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Aileen Cannon’s decision to slowdown/stop the DOJ Investigation into the Trump Classified Documents heist has been widely canned, by legal scholars across the spectrum. No matter, Trump got his wish to have a Special Master appointed to review every Document seized (presumably in a detailed report back to Trump lawyers). As an added bonus, Team Trump got an extra “legal gift,” that reportedly they weren’t even asking for:
Judge Cannon “enjoined” [halted, prohibits] the DOJ’s ongoing investigation into Trump’s crimes.
This move is unprecedented, even if an argument can be made for why a Special Master is needed, as flimsy as that may be.
According to a legal consultant on MSNBC earlier today, the investigation into the “Security Breach Damage” may continue, as long as DOJ and FBI doesn’t use the Classified Documents recovered to: interview witnesses, as evidence before a Grand Jury, or as leads to investigate Trump’s crimes.
The legal pundit then correctly asks, somewhat astounded:
How is the “Security Breach Damage” assessment supposed to happen with those kind of restrictions? And then answers: It has effectively been halted too.
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Well Neal Katyal, another MSNBC legal consultant, and former Solicitor General, was equally astounded by Cannon’s over-reach of a ruling.
Katyal took to Twitter, in a long series of Tweets to enumerate the many ways that this 12th hour Trump appointed Judge [Dec 2020] — is flat wrong:
This special master opinion is so bad it’s hard to know where to begin:
1. She says Biden hasn’t weighed in on whether docs protected by Exec Privilege. Nonsense. The archives letter (which DOJ submitted to the Judge) makes it clear current President thinks none of this ...
is privileged. Archivist says it is “not a close” question.
2. Judge enjoins the entire investigation because some of the material might be subject to Executive Privilege. But Executive Priv[ilege] isn’t some post-presidential privilege that allows Presidents to keep documents after ...
they leave office. At most, it simply means these are Executive documents that must be returned to the archives. It doesn’t in any way shape or form mean they can’t be used in a criminal prosecution about stolen docs [documents].
3. She says the “reputational” harm to Trump justifies a special master. That’s insane–every crim deft [criminal defendant] has reputational harm. Are we now going to have special masters in every crim[inal] investigation?
4. She says the Special Master should screen materials for exec[utive] privilege, without ever once explaining what specific material is subject to exec priv [executive] privilege], particularly when the incumbent President rejects the assertion. How is the Master supposed to figure that intricate Q [Question] out?
5. She says that because some tiny percentage of materials might be privileged, the entire investigation over all the materials has to stop. That’s a bazooka when one needs at most a scalpel.
6. She tries to enjoin the Exec[utive] Branch from using these materials in an investigation, but the govt [government] has already reviewed all the materials. It makes no sense.
7. She says Trump suffers irreparable harm in interim, but the only harm she isolates is he won’t have the docs [documents] back during the investig[ation]. That’s not irreparable, he can get them back later and if they are improperly used to bring an indictment, he can move to dismiss the indictment.
8. Her analysis of standing is terrible. Trump wouldn’t own these docs [documents] anyway, so why does he get a Master over them? If there is some marginal claim to some attorney client docs [documents], that handful of material can be separately dealt with–you don’t enjoin the entire investig[ation] for that.
9. Her jurisdictional analysis is similarly awful. She let Trump forum shop for a judge, instead of letting the magistrate judge evaluate these claims. The appearances here are tragic.
That’s just a few of many more problems. Frankly, any of my first year law students would have written a better opinion.
Here is the link to the multi-part Tweet-thread, which I consolidated and slighted annotated for readability above.
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Some key questions remain:
Should the DOJ appeal this faulty and poorly reasoned decision, to higher courts?
Or should the DOJ play along with Cannon’s game to slow-walk and scrutinize every Document seized recovered, where the Judge potentially gets to weigh the relevance of Trump’s (non-existent) Executive Privilege claims, to each and every disputed item?
Hello Xmas, Hello Easter, Hello Executive-whats-it-again?
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My vote would be to appeal the ruling.
Better to do that, than to give “official” credence, to the Deny-Lie-Stall routine that Trump employs every time he gets caught breaking, yet another one of the Nation’s Laws.
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But what do you think?
After considering all the pros and cons. What should the DOJ do?
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