It might seem that, having already repeatedly shocked the legal community by defying all precedent, procedure, facts, and law, Judge Aileen Cannon might decide to tread a bit more carefully in her latest ruling. Except that’s what someone who doesn’t know Cannon might think, because what she did is what she always does: bent over beyond backwards to give Donald Trump whatever he wants.
The last series of exchanges from Cannon, the government, and Trump’s legal team had both sides turning in a list of candidates as potential special masters. (One guess as to Cannon’s ruling on that point.) She went straight to Trump’s list to select retired U.S. District Judge Raymond Dearie. However, Dearie was the only choice on Trump’s list that the Department of Justice agreed to, so that could be seen as at least moderately reasonable. Next up, just how long will Dearie have to take a look at the documents? The Justice Department, naturally, wanted this over quickly. But Cannon decided to give Dearie until Nov. 30, meaning that there’s no danger that the documents will be available to the Department of Justice before the election. But even that isn’t the really appalling part of this latest Cannon missive.
That’s because in this ruling Cannon orders the Department of Justice to hand back all the documents, including those which are classified; denies the Department of Justice request to take action to protect national security; and hands herself the ability to decide whether or not any documents are actually classified.
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Dearie has experience on the FISA court, which should give him some experience in dealing with national security issues and classified information. On the other hand, one of the things that Dearie did on the FISA court was sit on the court that signed off on the warrants for Trump campaign adviser Carter Page. How Dearie feels about that, given the six-year effort to discredit that warrant, isn’t known. But it certainly would seem to create a potential for conflict. And the fact that Trump’s team put Dearie on their list after all the time Trump has spent railing against the FISA court would seem to suggest that they have some insight into Dearie’s feelings on this point.
But still … the government approved Dearie. Dearie has experience and a long judicial record that seems solid enough. No one regards the Reagan-appointed former judge as another Cannon.
Oh, and in case Dearie comes back with a decision that doesn’t fall in line with the results Trump wants, Cannon made sure to underline the fact that she can always pick someone else writing, “The Court reserves the right to remove the Special Master.”
But even that’s still within the bounds of normality once you get past the idea that there should never have been a special master appointed in this case. It’s what comes next where things really start to unravel the threads of rationality.
Naturally, in special master cases, the special master gets to examine the documents. That’s the point. However, even in cases where the question involves prosecutors being in possession of documents possibly protected by attorney client privilege, judges order that a copy of those documents be sent to the special master for evaluation.
Cannon didn’t do that. While she did order that the government provide a copy of all the material to Trump’s attorneys, and did order that the FBI privilege team send a copy of their work to both Dearie and Trump’s team, when it comes to the actual documents, Cannon leaves absolutely no option but taking them all, the originals, and depositing them on Dearie’s front porch.
At a minimum, the Government shall make available to the Special Master the Seized Materials, the search warrant executed in this matter, and the redacted public versions of the underlying application materials for the search warrant.
There’s nothing in this order to suggest that the government even gets to hold on to a copy of the documents … unlike Trump’s team. One other thing that got left out of Cannon’s order: any concern at all about the Department of Justice’s statements around obstruction or threats to national security. Cannon just blew right past that without discussion.
But wait. It gets worse.
It gets worse because on Thursday Cannon also responded to the Justice Department’s request for a stay to allow them to continue using the documents in criminal investigations. That request pointed out that there were genuine national security concerns in sitting on these documents. For example, if the documents were shown to someone, that could put human assets, technical assets, and decisions made based on the intelligence in these documents at extreme risk. The criminal case is intrinsically bound up with the intelligence and security case, and can’t really be separated.
Cannon’s response? I don’t believe you.
For the reasons discussed below, the Government’s Motion is DENIED … the Motion
effectively asks the Court to accept the following compound premises, neither of which the Court is prepared to adopt hastily without further review by a Special Master. The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them. The second is that Plaintiff has no plausible claim of privilege as to any of these documents.
In this ruling, Cannon is making two absolutely extraordinary claims: First, she accuses the government of lying about whether or not the documents are classified. Then she argues that Trump may have “a plausible claim of privilege.” In other words, Cannon is arguing for Trump’s “I declassified them” position even though Trump’s legal team never made this claim in any submission to the court. This, more even than her ruling to appoint a special master in the first place, is a flat out breakdown of the entire process.
There’s also the fact that in doing this, Cannon is placing herself in a position to adjudicate whether or not the documents are classified without reference to any other authority. She’s opened the door to the point where she could simply decide that the classified documents belong to Trump, no matter what anyone says.
It may seem like we can’t do anything about these types of judges. But in some states judges are on the ballot this November. Tune in to this week’s The Downballot to listen to Justice Richard Bernstein talk about what being on the Michigan Supreme Court has been like, and how his re-election campaign is shaping up.
All of this is extraordinarily dangerous, both to national security and to the usual form of legal proceeding where courts recognize the government as the authority in determining issues such as classification and security risk. There have been reasons to doubt the government’s position in the past, but in those cases judges have citied those reasons. Cannon has simply gone down the rabbit hole, and she’s taking the law with her.
There seems little doubt that, no matter the outcome of appeals, Trump is going to get what he wanted: a hefty delay, one that should please Republicans by sidelining any criminal investigation involving these materials until well after the election. But all of this has to be appealed anyway, because … good lord. This is bad law.
