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Trump Judge Aileen Cannon Does The Old Man A Solid With Special Master Order
On a scale of one to ten, it's a 37.
Welcome back from your holiday weekend! Did you have fun? Well, not as much fun as Trump appointee Judge Aileen Cannon had taking a massive crap on the rule of law. Hooray!
We told you Judge Cannon was going to do something crazy in response to Donald Trump's request for a special master to sort through the evidence seized at Mar-a-Lago a month ago. But even we are FOR SHOCKED just how batshit insane this order is. In response to a series of pleadings that was roundly condemned by lawyers as laughable, the court has now agreed to appoint a special master to review the seized documents for both attorney-client privilege and executive privilege. And she ordered the government to stop using evidence seized pursuant to a duly executed search warrant in its criminal investigation.
Not to put too fine a point on it, but that is fucking nuts. And the nuttiest part is that she didn't even try to hide that she was inventing a new standard of law expressly for the guy who gave her a lifetime appointment to the federal bench.
"As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own," she wrote. "A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude."
You got that? Former presidents, at least from Team Red, have a legally cognizable interest in not getting indicted because it's embarrassing.
That is a standard invented out of whole cloth for Donald Trump. No criminal suspect, much less a defendant, gets to upturn the rules of civil and criminal procedure because "the threat of future prosecution and the serious, often indelible stigma associated therewith" make him feel all embarrassed. That is not how the Fourth Amendment goes in US America, when the cops can come in and take your shit, and there is not a damn thing you can do about it. Well, it's not how it goes for anyone else . But for Donald Trump, in Judge Cannon's courtroom, the rules do not apply.
Trump's lawyers handed Judge Cannon a pile of absolute dogshit, and she both took it upon herself to make arguments they were too stupid to make, along the way misconstruing both precedent and statutes completely.
For instance, if a criminal defendant seeks the return of personal property wrongfully seized, he can file a motion under Rule 41(g) of the Federal Rules of Criminal Procedure. Trump's lawyers explicitly said they weren't filing such a motion — they asked for a more detailed inventory of the property seized to preserve their right to file such a motion in the future. Here on Planet Earth, they'd lose anyway, because the government more or less always gets to keep your shit, and anyway this is a civil suit. But Judge Cannon explicitly cited the Rule, invented exigent circumstances in which the former president may desperately need his unspecified documents, and ordered the special master to pull that stuff out and give it back to him.
As a reminder, intermingling your nasty golf cleats with classified documents may constitute both evidence of failure to properly store those documents, and control of same — i.e. elements of a criminal prosecution. But now the Justice Department has to give that stuff back and quit investigating, even absent any suggestion that it was wrongly seized, to "ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented." Neat, huh?
The entire order is just littered with procedural lunacies of that level. Here's a cool thread by attorney Neal Katyal to get you started.
“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 Exec Privilege. Nonsense. The archives letter (which DOJ submitted to the Judge) makes it clear current President thinks none of this ...”
— Neal Katyal (@Neal Katyal) 1662414497
The most batshit insane thing in this pile of guano is Judge Cannon's reasoning for why it is appropriate to have the Special Master filter out documents that may be executive privileged.
First of all, any document that is subject to executive privilege is definitionally a presidential record in which Donald Trump has ZERO ownership interest. Those documents belong to the federal government, of which Donald Trump is no longer a part. Nevertheless, Judge Cannon cites various cases involving former president Richard Nixon, as well as Donald Trump's litigation seeking to stop the National Archives from turning his presidential records over to the January 6 Committee, in support of the principle that former presidents still have some ability to assert executive privilege. That's cool and all, but in point of fact, Nixon lost all those cases, and the Supreme Court didn't step in to stop the Archives giving Trump's records to Congress. (Here's a terrific thread on the subject if you want further reading.)
There's simply no precedent to keep executive documents from the executive branch: the Supreme Court has been very clear that invocations of privilege must almost always yield to criminal process. And anyway, there's a statutorily mandated procedure to invoke privilege over government documents, and it involves the Presidential Records Act and the US District Court in DC. It doesn't involve some 41-year-old Federalist Society goon in Florida unilaterally deciding that the PRA doesn't apply because she'd like to to Trump a solid, and it sure as hell doesn't involve the chief executive pocketing thousands of pages of documents on the way out the door and stashing them in the pool shed in defiance of a grand jury subpoena.
So, now what?
The Justice Department could appeal this foolishness immediately, at least insofar as it enjoins prosecutors from using any of the seized documents in its investigation. But that would put it in the issue before the 11th Circuit, which is similarly dominated by Trump appointees. But that might result in several months of delay, particularly if Trump decides to appeal any adverse ruling to the Supreme Court, where his buddies might also do him a solid by pumping the brakes. Or, the DOJ can take its lumps and negotiate for a special master who isn't some MAGA frother, on the assumption that the imposition of an additional layer of review won't magically transform the character of these documents. Before Trump's White House lawyers started asserting privilege over literally everything that happened in the executive branch, executive privilege was only relevant to conversations between the president and his closest advisers. Assuming you get a rational person appointed special master, and the universe of people with the relevant security clearance to review the documents is pretty small, the review might not make that much of a difference other than slowing down the investigation for a couple months.
TL, DR? It's fucking bullshit. But in the end, allowing Trump to hive off some small subset of the documents is not going to change the fact that he stole top secret national defense records and stored them in a closet by the pool, as well as in his private office. If the Justice Department was going to charge him, this might put the day of reckoning off for a while, but it won't change the final outcome.
[ Trump v. United States , Docket via Court Listener]
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