Sep 06, 2022
Legal experts have thoroughly condemned U.S. District Court Judge Aileen Cannon's Monday decision to prevent the U.S. Department of Justice from using materials obtained during the FBI's legally authorized search of former President Donald Trump's Mar-a-Lago home in its ongoing criminal investigation until a special master reviews the documents.
Cannon--appointed by Trump and confirmed by Senate Republicans after he lost the 2020 election--argued in her ruling that the DOJ should be "temporarily enjoined" from examining the more than 11,000 government records seized last month, some of which were marked "top secret," while an as-yet-unnamed special master reviews them for "material subject to claims of attorney-client and/or executive privilege."
"This court is giving special considerations to the former president that ordinary, everyday citizens do not receive."
As MSNBC's Steve Benen wrote Tuesday, "The idea that executive privilege is even at play in this case is genuinely weird."
"At issue are documents that belong to the federal government, not to Trump," Benen noted. "What's more, the former president is a private citizen with no executive authority, so he can't exert power he doesn't have to hold materials that aren't his."
According to New York University law professor Ryan Goodman: "Judge Cannon had a reasonable path she could have taken--to appoint a special master to review documents for attorney-client privilege and allow the criminal investigation to continue otherwise. Instead, she chose a radical path."
Cannon's order blocks federal prosecutors from analyzing the seized materials "for criminal investigative purposes" even as it allows other government officials to keep scrutinizing them "for purposes of intelligence classification and national security assessments."
Several critics lambasted Cannon--a 41-year-old member of the arch-conservative Federalist Society who quickly established her reputation as a far-right jurist--on Twitter.
Andrew Weissman, a law professor at New York University who previously spent 20 years with the Justice Department, characterized the ruling as "nutty." Laurence Tribe, professor emeritus of constitutional law at Harvard University, called it "utterly lawless."
According to former U.S. acting solicitor general Neal Katyal, "This special master opinion is so bad it's hard to know where to begin."
After detailing why he thinks Cannon's legal reasoning--including her assertion that Trump desrves a special master because he is facing reputational harm--is "terrible," Katyal wrote that "any of my first year law students would have written a better opinion."
As The New York Timesreported Monday:
Ronald S. Sullivan Jr., a Harvard Law School professor, said anyone targeted by a search warrant fears reputational harm, but that does not mean they can get special masters appointed. He called Judge Cannon's reasoning "thin at best" and giving "undue weight" to the fact that Mr. Trump is a former president.
"I find that deeply problematic," he said, emphasizing that the criminal justice system was supposed to treat everyone equally. "This court is giving special considerations to the former president that ordinary, everyday citizens do not receive."
Samuel W. Buell, a Duke University law professor, agreed.
"To any lawyer with serious federal criminal court experience who is being honest, this ruling is laughably bad, and the written justification is even flimsier," he wrote in an email. "Donald Trump is getting something no one else ever gets in federal court, he's getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he is being persecuted, when he is being privileged."
As Benen pointed out, "Cannon said at the outset that she was inclined to give Team Trump what it wanted, but she thought it best to give the Justice Department an opportunity to make its case."
"When prosecutors did exactly that in devastating fashion," he added, "the Trump-appointed judge ignored them and issued a ruling legal scholars are hard pressed to defend."
In a Slate opinion piece published Tuesday, Norman Eisen, former White House ethics czar during the Obama administration, and Fred Wertheimer, founder and president of Democracy 21, argued that Cannon's order "ignores the impossibility of returning these documents to Trump."
The pair explained:
There are more than 103 classified documents, including 18 designated as top secret--signifying that their mishandling risks exceptionally grave damage to national security. And that's before factoring in other indicia of danger, like the recent revelation that investigators seized 48 empty folders with classified markings, which raises the question: Where are the documents? It is difficult to contemplate any basis for the return of even a single classified document under any circumstances--and certainly while the contents of these folders are unaccounted for.
Indeed, Judge Cannon herself acknowledges the danger to national security posed by Trump's request to the extent it would stop the Office of the Director of National Intelligence's ongoing national security review. The order enjoins the government from further review and use of these documents for investigative purposes, not for purposes of intelligence classification and national security assessments. In this way, the order is inconsistent; carving out the national security assessment from the injunction undercuts the assumption that Trump may be entitled to the return of these documents, as well as the premise that the ongoing criminal investigation must be halted. How can we contemplate the possible return of documents that could cost the lives of American agents to someone who has already treated these records with such neglect?
Further, how can national security officials make determinations on how best to protect the nation if criminal investigators are enjoined from taking investigative steps that may also serve that very purpose? Indeed, some government officials would typically be part of both of these reviews--such as the attorney general himself. The order's false dichotomy does not take account of those realities that are needed to protect us all.
"The DOJ now faces a weighty decision regarding appeal," wrote Eisen and Wertheimer. "It might seem faster to simply get on with appointing a special master, particularly since we are now within the period before an election when the DOJ prefers to stay out of political matters. If the document review could be wrapped up within that time frame, perhaps the best approach for the DOJ is to allow the review to proceed."
"On the other hand, there will undoubtedly be disagreements over particular documents that will then need to be referred by the special master for resolution by the judge, and those decisions could then be subject to appeal," they added. "Nobody knows how much time that review will require. And the DOJ may not be able to afford leaving this order's precedent on the books, given its numerous analytical flaws."
Further complicating matters is that any appeal would be heard by the 11th Circuit Court of Appeals, which has a significant majority of Republican-appointed judges. Six of the court's 11 active jurists were nominated by Trump alone.
Jessica Levinson, director of the Public Service Insitute at Loyola Law School, made the case for why the DOJ should appeal or file a motion for reconsideration.
"Cannon's ruling will not just slow down the DOJ's investigation for no valid reason, it is also so thin on analysis it threatens to set dangerous legal precedent," Levinson wrote in an MSNBC opinion piece. "It reads more like a political conclusion in search of a legal rationale than a judicial order."
"This temporary halt may not sound like much of a problem, but delay is the name of the game when it comes to Trump's litigation (read political) strategy," Levinson continued. "Let's remember, the longer the case takes, the closer we are to the midterm elections and then the run-up to the presidential election. Trump is likely to declare his candidacy soon, if for no other reason than to give him and his base the ability to claim that the ongoing investigation is simply just [President Joe] Biden going after a political opponent."
"The legal question when it comes to Cannon's ruling remains: Is it fair that someone who may have taken government documents whose disclosure would put us all at risk should be able to halt a criminal investigation based on an illusory claim of executive privilege, the DOJ's lawful gathering of some personal documents, and the potential harm to his reputation?" she added. "I think we know the answer to that."
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