On Sunday, Judge Aileen Cannon stunned legal experts, along with those who have even a passing understanding of applicable law, by granting Donald Trump’s request to appoint a “special master” to review the documents taken during an FBI search of Mar-a-Lago that took place on Aug. 8. Not only did Cannon grant Trump everything he wished for, she went beyond his request to grant an injunction instructing the Department of Justice to suspend use of the records for investigative purposes.
As former FBI agent and attorney Asha Rangappa notes, this injunction was created from whole cloth by Cannon in her decision. Trump’s attorneys did not ask for an injunction, but Cannon “did Trump’s lawyers’ work for them.” In her ruling, Cannon ignores the law, ignores precedent, ignores procedure, and ignores the government’s response. That’s not an exaggeration. Beyond this, she simply misstates (aka “lies about”) everything from past rulings of the Supreme Court to President Joe Biden’s position on executive privilege.
Cannon’s ruling can be appealed to the 11th Circuit Court, or the government might decide to take another approach, such as taking action in a D.C. court. They might actually even return documents to Trump and subpoena them again. But whatever the next step, Cannon hasn’t just given Trump his special master, she’s given him exactly what he really wanted: a slowdown in a case that was rapidly running toward indictment.
The injunction that Cannon inserted into her ruling may be the most egregious part of a ruling that purposefully distorts the law at every possible point. Not only was that injunction not part of the request from Trump’s attorneys, Cannon grants:
“a temporary injunction on the Government’s use of the seized materials for investigative purposes.”
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The phrasing of this injunction is such that no one seems to understand what it means. This material has already been with the FBI for a month. The recovered documents include 103 classified documents, including human intelligence, signals intelligence, and satellite intelligence. Is Cannon’s instruction to be read as if the government can’t take action on the consequences of these documents being exposed? Can it continue to follow up potential threats, or look into who may have seen classified materials? “For investigative purposes” is such an unfamiliar construction that no one seems to have any clue on how to proceed.
It very much seems that Cannon is, in this injunction, telling the government to freeze any action on Trump—even if that freeze idles chasing down the intelligence fallout from Trump’s theft.
After a month, the Department of Justice has already informed Cannon that they have looked at the material and that privilege teams have reviewed documents for potential conflicts. There’s nothing that can really be gained in terms of keeping information hidden by this special master order. But the injunction inserts a wrench into the spokes and creates massive confusion. The need to clear this injunction and push past any potential issues in taking necessary actions—not just to prepare a case against Trump, but to handle potentially devastating impact of expose of this material—is the biggest reason the government is likely to make a swift appeal to the 11th Circuit.
But it’s far from the only reason to appeal. Because if Cannon’s ruling is allowed to stand in any fashion, it lends support to a distorted view of the legal situation around executive privilege that would make dealing with any documents untenable.
It would also seem to suggest that any defendant can seek such an injunction and a special master to halt investigation of any crime even when officials have valid search warrants. That’s because when Trump’s attorneys failed to point out any actual harm that might come to Trump through a government review of these materials, Cannon created one for them: “potential reputational harm.” Unfolded, this seems to say that if the review leads to indictment, that could hurt Trump’s reputation. So the government has to stop looking. That this destroys the whole criminal justice system is a consequence that doesn’t seem to bother Cannon.
There are purposeful lies/distortions/misreadings of law that Cannon builds into her ruling in order to grant Trump what he wanted and then some. Among them, Cannon:
- Claims that President Biden hasn’t weighed in on whether the documents are protected by executive privilege when the letter from the National Archives makes it clear that he has.
- Supports the idea that Trump can declare items privileged after leaving office, and backs this with a definitive misstatement of Supreme Court rulings concerning Nixon.
- Invents the idea that Trump requires a special master because of that possibility of “reputational harm,” including citing how knowledge that he had been searched might hurt Trump, even though Trump was the first to confirm that a search took place.
- Creates the whole idea that a special master can review documents for executive privilege without providing any clue about how that would proceed, and without Trump naming a single document as protected.
- Gives an example of some materials that might be subject to attorney-client privilege, then declares that the whole investigation has to be halted even though those documents represent a tiny fraction of the total and have already been filtered out by the privilege team at the FBI.
- Ignores the fact that Trump does not own any of the documents, either classified or unclassified, that fall under the Presidential Records Act and treats them all as if Trump is the sole owner, which she uses to justify the special master appointment.
- Claims that the Department of Justice has admitted they took material with “no evidentiary value,” which is a complete distortion not found in any Department of Justice filing.
Attorney and author Andrew Weissmann has a suggestion: The Department of Justice should propose that Reinhart be appointed as the special master, which should swiftly dispose of much of the silliness in Cannon’s order.
But the truth is there is no one who has the qualifications to act as the special master Cannon describes. No one who has the broad range of clearance for information that’s not just classified top secret but also compartmentalized across a range of subjects. And that special master would have to invent some method of handling claims of privilege based on Cannon’s distorted view of past Supreme Court rulings.
Cannon has fired a shot that threatens to rip apart not just this case, but many. It’s not just a ridiculous ruling, it’s an actively harmful ruling. A ruling that’s malicious in its disregard for many aspects of the law.
The only thing to do with this ruling is to kill it. Quickly. Before it spreads.
