After the American people soundly rejected Trump’s reelection effort, the Senate kept confirming the unqualified ideologues that were being pushed onto the bench by the Federalist Society’s Leonard Leo, part of a tawdry financial deal with the GOP. One was Aileen Cannon, a member of the Federalist Society since 2005, even before she graduated from law school two years later. A week after Trump’s huge defeat, the Senate confirmed her with the help of a dozen conservative Democrats, the usual suspects like the 2 lunkheads from Delaware, the 2 lunkheads from Nevada, the 2 lunkheads from Virginia, Dianne Feinstein, Joe Manchin, Maggie Hassan… It didn’t seem like a big deal at the time.
But Trump’s current goal in the espionage case against him is delay, delay, delay. And his team went judge shopping and found this particular far right shill-on-the-bench. They skipped right over the West Palm Beach federal courthouse— practically walking distance about from Mar-a-Lago and instead filed in the relative backwater of Ft. Pierce, over an hour’s drive up I-95.
Yesterday, Charlie Savage wrote that legal experts see her “extraordinary decision on Monday to interject in the criminal investigation” into Trump’s stealing and refusal to return— and possibly selling— top secret intelligence documents as “unusual solicitude to him.” University of Texas law professor Stephen Vladeck called it “an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation.”
In reaching that result, Judge Cannon took several steps that specialists said were vulnerable to being overturned if the government files an appeal, as most agreed was likely. Any appeal would be heard by the Court of Appeals for the 11th Circuit in Atlanta, where Trump appointed six of its 11 active judges.
Paul Rosenzweig, a former homeland security official in the George W. Bush administration and prosecutor in the independent counsel investigation of Bill Clinton, said it was egregious to block the Justice Department from steps like asking witnesses about government files, many marked as classified, that agents had already reviewed.
“This would seem to me to be a genuinely unprecedented decision by a judge,” Mr. Rosenzweig said. “Enjoining the ongoing criminal investigation is simply untenable.”
…After Judge Cannon was assigned to Trump’s special master lawsuit, she made the unusual move of publicly declaring that she was inclined to instate one even before hearing arguments from the Justice Department. But she could have done so in a far more modest fashion.
“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,” said Ryan Goodman, a New York University law professor. “Instead, she chose a radical path.”
A specialist in separation of powers, Peter Shane, who is a legal scholar in residence at NYU, said there was no basis for Judge Cannon to expand a special master’s authority to screen materials that were also potentially subject to executive privilege. That tool is normally thought of as protecting internal executive branch deliberations from disclosure to outsiders like Congress.
“The opinion seems oblivious to the nature of executive privilege,” he said.
The Justice Department itself is itself part of the executive branch, and a court has never held that a former president can invoke the privilege to keep records from his time in office away from the executive branch itself.
The department had argued that even if a special master were appointed, there would be no legal basis for that person to examine issues of executive privilege. It cited a 1977 Supreme Court case involving the papers of former President Richard Nixon, who had tried to use executive privilege to shield them even though the sitting president disagreed.
But Judge Cannon wrote that she was not convinced and believed the Justice Department’s stance “arguably overstates the law.” In that case, she said, the Supreme Court also stated that former presidents retained some residual power to invoke executive privilege.
The Supreme Court also said the incumbent officeholder is in the best position to assess such issues. But Judge Cannon wrote that the justices had not “ruled out the possibility” that a former president could ever prevail over the current one.
“Even if any assertion of executive privilege by plaintiff ultimately fails in this context,” she wrote, “that possibility, even if likely, does not negate a former president’s ability to raise the privilege as an initial matter.”
She did not address a 1974 Supreme Court case that upheld the Watergate prosecutor’s demand for White House tapes as part of a criminal investigation despite the attempt by Nixon, then the sitting president, to block it by asserting executive privilege.
“Even if there is some hypothetical situation in which a former president could shield his or her communications from the current executive branch,” Shane said, “they would not be able to do so in the context of a criminal investigation— and certainly not after the material has been seized pursuant to a lawful search warrant.”
Judge Cannon allowed a separate review of the documents, by the Office of the Director of National Intelligence, to continue. It is assessing the risk to national security that the insecure holding of sensitive documents at Mar-Lago may have caused.
David Alan Sklansky, a Stanford University law professor, said he was glad that work had been allowed to continue given its importance. But he said there was an inherent contradiction in allowing the executive branch to use the files for that purpose while blocking it from using them for an active criminal investigation.
“There is this odd situation where one part of the executive branch can use the materials and another not,” he said.
… Ronald 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 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 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.”
Former U.S. Solicitor General Neal Katyal might not be laughing but this morning he tweeted that “This special master opinion is so bad it’s hard to know where to begin:
1. She says Biden hasn’t weighed in on whether docs protected by Exeutivec Privilege. Nonsense. The archives letter (which DOJ submitted to the Judge) makes it clear current President thinks none of this is privileged. Archivist says it is ‘not a close’ question.
2. Judge enjoins the entire investigation because some of the material might be subject to Executive Privilege. But Executive Privilege isn’t some post-presidential privilege that allows Presidents to keep documents after they leave office. At most, it simply means these are Executive documents that must be returned to the archives. It doesn’t in any way shape or form mean they can’t be used in a criminal prosecution about stolen documents
3. She says the ‘reputational’ harm to Trump justifies a special master. That’s insane– every criminal defendant has reputational harm. Are we now going to have special masters in every criminal investigation?
4. She says the Special Master should screen materials for executive privilege, without ever once explaining what specific material is subject to exec privilege, particularly when the incumbent President rejects the assertion. How is the Master supposed to figure that intricate question out?
5. She says that because some tiny percentage of materials might be privileged, the entire investigation over all the materials has to stop. That’s a bazooka when one needs at most a scalpel.
6. She tries to enjoin the Executive Branch from using these materials in an investigation, but the government has already reviewed all the materials. It makes no sense.
7. She says Trump suffers irreparable harm in interim, but the only harm she isolates is he won’t have the documents back during the investigation. That’s not irreparable, he can get them back later and if they are improperly used to bring an indictment, he can move to dismiss the indictment.
8. Her analysis of standing is terrible. Trump wouldn’t own these docs anyway, so why does he get a Master over them? If there is some marginal claim to some attorney client documents, that handful of material can be separately dealt with– you don’t enjoin the entire investigation for that
9. Her jurisdictional analysis is similarly awful. She let Trump forum shop for a judge, instead of letting the magistrate judge evaluate these claims. The appearances here are tragic.
That’s just a few of many more problems. Frankly, any of my first year law students would have written a better opinion.”
UPDATE: I Wonder If Cannon Reads The Atlantic
NYU law professor Andrew Weissman was formerly the general counsel of the FBI. Today he wrote a stinging piece in The Atlantic, A Ruling Untethered to the Law. “One of the most dispiriting aspects of the decision yesterday by Federal District Court Judge Aileen Cannon… is that it undermines the work of all the other judges who have tried to adhere to their oath to ‘administer justice without respect to persons, and do equal right to the poor and to the rich, and … faithfully and impartially discharge and perform all the duties incumbent’ on the office. Her ruling is untethered to the law and presents a skewed recitation of the facts. Her actions make the question ‘Who appointed the judge?’ a sadly relevant one in evaluating a judicial opinion.” [It also makes “who voted to confirm the judge relevant and voters should take that question into account when they go to the polls.]
Weissman wrote that Trump’s “efforts to have the courts further his bid to overthrow the will of the people in the last election have been rejected by judges nominated to the bench by both parties. The rule of law was on full display; courts around the nation repeatedly revealed a forum where facts, legal precedent, and logical reasoning have pride of place. Cannon’s opinion, by contrast, is so deeply flawed that it’s hard to know where to begin a critique… Cannon addresses the departure from normal practice by inventing a new right for the former president, on the grounds that a post-indictment remedy would be insufficient for him to reclaim his good name… [B]y failing to apply the law evenhandedly, she has done lasting damage to the judiciary.”