Let me begin by saying I am not a lawyer — which is why I am linking to Marcy Wheeler at Empty Wheel. She is not a lawyer either, but she has an impressive track record as an investigative journalist. With a doctorate in comparative literature, she is able to ravel out details that might escape a less-focused scrutiny.
Her observation that a document list showed none of the boxes of documents retrieved from Mar-a-Lago contained any news clippings after November 2020 suggests that possibility that there may yet be undiscovered boxes full of material from the months Trump was actively plotting a coup.
(See the writeup about that here.)
Wheeler has looked at the latest from Southern District Judge Aileen Cannon, who just ruled that the Department of Justice cannot use any of the documents the FBI retrieved in its investigation into the theft of classified materials and other property in the possession of Donald Trump until a Special Master has a chance to review all of the material and decide which is legitimately Trump’s property and must be returned to him.
(Although the same Federal government can review their status regarding classification. Whaaaaaatttt?)
Among other things, this might set the stage for a ruling declaring the entire search tainted, and prevent the Department of Justice from pursuing any indictments based on the material found to be illegally in possession of the former president. At the very least it will delay proceedings on what would otherwise be a clear-cut case of criminal activity.
But, to get there, Judge Cannon made some interesting interpretations of the law — and also dragged in the stolen diary of President Biden's daughter Ashley Biden to do so.
Judge Cannon’s Property Rights Pretzel Logic
Wheeler weighed on Cannon’s ruling yesterday, and had some pointed comments at the time:
Cannon didn’t just order a Special Master be imposed to review a subset of 520-pages of material set aside as potentially privileged (something that would be unexceptional, but something that would actually give Trump’s lawyers less involvement than the filter team was preparing to give his lawyers last week, when they wanted to hand these documents over directly to Trump’s lawyers).
Those amount to 64 sets of documents out of the 11282 seized on August 8 — less than 4.6% of the seized documents (and likely close to .5%).
She said that because the filter team worked better than mandated by the warrant, it was proof the filter team wasn’t working, and so a Special Master would have to go over everything again.
Wheeler also noted that Judge Cannon cited the case of the stolen Ashley Biden diary as justification for appointing a special master in the Trump document case, because it was “politicized”.
This is a minor point, but one that deserves more attention. Plus, I plan to use it in future posts about the unlawful assault on property rights that Judge Aileen Cannon has mounted in her opinion appointing a Special Master to stall the investigation into Donald Trump’s suspected theft of classified documents.
In a footnote of her opinion, Judge Cannon pointed to the Special Master appointed in the Project Veritas case as a precedent of a judge (Analisa Torres, in this case), appointing a Special Master “in politicized circumstances.”
emphasis added
Judge Cannon is making a rather interesting assertion here, because as Wheeler notes, the judge in that case didn’t.
...Crazier still, there’s no mention in the opinion, at all, about politics.
...This is a case about theft. We know it’s about theft because the two people who’ve already pled guilty in the case acknowledged it in real time (and pled guilty to transporting stolen goods across state lines).
...We know, too, that it’s not just about a stolen diary. In addition to the diary (which by the way included Ms. Biden’s extensive accounts of her own addiction treatment, the most personal kind of medical record), the thieves stole,
tax records, a digital camera, a digital storage card containing private family photographs, a cellphone, books, clothing, and luggage.
Aileen Cannon believes that the investigation of this theft — the culprits have admitted it!! — is politicized.
emphasis added
This is the kicker:
...Aileen Cannon argues that the investigation started under Bill Barr and Jeffrey Rosen into the theft — this is not contested! — of things including medical and tax records is politicized, mostly because the victim is the current President’s daughter.
Effectively, then, Judge Cannon is arguing that private citizen Ashley Biden can have no recourse for when someone literally steals her medical and tax records, but Trump must have special judicial interference to prevent the FBI taking medical and tax records in the process of investigating 11,000 stolen records.
emphasis added
Wheeler offers up this today, September 6, 2022:
Wheeler makes several points about what Judge Cannon has done. I’m summarizing and excerpting from it, but it’s worth reading to get the full impact of all the analysis Wheeler has done.
- Cannon agrees that possession is the law — if Trump doesn’t own the seized materials, he has no legal grounds to demand its return. This is all about property.
- But… Cannon argues, as Trump’s attorneys did not — that Trump does have a property interest here, rather than citing arguments about privilege.
- “She points to medical and tax records the likes of which she believes people should be able to steal from Ashely Biden with impunity and says those — a tiny fraction of the whole — gives Trump standing under Richey.”
- And that’s how she justifies appointing a special master.
Cannon goes out of her way to bend the law and the facts to fit her ruling:
...First, she took a subjunctive statement — that if the FBI were to find personal items without evidentiary value (like his passports, which they already returned, of which she makes no mention, because it would prove the government is right) — and outright lied and claimed it was a concession they had found such things. The reason she doesn’t mention the passports, by the way, is because the government said, “The location of the passports is relevant evidence in an investigation of unauthorized retention and mishandling of national defense information.” So even there, they asserted an investigative interest. But in a passage where the government states, outright, that the Plaintiff has not established the government has seized anything not covered by the warrant, Aileen Cannon simply invents a concession that says they took stuff that is unnecessary to the investigation. Makes it up!
And yet she uses it as part of her “proof” that there are personal belongings among the 11,000 stolen documents. And she invented it out of thin air.
Cannon doesn’t stop there:
Only after she decides that Trump has a possessory interest in the 11,000 stolen documents because of the tax and medical records therein that she prevented DOJ from sharing with Trump’s lawyers last week does she turn to the Presidential Records Act that makes these stolen documents. The first time she does so, and in a separate section, she dismisses the government’s argument about standing under Richey — analysis about which she has just done — as premature.
And:
...Five pages later, in a section on Executive Privilege, she concedes that questions about ownership under the Presidential Records Act don’t belong before a Special Master appointed by a SDFL judge. It belongs in the DC District.
….Having conceded that, Cannon has conceded she has no authority to appoint a Special Master to adjudge ownership under PRA. But in the same opinion where she concedes she doesn’t have this authority, she appoints a Special Master to weigh in on the matter.
This wouldn’t matter if Cannon just appointed a Special Master to review the attorney-client privilege claims. But her order envisions a review of all 11,000 seized stolen documents, based on her assertion that the question of ownership is still uncertain.
President Biden? Who he?
Aileen Cannon knows Joe Biden has already weighed in on the EP [excutive privilege] issue, but she pretends he hasn’t and decides that she, Aileen Cannon, must review hypothetical claims of EP raised against the Executive branch.
And this. (Face palm)
One of the funnier moves Cannon makes is in claiming that the seizure of these documents two months after Trump swore he had turned over all documents marked classified in his possession is not immediately incriminating.
emphasis added
Wheeler summarizes here with this:
Remember: Trump might not even own the things (identified in the privilege report and so unavailable to Bratt to address) on which Cannon has rested all her analysis. It could well be White House Counsel materials about the Mazars case or White House Physician materials about his near-death from COVID. Trump hasn’t made the argument they are his either (he instead relied on the passports that she ignored).
But based on first, her refusal to let DOJ share that material with Trump, and then her declaration that he does own it, Cannon has overturned the property structure before her, the 11,000 stolen government documents and the Executive Privilege that Biden has already, by delegation, asserted. Rather than forcing Trump to prove he owns this property, she’s just giving him default ownership of it.
In her desperation to shut down a criminal investigation into the theft of government documents, including highly classified ones, Aileen Cannon engages in large-scale appropriation of taxpayer owned property.
emphasis added
There’s a lot to unpack in all of this from Wheeler’s parsing of Cannon’s funny ideas about property. You will likely not get the depth that Wheeler goes into, but The NY Times headlines the ruling as ‘Deeply Problematic’ and cites opinions from a number of experts on how problematic this ruling is.
Several tidbits from the Times:
“This would seem to me to be a genuinely unprecedented decision by a judge,” Mr. Rosenzweig said. “Enjoining the ongoing criminal investigation is simply untenable.”
(Paul Rosenzweig is a former homeland security official in the George W. Bush administration and prosecutor in the independent counsel investigation of Bill Clinton.)
Born in Colombia in 1981, Judge Cannon graduated from Duke University in 2003 and the University of Michigan Law School in 2007. After clerking for a Republican-appointed appeals court judge in Iowa, she worked as an associate for a corporate law firm for three years before becoming an assistant federal prosecutor in Florida.
In her Senate questionnaire, she described herself as having been a member of the conservative Federalist Society since 2005. Mr. Trump nominated her in May 2020, and the Senate confirmed her on Nov. 12, nine days after he lost re-election.
emphasis added
Maybe there should be some law about a lame duck president being barred from making appointments?
The NY Times brings some snark to the report by Charlie Savage by closing with this remark from Duke University law professor Samuel W. Buell regarding the ruling of this alumna from his school:
“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,” he wrote in an email. “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.”
If the Department of Justice does not appeal this travesty of a ruling, it would confirm there is no justice in America, not for people like Trump. Let’s not even think about how the Trump Supreme Court will rule if this fight goes that high...