscellaneous print-outs, notes, presidential correspondence,
personal and post-presidential records, and a lot of classified
records.” Affidavit in Support of an Application Under Rule 41 for
a Warrant to Search and Seize ¶ 24, In re Sealed Search Warrant,
No. 22-mj-08332 (S.D. Fla. Sept. 9, 2022) (“Warrant Affidavit”)
(quotation omitted).
The Department of Justice was alerted about the classified
materials in February 2022.
Id. It then sought access to the fifteen
boxes so that the “FBI and others in the Intelligence Community”
could examine them to assess “important national security
interests,” including “the potential damage resulting from the
apparent manner in which these materials were stored.” The
National Archives later advised Plaintiff that it planned to provide
the FBI access to the records in roughly one week. When he
requested a delay of up to eleven days, the National Archives
agreed.
When the new deadline arrived in April 2022, Plaintiff
requested yet another extension. He also informed the National
Archives that if it declined to grant it, he would make a “protective
assertion of executive privilege” over the documents. The
National Archives rejected that assertion as unviable—saying the
“question in this case is not a close one”—and informed Plaintiff’s
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22-13005 Opinion of the Court 5
representatives that it would give the FBI access to the records.
Plaintiff did not follow through with any effort to block the FBI’s
review of the documents. So the FBI reviewed the records in mid-
May, more than three months after it first learned that classified
documents had been stored at Mar-a-Lago. It found 184
documents marked at varying levels of classification, including
twenty-five marked top secret. Warrant Affidavit ¶ 47.
In the meantime, the FBI had developed evidence that even
more classified information likely remained at Plaintiff’s residence.
The Department of Justice obtained a grand-jury subpoena for all
documents or writings bearing classification markings that were in
Plaintiff’s custody or control, and Plaintiff’s counsel was served
with the subpoena in early May.
Plaintiff did not assert claims of privilege or declassification
in response to the subpoena. But he did seek more time to produce
the requested documents, and the government eventually
extended the compliance deadline to June 7, 2022. A few days
before the deadline was set to expire, Plaintiff’s representatives
produced an envelope wrapped in tape, which was consistent with
an effort to comply with handling procedures for classified
documents. Warrant Affidavit ¶¶ 58, 60. It contained thirty-eight
classified documents, seventeen of which were marked top secret.
Id. A declaration accompanying the documents certified that a
“diligent search was conducted” of the boxes moved from the
White House and that “[a]ny and all responsive documents” had
now been produced.
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Even so, the FBI developed more evidence that other
classified documents remained at Mar-a-Lago. In August 2022—
over one-and-a-half years after the end of Plaintiff’s presidential
administration, six months after the first transfer of boxes to the
National Archives, and three months after the subpoena was
served—the Department of Justice sought a search warrant. It
presented an FBI agent’s sworn affidavit to a Florida magistrate
judge, who agreed that probable cause existed to believe that
evidence of criminal violations would likely be found at Mar-a-
Lago. Warrant Affidavit at 1, 32; Notice of Filing of Redacted
Documents at 2, In re Sealed Search Warrant, No. 22-mj-08332
(S.D. Fla. Aug. 11, 2022) (“Search Warrant”). The magistrate judge
issued a search warrant for the offices, storage rooms, and potential
storage sites at Plaintiff’s residence, and authorized the seizure of:
All physical documents and records constituting
evidence, contraband, fruits of crime, or other items
illegally possessed in violation of
18 U.S.C. §§ 793,
2071, or 1519, including the following:
a. Any physical documents with classification
markings, along with any containers/boxes
(including any other contents) in which such
documents are located, as well as any other
containers/boxes that are collectively stored or found
together with the aforementioned documents and
containers/boxes;
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22-13005 Opinion of the Court 7
b. Information, including communications in any
form, regarding the retrieval, storage, or transmission
of national defense information or classified material;
c. Any government and/or Presidential Records
created between January 20, 2017, and January 20,
2021; or
d. Any evidence of the knowing alteration,
destruction, or concealment of any government
and/or Presidential Records, or of any documents
with classification markings.
Search Warrant at 4. The warrant affidavit described a set of
protocols proposed by the government to create a “Privilege
Review Team.” Warrant Affidavit ¶ 81. The team was made up
of agents who were not otherwise participating in the
investigation; they were tasked with reviewing certain seized
documents to protect Plaintiff’s attorney-client privilege. See
id.
¶¶ 81–84.
The FBI executed the search warrant on August 8. Agents
seized approximately 13,000 documents and a number of other
items, totaling more than 22,000 pages of material. Despite the
certification from Plaintiff that “[a]ny and all” documents bearing
classification markings had been produced, fifteen of the thirty-
three seized boxes, containers, or groups of papers contained
documents with classification markings, including three such
documents found in desks in Plaintiff’s office. All told, the search
uncovered over one hundred documents marked confidential,
secret, or top secret.
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8 Opinion of the Court 22-13005
Plaintiff requested a copy of the warrant affidavit, an
opportunity to inspect the seized property, a detailed list of what
was taken from the residence and where it was found, and consent
to the appointment of a special master “to protect the integrity of
privileged documents.” The government denied those requests
shortly after the search.
A few weeks later, Plaintiff filed a new action in the United
States District Court for the Southern District of Florida, which he
styled as a “Motion For Judicial Oversight And Additional Relief.”
The motion asked the court to (1) appoint a special master;
(2) enjoin review of the seized materials until a special master was
appointed; (3) require the United States to supply a more detailed
list of the items seized; and (4) order the United States to return any
item seized that was not within the scope of the search warrant.
The motion was a civil filing and did not explain how the district
court had jurisdiction to act on all of its requests. It did, however,
claim to be a precursor to an eventual motion under Federal Rule
of Criminal Procedure 41(g). That rule permits a “person
aggrieved by an unlawful search and seizure of property or by the
deprivation of property” to “move for the property’s return.” Fed.
R. Crim. P. 41(g).
The district court could not identify a sufficient
jurisdictional basis for the filing, so it requested a jurisdictional
brief. Days later, Plaintiff responded that the district court had
“equitable and ancillary jurisdiction,” as well as “anomalous
jurisdiction,” to enjoin the government and appoint a special
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22-13005 Opinion of the Court 9
master. He also suggested that Federal Rule of Civil Procedure 53
may create an independent cause of action to appoint a special
master, but cited no authority for that theory. As for the requested
injunction against the United States, Plaintiff noted that the “law’s
ambiguity” meant that “principles of fairness” supported exercising
jurisdiction over the entire motion.
The next day—August 27—the district court issued an order
declaring “its preliminary intent to appoint a special master” and
requiring the government to provide Plaintiff with a more detailed
list of seized items. The court stated that it had jurisdiction
pursuant to the court’s “inherent authority” and Federal Rule of
Civil Procedure 53(b)(1), which reads: “Before appointing a master,
the court must give the parties notice and an opportunity to be
heard. Any party may suggest candidates for appointment.”
After a response from the government that included a
description of its privilege filter process, the district court issued a
September 5 order directing the appointment of a special master
under soon-to-be developed procedures, and barring the
government from using any of the seized documents “pending
resolution of the special master’s review process.” The order was
issued “[p]ursuant to the Court’s equitable jurisdiction and
inherent supervisory authority.”
Three days later, the government filed a notice of appeal. It
also filed a motion for a partial stay of the injunction so that it could
continue using the seized documents bearing classification
markings in its criminal investigation. The district court rejected
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10 Opinion of the Court 22-13005
the partial stay on September 15. It also issued an order naming
the special master and setting out his specific duties.
The government sought a partial stay from this Court the
next day. We granted the stay, concluding that the district court
likely had no equitable jurisdiction to issue an order relating to the
classified documents. Trump v. United States, No. 22-13005,
2022
WL 4366684, at *1, *7 (11th Cir. Sept. 21, 2022). Plaintiff applied
for relief in the Supreme Court, but that request was denied.
Trump v. United States, No. 22A283,
2022 WL 7255980, at *1 (U.S.
Oct. 13, 2022).
On October 5, this Court approved the government’s
request for expedited briefing in its appeal of the September 5 order
blocking review of the seized documents and directing the
appointment of a special master. Now, with the benefit of oral
argument, we conclude that the district court lacked jurisdiction to
consider Plaintiff’s initial motion or to issue any orders in response
to it.
II.
Because federal courts lack general jurisdiction, it “is to be
presumed that a cause lies outside” of our “limited jurisdiction.”
Kokkonen,
511 U.S. at 377. The “burden of establishing the
contrary rests upon the party asserting jurisdiction.”
Id. We
review an exercise of equitable jurisdiction for abuse of discretion.
See Richey,
515 F.2d at 1243. And review of a preliminary
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22-13005 Opinion of the Court 11
injunction includes the power to dismiss the entire action based on
jurisdiction or the merits. Munaf v. Geren,
553 U.S. 674, 691 (2008).
III.
Only the narrowest of circumstances permit a district court
to invoke equitable jurisdiction. Such decisions “must be exercised
with caution and restraint,” as equitable jurisdiction is appropriate
only in “exceptional cases where equity demands intervention.” In
re $67,470,
901 F.2d 1540, 1544 (11th Cir. 1990); see also
Hunsucker,
497 F.2d at 32. This is not one of them.
“It is a familiar rule that courts of equity do not ordinarily
restrain criminal prosecutions.” Douglas v. City of Jeannette,
319
U.S. 157, 163 (1943). To avoid unnecessary interference with the
executive branch’s criminal enforcement authority—while also
offering relief in rare instances where a gross constitutional
violation would otherwise leave the subject of a search without
recourse—this Circuit has developed an exacting test for exercising
equitable jurisdiction over suits flowing from the seizure of
property. Richey v. Smith instructs courts to consider four factors:
(1) whether the government displayed a “callous disregard” for the
plaintiff’s constitutional rights; (2) “whether the plaintiff has an
individual interest in and need for the material whose return he
seeks”; (3) “whether the plaintiff would be irreparably injured by
denial of the return of the property”; and (4) “whether the plaintiff
has an adequate remedy at law for the redress of his grievance.”
515 F.2d at 1243–44 (quotation omitted).
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12 Opinion of the Court 22-13005
Plaintiff’s jurisdictional brief in the district court dispatched
with all four of these inquiries in a single paragraph. But Richey’s
inquiry is not as simple as that filing made it out to be.
When we examine Plaintiff’s arguments about the Richey
factors, we notice a recurring theme. He makes arguments that—
if consistently applied—would allow any subject of a search
warrant to invoke a federal court’s equitable jurisdiction. That
understanding of Richey would make equitable jurisdiction not
extraordinary, “but instead quite ordinary.” United States v. Search
of Law Office, Residence, and Storage Unit Alan Brown,
341 F.3d
404, 415 (5th Cir. 2003) (quotation omitted). Our precedents
consistently reject this approach. We have emphasized again and
again that equitable jurisdiction exists only in response to the most
callous disregard of constitutional rights, and even then only if
other factors make it clear that judicial oversight is absolutely
necessary.
A.
We begin with whether Plaintiff has shown a “callous
disregard” for his constitutional rights. Whether that sort of
violation has occurred is the “foremost consideration” for a court
when deciding whether it may exercise its equitable jurisdiction in
this context. United States v. Chapman,
559 F.2d 402, 406 (5th Cir.
1977). When considering this factor, our precedent emphasizes the
“indispensability of an ‘accurate allegation’ of ‘callous disregard.’”
Id. (quoting Richey,
515 F.2d at 1243) (alteration adopted); see also
Hunsucker,
497 F.2d at 34 n.10 (collecting cases). Absent that,
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22-13005 Opinion of the Court 13
courts will not intervene in an ongoing investigation—and rightly
so. Because the vast majority of subjects of a search warrant have
not experienced a “callous disregard” of their constitutional rights,
this factor ensures that equitable jurisdiction remains
extraordinary. Otherwise, “a flood of disruptive civil litigation”
would surely follow. Deaver v. Seymour,
822 F.2d 66, 71 (D.C. Cir.
1987). This restraint guards against needless judicial intrusion into
the course of criminal investigations—a sphere of power
committed to the executive branch.
The callous disregard standard has not been met here, and
no one argues otherwise. The district court’s entire reasoning
about this factor was that it “agrees with the Government that, at
least based on the record to date, there has not been a compelling
showing of callous disregard for Plaintiff’s constitutional rights.”
None of Plaintiff’s filings here or in the district court contest this
finding.
Instead, he says callous disregard of his constitutional rights
is not indispensable to Richey’s test. That is an incorrect reading
of our precedent, as well as inconsistent with the longstanding
principles outlined above. Chapman,
559 F.2d at 406. And the fact
that Richey considers three other factors in its test does not suggest
otherwise. To the contrary, these factors underscore how rare this
exercise of jurisdiction should be—even a callous disregard of
constitutional rights is not enough, on its own, to allow for the type
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14 Opinion of the Court 22-13005
of relief that Plaintiff seeks. 2 As we did in Chapman, we will
consider the remaining factors for the sake of completeness.
B.
The second Richey factor is “whether the plaintiff has an
individual interest in and need for the material whose return he
seeks.”
515 F.2d at 1243. Plaintiff’s jurisdictional brief
mischaracterized this standard, referring to “the parties’ need for
the seized material” (emphasis added). He is wrong to suggest that
jurisdiction somehow depends on the balance of interests between
the parties—the relevant inquiry is if he needs the documents.
Plaintiff has made no such showing. His jurisdictional brief
in the district court asserted that the government had improperly
seized his passports and that its continued custody of “similar
materials” was “both unnecessary and likely to cause significant
harm.” But the passports had already been returned before he filed
his first motion, and his jurisdictional brief did not explain what
“similar materials” were at issue or why he needed them.
The district court was undeterred by this lack of
information. It said that “based on the volume and nature of the
seized material, the Court is satisfied that Plaintiff has an interest in
and need for at least a portion of it,” though it cited only the
2 Plaintiff’s lawyers claimed at oral argument that the special master process is
necessary to determine whether a constitutional violation happened. This jus-
tification finds no support in our precedent and would result in a dramatic and
unwarranted expansion of equitable jurisdiction.
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22-13005 Opinion of the Court 15
government’s filings and not Plaintiff’s. But that is not enough.
Courts that have authorized equitable jurisdiction have
emphasized the importance of identifying “specific” documents
and explaining the harm from their “seizure and retention.” See,
e.g., Harbor Healthcare Sys., L.P. v. United States,
5 F.4th 593, 600
(5th Cir. 2021) (Harbor did “far more than assert vague allegations”
by pointing to “thousands” of privileged documents that the
government retained for four years). Neither the district court nor
Plaintiff has offered such specifics.
Indeed, Plaintiff does not press the district court’s theory on
appeal. Instead, he argues that the Presidential Records Act gives
him a possessory interest in the seized documents. This argument
is unresponsive. Even if Plaintiff’s statutory interpretation were
correct (a proposition that we neither consider nor endorse),
personal interest in or ownership of a seized document is not
synonymous with the need for its return.3 In most search warrants,
the government seizes property that unambiguously belongs to the
subject of a search. That cannot be enough to support equitable
jurisdiction.
3 During discussion of this factor at oral argument, Plaintiff’s counsel noted
that the seized items included “golf shirts” and “pictures of Celine Dion.” The
government concedes that Plaintiff “may have a property interest in his per-
sonal effects.” While Plaintiff may have an interest in these items and others
like them, we do not see the need for their immediate return after seizure un-
der a presumptively lawful search warrant.
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16 Opinion of the Court 22-13005
Having failed to show his own need, Plaintiff attempts—as
he did in the district court—to reverse the standard, arguing that
the government does not need the non-classified documents for its
investigation. This is not self-evident, but it would be irrelevant in
any event. Plaintiff’s task was to show why he needed the
documents, not why the government did not. He has failed to
meet his burden under this factor.
C.
Richey next asks “whether the plaintiff would be irreparably
injured by denial of the return of the property.”
515 F.2d at 1243.
In his jurisdictional brief, Plaintiff suggested only that the
government’s “continued custody” of documents “similar” to his
passport was “likely to cause significant harm.” And again, the
district court stepped in with its own reasoning. It identified
potential irreparable harm that could arise based on (1) improper
disclosure of “sensitive information” to the public; (2) the United
States’s retention and potential use of privileged materials; and
(3) the stigma associated with the threat of future prosecution.
Plaintiff has adopted two of the district court’s arguments,
dedicating a single page of his brief to discussing the first and third
theories of harm. On the first argument, Plaintiff echoes the
district court and asserts that he faces an “unquantifiable potential
harm by way of improper disclosure of sensitive information to the
public.” It is not clear whether Plaintiff and the district court mean
classified information or information that is sensitive to Plaintiff
personally. If the former, permitting the United States to review
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classified documents does not suggest that they will be released.
Any official who makes an improper disclosure of classified
material risks her own criminal liability. See, e.g.,
18 U.S.C. § 798.
What’s more, any leak of classified material would be properly
characterized as a harm to the United States and its citizens—not
as a personal injury to Plaintiff.
As for records that may otherwise be “sensitive,” it cannot
be that prosecutors reading unprivileged documents seized
pursuant to a lawful warrant constitutes an irreparable injury for
purposes of asserting equitable jurisdiction. Here too, Plaintiff’s
argument would apply to nearly every subject of a search warrant.
The district court’s unsupported conclusion that government
possession of seized evidence creates an “unquantifiable” risk of
public disclosure is not enough to show that Plaintiff faces
irreparable harm.
Similar reasoning guides our approach to the other potential
injury identified by Plaintiff: the threat and stigma of future
criminal prosecution. No doubt the threat of prosecution can
weigh heavily on the mind of anyone under investigation. See
Richey,
515 F.2d at 1243 n.10; see also Deaver,
822 F.2d at 70. But
without diminishing the seriousness of the burden, that ordinary
experience cannot support extraordinary jurisdiction. Alan Brown,
341 F.3d at 415; see also Cobbledick v. United States,
309 U.S. 323,
325 (1940). The third Richey factor also weighs against exercising
equitable jurisdiction.
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D.
Finally, Richey asks “whether the plaintiff has an adequate
remedy at law for the redress of his grievance.”
515 F.2d at 1243–
44. In deciding this factor for Plaintiff, the district court’s answer
was that he “would have no legal means of seeking the return of
his property for the time being and no knowledge of when other
relief might become available.” This is not a sufficient justification.
To start, Plaintiff invokes Rule 41(g) in his brief on appeal, but only
to say that it has been applied in other cases. The only argument
that he has plausibly made relating to that rule is for the return of
documents “not within the scope of the Search Warrant.” There
is no record evidence that the government exceeded the scope of
the warrant—which, it bears repeating, was authorized by a
magistrate judge’s finding of probable cause. And yet again,
Plaintiff’s argument would apply universally; presumably any
subject of a search warrant would like all of his property back
before the government has a chance to use it.
Plaintiff’s alternative framing of his grievance is that he
needs a special master and an injunction to protect documents that
he designated as personal under the Presidential Records Act. But
as we have said, the status of a document as personal or presidential
does not alter the authority of the government to seize it under a
warrant supported by probable cause; search warrants authorize
the seizure of personal records as a matter of course. The
Department of Justice has the documents because they were seized
with a search warrant, not because of their status under the
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22-13005 Opinion of the Court 19
Presidential Records Act. So Plaintiff’s suggestion that “whether
the Government is entitled to retain some or all the seized
documents has not been determined by any court” is incorrect.
The magistrate judge decided that issue when approving the
warrant. To the extent that the categorization of these documents
has legal relevance in future proceedings, the issue can be raised at
that time.
All these arguments are a sideshow. The real question that
guides our analysis is this—adequate remedy for what? The
answer is the same as it was in Chapman: “No weight can be
assigned to this factor because [Plaintiff] did not assert that any
rights had been violated, i.e., that there has been a callous disregard
for his constitutional rights or that a substantial interest in property
is jeopardized.”
559 F.2d at 407. If there has been no constitutional
violation—much less a serious one—then there is no harm to be
remediated in the first place. This factor also weighs against
exercising equitable jurisdiction.
IV.
None of the Richey factors favor exercising equitable
jurisdiction over this case. Plaintiff, however, asks us to refashion
our analysis in a way that, if consistently applied, would make
equitable jurisdiction available for every subject of every search
warrant. He asks us to ignore our precedents finding that a callous
disregard for constitutional rights is indispensable. He asks us to
conclude that a property interest in a seized item is a sufficient
“need” for its immediate return. He asks us to treat any stigma
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arising from the government’s access to sensitive personal
information or the threat of potential prosecution as irreparable
injuries. And he asks us to find that he has no other remedy apart
from equitable jurisdiction, even though he faces no remediable
harm. Anyone could make these arguments. And accepting them
would upend Richey, requiring federal courts to oversee routine
criminal investigations beyond their constitutionally ascribed role
of approving a search warrant based on a showing of probable
cause. Our precedents do not allow this, and neither does our
constitutional structure.
Only one possible justification for equitable jurisdiction
remains: that Plaintiff is a former President of the United States. It
is indeed extraordinary for a warrant to be executed at the home of
a former president—but not in a way that affects our legal analysis
or otherwise gives the judiciary license to interfere in an ongoing
investigation. The Richey test has been in place for nearly fifty
years; its limits apply no matter who the government is
investigating. To create a special exception here would defy our
Nation’s foundational principle that our law applies “to all, without
regard to numbers, wealth, or rank.” State of Georgia v. Brailsford,
3 U.S. (3 Dall.) 1, 4 (1794).
* * *
The law is clear. We cannot write a rule that allows any
subject of a search warrant to block government investigations
after the execution of the warrant. Nor can we write a rule that
allows only former presidents to do so. Either approach would be
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a radical reordering of our caselaw limiting the federal courts’
involvement in criminal investigations. And both would violate
bedrock separation-of-powers limitations. Accordingly, we agree
with the government that the district court improperly exercised
equitable jurisdiction, and that dismissal of the entire proceeding is
required.
The district court improperly exercised equitable
jurisdiction in this case. For that reason, we VACATE the
September 5 order on appeal and REMAND with instructions for
the district court to DISMISS the underlying civil action.
