Judge Aileen Cannon is Trump's best lawyer in years
Trump got what he asked for and more — the appointment of a special master and an order that DOJ put part of its criminal investigation on hold.
The week started with a bang, with US District Judge Aileen Cannon agreeing with former President Donald Trump’s request that a special master be appointed to examine the materials seized nearly a month ago in the FBI’s search at Mar-a-Lago.
More on that, but, first, a thank you to everyone who has already subscribed to Law Dork. On Monday, Law Dork hit — and passed right on by — 2,500 subscribers. That so many people would subscribe in the first 10 weeks makes me so grateful for this opportunity that I have.
As I wrote when I started back in June, “The coming two years are going to be pivotal to the way our legal system, our politicians, and, ultimately, our country operate.” The past 10 weeks have made this reality all the more clear to me — and, I think, all of us.
With Trump literally bragging on Monday that his endorsed candidate for governor in Massachusetts would “rule … with an iron fist,” it’s clear that President Joe Biden’s speech last week did nothing to lead Trump to tone down his authoritarian talk. And, with the Supreme Court considering a case this coming term that could eviscerate state-court efforts to hold out-of-control state legislatures accountable in redistricting and other federal election matters, it’s not just Trump and his allies who could be seeking to upend democracy in the months ahead.
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TRUMP’S PLAY, WITH AN ASSIST: US District Judge Aileen Cannon, a Trump appointee, granted Trump’s request on Monday to appoint a special master to review the materials seized from Mar-a-Lago on Aug. 8. The materials, which included documents with classified markings found in multiple locations, were seized subject to a search warrant — issued by a magistrate judge in Cannon’s judicial district.
Her ruling approves a review by the special master of both Trump’s attorney-client privilege claims — which the Justice Department presumed would be included in review if a special master was appointed (although it opposed the appointment) — and also Trump’s post-presidency executive privilege claims — which virtually no one except Donald Trump, his lawyers, and Aileen Cannon believe merit the treatment Cannon gave them on Monday.
In the 15 days since Trump’s lawyers first went to Cannon with their request, Cannon has done a lot of work for the Trump legal team. Even in the order, she was helping them out, getting them more than they asked for. In one significant development, Trump’s legal team had asked for an injunction stopping DOJ from reviewing materials seized any further. Cannon on Monday granted that, but then went further — also barring DOJ from any “use” of the material in its criminal investigation for now as well.
In a footnote, she explicitly writes about her legal help.
While the ruling gives Trump what he wants, it’s not clear yet how much this step will significantly slow down DOJ’s timeline for this investigation. Given that officials already had reportedly decided not to make any charging announcement until after the elections in November, there is some time for the special master’s review that DOJ already could have figured into their broader timeline for this investigation and any possible eventual charges.
The ruling itself, though, has problems. It at times appeared to completely ignore one or both of two key (and obvious) contextual elements here: the fact that there is a criminal investigation going on and the fact that Trump is the former, and not current, president. For example, when authorizing the executive privilege review, Cannon relied heavily on theoretical, residual authority that the Supreme Court has said former presidents may have to raise executive privilege claims — while ignoring the context of the ongoing criminal investigation by the current, actual executive relating to the very documents over which Trump would be raising the executive privilege claim.
In the same section, almost as an aside, Cannon notes that she will allow the “[Office of the Director of National Intelligence]’s national security assessment” to continue even as she disallowed DOJ from using “any of the materials seized” in the search “for criminal investigative purposes.”
The ruling creates inherent difficulties for the special master, once they are appointed, particularly as to the executive privilege questions. It also creates difficulties for the federal government, with one entity allowed to go ahead with using the documents and another — which, at times, provides legal advice and representation to the first entity — barred from using them.
The circularity of the problems raised by Cannon’s order is perhaps best seen by reference to an earlier Trump story: The Ukraine call that led to Trump’s first impeachment. There, ODNI — specifically, its inspector general — sent a criminal referral to the FBI, which is a part of DOJ. Under Cannon’s order, ODNI is allowed to proceed with its intelligence review, which could, in theory, lead to yet another criminal referral — to a department barred from using the materials that would form the basis for the referral.
In any event, that is what Cannon — a longtime Federalist Society member before her judicial appointment — did on Monday.
Now, the question is: Will DOJ appeal?
Initially, when Cannon suggested that she was inclined to appoint a special master, I thought DOJ quite possibly wouldn’t appeal, figuring that the review could get done quickly and that it would, if nothing else, give the process more of a perception of fairness going forward should (when?) they charge Trump.
Now, though, Cannon’s order does two big things that DOJ might not be able to avoid appealing. The first is the allowance of the executive privilege claim review. The inclusion of that claim could significantly extend the time the review will take, the number of documents involved, and the issues that could arise during the review. It also puts out into the world, in an order from a federal judge, the idea that a former president can do this, which DOJ might feel an obligation to seek reversal on, as an institutional matter. The second is the injunction — particularly given that it applies to the whole search and not just the documents filtered for possible attorney-client privilege — and the limits that it places on a federal criminal investigation. The combination of the two might make this order too much of a problem — even if it is primarily one of delay — for DOJ not to appeal.
Of course, an appeal to the US Court of Appeals for the 11th Circuit means, ultimately, a court where six of the 11 active judges were appointed by Trump.
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POLICING PREGNANCY: If you haven’t been paying attention to stories about the way pregnancy — even outside of abortion — was already being policed and prosecuted in this country under Roe v. Wade, and even if you have been, I urge everyone to read this extremely powerful look into this area of the law, which is certainly more treacherous for women and other pregnant people now than it was before the Supreme Court overturned Roe in June.
More than 50 women have been prosecuted for child neglect or manslaughter in the United States since 1999 because they tested positive for drug use after a miscarriage or stillbirth, according to an investigation by the Marshall Project, the Frontier and AL.com that was co-edited and published in partnership with The Washington Post.
The medical community calls this legal approach harmful and counterproductive. But it’s a strategy many legal experts say is likely to become more common now that Roe v. Wade has been overturned, making it easier for states to pass laws that give fetuses and embryos the same rights as children or mothers.
Read the story, which delves not just into the cases and policies, but also the ways these policies can have the effect of making pregnancy less safe.
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I was incredibly disheartened (but not surprised) by Judge Cannon's decision. Of course, and as you noted, if the Justice Department DOES appeal, it will go to the Trump-dominated 11th Circuit. And, if the case goes beyond that, which Supreme Court Justice is the gatekeeper for appeals from the 11th Circuit? Justice Clarence Thomas.
And people wonder why I am so pessimistic about former President Trump facing any justice for anything that he has ever done?