What a game! It just shows that you’re never out of it and to keep fighting.
On that note, DOJ is in the 11th Circuit fighting to get a stay of Judge Cannon’s order. Its brief is here. Trump has to respond by Wednesday.
And Philip Esformes is still fighting, also now in the 11th Circuit. His oral argument was Friday. Although the panel expressed dismay at the prosecutor’s handling of the case, it also expressed doubt about doing anything about it. Unfortunately, it cited my old case — United States v. Shaygan. From Law360:
During oral arguments in Miami, Esformes’ counsel, James C. Martin of Reed Smith LLP, insisted that reversal is warranted because the trial court should have disqualified the prosecution team for misconduct, including invading attorney-client and work product privilege in a raid on one of Esformes’ facilities and in secret recordings of his conversations.
But U.S. Circuit Judge William H. Pryor Jr. said the argument “seems to be foreclosed by a long line of precedent.”
The Eleventh Circuit’s chief judge said the appeals court has held that disqualification is not required for intrusion into attorney-client privilege absent a showing of actual prejudice, but in his initial brief, Esformes presented an argument of “structural error,” based on prosecutors allegedly injecting their self-interests into the proceedings over his pretrial motion for dismissal or disqualification.
“You haven’t really made a case for actual prejudice. You have to make the argument for the first time in the blue brief,” Judge Pryor added, referring to the required color for the cover sheet of an appellant’s initial brief.
Martin argued that the threat of prejudice has also been held to be sufficient grounds for dismissal. He pointed to a friend of the court brief that several former U.S. attorneys general, including Edwin Meese, John Ashcroft and Alberto Gonzalez, filed in support of Esformes, which Martin said stated that such a threat “sticks to the case” and “taints the entire prosecution.”
U.S. Circuit Judge Jill Pryor said that argument would seem to undermine the need to show actual prejudice in any case involving a privilege intrusion.
What’s different here, Martin responded, is the level of intrusion.
“It’s unprecedented,” he said.
Judge William Pryor expressed agreement about that but noted the district court made a finding there was no prejudice and repeated that he did not see where Esformes’ side had made an argument about that.
The chief judge also expressed doubts about Martin’s argument that prosecutors improperly injected their personal interests by being represented individually by outside counsel and raising arguments about their career prospects during the disqualification motion proceedings.
“Of course they have a right to counsel, don’t they?” he asked.
The judge cited the Eleventh Circuit’s 2011 decision in USA v. Shaygan , in which the court found a district court violated two prosecutors’ constitutional due process rights by sanctioning them without providing notice of charges of misconduct and an opportunity to be heard.