Courts

The Department Of Justice, Mar-A-Lago, And The Wisdom Of Crowds

There's one thing that people are overlooking when they praise the Department of Justice alone for the quality of this brief.

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(Photo by Win McNamee/Getty Images)

I was thinking again about the controversy over the search warrant issued for Mar-A-Lago.

Last Thursday, the Department of Justice filed its brief asking Judge Aileen Cannon to stay her order requiring that a special master review certain classified documents and temporarily prohibiting the use of those documents in a criminal investigation.

The DOJ’s brief was very good. Read it yourself. Or ask the experts, who said, among other things, that Merrick Garland “brought the A team” to write the brief.

That’s all true, but there’s one thing that people are overlooking when they praise the Department of Justice alone for the quality of this brief.

Certain people work at the DOJ. Those people write briefs. The DOJ might have assigned a couple of its great brief writers to this particular (high-profile) project.  But I don’t think that explains everything.

One of the reasons that this brief was exceptionally good probably has to do with the wisdom of crowds.

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Think about the average lawsuit. It’s, say, a Pennsylvania breach of contract case.  The judge issues an order. The associate and I who are working on the case analyze the order, think hard about it, do some research, and then draft a motion asking the judge to stay part of the order. We might do nice work.

But suppose that 10 professors, all of whom specialize in Pennsylvania contract law, had also studied the judge’s order and commented on it. Those professors weren’t specifically working on my case, but the associate and I had the chance to read those professors’ comments before we finalized our motion.

Our motion would probably be a little bit better, don’t you think?

When, a week ago, Cannon issued her order requiring the appointment of a special master in the Trump case, almost every lawyer knowledgeable about the intersection of criminal and national security law (and in a position to comment) read the order and opined on it. Andrew Weissmann, a former assistant United States attorney and general counsel to the FBI, published an article about Cannon’s order in The Atlantic.  The New York Times article about the order quoted a person who had helped to prosecute Bill Clinton; law professors from NYU, Harvard, Stanford, and Duke; and others, all of whom critiqued the opinion. And so on.

I’m sure the lawyers at the DOJ who wrote the brief asking Cannon to stay her order did so on their own; they did not reach out to the commentators to ask for help. But the DOJ lawyers were surely aware of the many criticisms of the order that other experts had offered. And the DOJ could select from among those many proffered criticisms to present the most compelling arguments in its brief.

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The DOJ was on its own as to matters of style, phrasing, and touch. But the DOJ was not on its own as to the substance of the brief; the department was very unlikely to overlook any key issues, or important subtleties, when it asked the judge to stay her order. After all, everyone who was anyone had offered up their thoughts about the order, and the DOJ could read and consider whether any of those arguments were worth making.

That’s not to say that the DOJ lawyers did a bad job; to the contrary, they did an excellent job.

But the DOJ had a hidden assistant — the many knowledgeable people who had read the order and then publicly opined on its weaknesses.

There is wisdom in crowds — particularly, smart crowds.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].

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