A chorus of legal experts declared themselves baffled and disturbed by a South Florida judge’s stunning decision Monday to raise a new roadblock in the DOJ’s Mar-a-Lago investigation.
District Court Judge Aileen Cannon granted Trump’s request to freeze the review of documents seized from Trump’s Mar-a-Lago club in early August and appoint an independent lawyer known as a “special master” to analyze the files. Yet the order struck many lawyers as a nonsensical piece of legal gibberish, notable for its strikingly favorability to the man who appointed the judge: Trump.
“It just doesn’t make any sense,” Rebecca Roiphe, a former prosecutor and now expert on prosecutorial ethics at New York Law School, told VICE News. “This judge seems to have disregarded basic legal categories to reach a certain result.”
Judge Cannon ran roughshod over existing precedent, misrepresented at least one important fact about the case, and granted Trump special treatment beyond what other suspects can reasonably expect, legal experts said. The order raised questions about whether the judge, appointed in 2020 and confirmed by the Senate after Trump lost his reelection bid, bent over backwards to help the former GOP president.
“The ruling is unduly and unjustifiably solicitous of Trump and clearly treats him differently than other people whom the DOJ investigates in the federal criminal justice system,” said Carl Tobias, an expert on the court system at the University of Richmond School of Law.
“It is unclear that the judge has jurisdiction, or that Trump has standing,” Tobias said, referring to the proper legal basis for the moves they just pulled in Cannon’s courtroom.
The ruling is “nutty,” said Andrew Weissman, former member of the Mueller investigation into Trump’s ties to Russia. Gene Rossi, former federal prosecutor in Virginia, called the order a “nonsensical legal pretzel.”
“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,” Samuel W. Buell, a Duke University law professor, told the New York Times. “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.”
Before the order came down, even Trump’s own former Attorney General, William Barr, once Trump’s most formidable legal defender, publicly dismissed Trump’s call for a special master as “a crock of shit.”
Way too late
Judge Cannon ordered the Department of Justice to stop “reviewing and using the seized materials for investigative purposes”—even though the DOJ has already looked at everything agents took from Mar-a-Lago.
“It’s very confusing,” Roiphe said. “What does it mean to not use documents they’ve already seen? Are they allowed to take investigative steps based on what’s in the documents? That’s unclear. I couldn’t understand her position.”
The order came a few weeks after FBI agents on Aug. 8 hauled a pile of boxes out of Mar-a-Lago containing folders marked “classified” or “top secret.”
In other cases, requests for a special master have been filed within days or even hours of a search, in order to avoid this scenario.
“To say the horse has left the barn is an understatement,” Rossi said.
Protecting Trump’s reputation
Cannon wrote that Trump’s reputation could be harmed if he is later charged with a crime on the basis of documents that “ought to be returned.” This danger to Trump’s public standing, she wrote, justified the court taking action.
Of course, Trump himself first publicized the FBI search, and hardly seems to think it’s an affair that needs to be dealt with quietly. To the contrary: He’s using the controversy to drum up outrage among his base to support his next run for president. Trump has been hellbent on turning the early stages of his campaign into a referendum on his own victimhood in the Mar-a-Lago scandal.
The “reputational” justification struck independent lawyers as bizarre. Anyone charged with a crime could argue that the indictment left a black spot on their public image, but very few suspects get to have a court-appointed super-lawyer review everything the cops took from their house before it can be used in court against them.
Judges typically appoint special masters when the feds search the offices of a lawyer, in order to protect documents that relate to legitimate legal business under so-called “attorney-client privilege.”
The DOJ said it already checked for such documents, and found only a small pile of about 500 files that might qualify. Regardless, the special master in this case will have a much bigger, stranger, and far less clearly defined task ahead of them.
That job will be to review documents for executive privilege—the legal principle that some White House communications should be held secret.
Many independent lawyers say Trump shouldn’t get to claim executive privilege in this case because he’s no longer the commander-in-chief. In other words, he shouldn’t get to argue that he has a stronger claim to White House files than sitting President Joe Biden.
Lawyers following the case said legal precedent holds that executive privilege belongs to the current president, not a past one.
In a recent legal analysis, former senior counsel to the House of Representatives Michael Stern concluded: “The notion that a former president can block his successor from accessing presidential records that the incumbent believes he needs for purposes of carrying out executive functions would be the most extreme manifestation of a doubtful legal theory, and one that has no support in any legal authority to date.”
But the judge declared herself “not convinced,” and said she doesn’t agree this principle is clear. She concluded the special master could review files for executive privilege because the DOJ’s position against such a move “arguably overstates the law.”
Despite her own hazy view on the subject, she didn’t include detailed instructions for how the special master is supposed to make decisions about competing claims of executive privilege between a current president and a former one, raising the prospect that chaos could easily erupt and require the Supreme Court to step in and play referee.
Even locating the right person to take on the job of special master looks like a challenge. They’d need to have a very high national security clearance. And it’s far from clear Trump and the DOJ will agree on an individual that neither side sees as biased.
Cannon also misstated a key piece of background about the case. She wrote that the current administration has not weighed in on whether Trump can exert executive privilege on the documents he stashed at Mar-a-Lago.
But a letter published by the National Archives and Records Administration shows that’s not so. The Biden administration effectively delegated its decision on executive privilege in this case to the National Archives, which said, nope, Trump’s claim isn’t valid.
This error means Cannon’s assertion that the Biden administration hasn’t weighed in is “nonsense,” tweeted Neal Katyal, former U.S. solicitor general.
The DOJ’s next move
But the Department of Justice now faces a tricky decision about whether to appeal Judge Cannon’s order, or let it play out.
An appeal could take months, and it would have to rise up through the local southeastern appeals circuit, known for being one of the most conservative in America.
Yet failure to appeal comes with a long-term downside for the Department of Justice, because it would mean letting this precedent stand. That could effectively grant any former president caught in some fresh criminal probe a lengthy, extra review process, as a super-special bonus shield from law enforcement.
“Should DOJ appeal this? I don’t think they have any choice,” said Roiphe. “Otherwise this odd precedent will just lay out there like a sore thumb.”
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