One of the most dispiriting aspects of the decision yesterday by Federal District Court Judge Aileen Cannon—which granted former President Donald Trump’s request to appoint a special master to review the evidence seized from Mar-a-Lago by the FBI—is that it undermines the work of all the other judges who have tried to adhere to their oath to “administer justice without respect to persons, and do equal right to the poor and to the rich, and … faithfully and impartially discharge and perform all the duties incumbent” on the office. Her ruling is untethered to the law and presents a skewed recitation of the facts. Her actions make the question “Who appointed the judge?” a sadly relevant one in evaluating a judicial opinion.
Federal courts, with the notable exception of the Supreme Court, have generally fared well in providing a strong check and balance on attempted executive-branch abuses by Donald Trump. His efforts to have the courts further his bid to overthrow the will of the people in the last election have been rejected by judges nominated to the bench by both parties. The rule of law was on full display; courts around the nation repeatedly revealed a forum where facts, legal precedent, and logical reasoning have pride of place.
Cannon’s opinion, by contrast, is so deeply flawed that it’s hard to know where to begin a critique. Let’s start with the unequal application of the law. Although Trump wallows in feigned claims of persecution, in fact he has been privileged by the Justice Department, and now Cannon, in a manner unheard of for any other defendant. Every defendant would relish the opportunity to delay a criminal investigation by having a court enjoin the government from investigation, but that never happens. The time-honored recourse for someone aggrieved by a search is not to have an unelected judge unilaterally decide to enjoin the constitutionally delegated power of the executive branch to investigate and prosecute. The defense remedy is in a post-indictment motion to suppress evidence from a search.
Cannon addresses the departure from normal practice by inventing a new right for the former president, on the grounds that a post-indictment remedy would be insufficient for him to reclaim his good name. Leaving aside the question of whether her observation about the irreparable consequences of a delay in when he could assert a claim is factually supported, there are at least two other issues with this ruling. First, it is hard to see how her conclusion about harm would or should be cabined to Trump: Why would others under investigation not have the same claim? Is the extra protection of a special master—and the delay it entails—applicable to all public figures? Would we now have a new rule limiting investigations of government officials like Bill Clinton, as well as leaders of large corporations like Enron and Volkswagen and start-ups like Theranos? And if so, how is a rule that offers special privileges to the most advantaged members of our society consistent with providing equal justice for all? Cannon does not deal with any of this. Her ruling, in this respect, resembles the decision of former Attorney General Bill Barr to extend benefits to Roger Stone and Michael Flynn that were simultaneously denied to other defendants. The law, it seems, is simply different for Trump and his close allies.
The second problem with this aspect of Cannon’s decision is how completely unnecessary a special master is in this case. A review of potential attorney-client communications applies, at most, to a small subset of documents (no more than 500 or so pages, the filings suggest). These communications would have to be with Trump’s private counsel because he has no attorney-client privilege with the White House Counsel’s Office, which represents the office of the president and not him personally. And it is highly unlikely that any such communications relate to the issue of Trump’s theft and retention of government documents. But even assuming there is a risk that attorney-client communications might be relevant to the investigation, the Department of Justice has a tried-and-true method for dealing with it that doesn’t require a special master.
This issue surfaced during Special Counsel Robert Mueller’s investigation, which I worked on. When the special counsel received court authorization to search Paul Manafort’s Virginia home, a team of FBI agents who were not part of the special counsel’s investigation, known as a “taint team,” conducted it. That same day, as soon as the search was completed, we called Manafort’s counsel and alerted them that all of the evidence from the search would be made available to them, so that they could review and flag any materials they believed were privileged. The taint team resolved all of the flagged issues, and the process proceeded rapidly and without a hitch. Importantly, it did not require a special master, even though the volume of material (including electronic data, which the Mar-a-Lago search did not uncover) significantly outstripped the volume at issue in the Trump search. But Cannon did not seek to determine whether there were in fact any disputes between the parties about any such documents or explore with the parties the workability of a taint team.
Two other aspects of her decision are also worth noting. Cannon includes within the scope of the special master’s review documents that may raise executive privilege. She does not explain how the former president has the power to assert executive privilege; how executive privilege could restrict documents from being shared with the executive branch (which DOJ is part of); how it could apply to any documents at Mar-a-Lago that emanated from agencies like the CIA, NSA, or FBI; or why it would not be outweighed by the fact that the documents are needed in a criminal investigation (an interest that the Supreme Court found would overcome a privilege assertion by former President Richard Nixon). And even if some of the documents are covered by executive privilege, the documents would, by law, still have to go to the National Archives and not be returned to the person who absconded with them.
To understand the illogic of her decision, imagine the following scenario. I rob a bank of $1 million and stash the bags of cash in my hotel room. My gloves and wallet fall into one bag by accident. The police search my hotel room pursuant to a court-authorized warrant that permits seizure of the cash, gloves, and wallet. The judge appoints a special master to review the evidence seized, including every last dollar, even though I have no right to the return of anything that was seized. And she enjoins the criminal case for the duration.
But there is more: To support her decision, Cannon misleadingly claims that the current president has not asserted executive privilege. That is a shameful sleight of hand. If she really had a concern about President Joe Biden’s position, she need only have asked at oral argument. She did not. Instead, she engaged in a tortured reading of the evidence that the Justice Department did present to her. A letter sent by the archives to Trump’s counsel in May noted that Biden had authorized sharing the 15 boxes with the FBI and left to the archives the determination as to whether the documents taken from Mar-a-Lago were covered by executive privilege, and that, in consultation with the Justice Department’s Office of Legal Counsel, it had decided that this was not a close call and rejected the claim. Her opinion mentions the May archives letter, so we know she was aware of it, but she failed to address it or even note its executive-privilege discussion.
Finally, Cannon mercifully carves out the Office of the Director of National Intelligence’s review from the injunction she issued preventing the Department of Justice from using any of the search material in its criminal investigation. She gives no reason why the two should be treated disparately, but presumably it’s because the DNI could not indict Trump. But the work of the DNI is not easily separated from that of the Justice Department—indeed, the DNI’s letter to Congress makes clear that the two agencies are jointly conducting the review. That makes sense because the Justice Department is necessary to that review: To evaluate risks and harms, the DNI needs to know who touched and had access to the documents. It needs Mar-a-Lago visitor records, surveillance records, emails, and copier records, and it needs to interview witnesses. All of that requires grand-jury subpoenas, which also means that Department of Justice lawyers and FBI agents must be involved. And are Attorney General Merrick Garland, a prominent member of the intelligence community, and the experienced Deputy Attorney General Lisa Monaco supposed to recuse themselves from the DNI review so they can remain on the criminal investigation?
These are just a few of the factual and legal deficiencies in Cannon’s decision. It may help Trump in the short term, but by failing to apply the law evenhandedly, she has done lasting damage to the judiciary.