UPDATE (Sept. 16, 2022, 9:27 p.m. ET): On Friday, the DOJ in a filing asked a federal appeals court to temporarily block Judge Aileen Cannon’s ruling that prevents it from investigating government documents seized from the former president’s Mar-a-Lago home, including hundreds of pages of classified records.
When the Justice Department offered Judge Aileen Cannon a way to save face and admit her mistakes, she didn’t take it. Instead, Cannon, appointed by former President Donald Trump shortly before he lost the 2020 election and confirmed shortly after, just handed him another big legal win by denying DOJ’s request to allow the department to resume its criminal investigation with respect to about 100 of 11,000 pages of classified documents the FBI seized from Trump’s Mar-a-Lago home in August.
It makes no sense to assert a claim of executive privilege against a portion of the executive branch.
On Thursday evening, Cannon granted Trump’s request and named Judge Raymond Dearie to be the special master. Dearie was one of the two names put forward by Trump’s legal team and the one name the DOJ agreed would be acceptable. But don’t count on him beginning his work immediately.
The only problem is, Cannon’s judicial opinion is not grounded in the law. The DOJ is now all but forced to appeal the decision.
A few weeks ago, Judge Cannon ruled that Trump was entitled to a special master to independently review documents the FBI obtained when it executed a search warrant at his Mar-a-Lago residence. This may sound reasonable enough, but it isn’t. First, the DOJ already completed its own review of which documents could be covered by the attorney-client privilege and filtered those documents out. Second, Trump cannot claim executive privilege over any of the documents found at Mar-a-Lago.
Let’s consider just a few reasons why: They don’t belong to Trump, they belong to us. It makes no sense to assert a claim of executive privilege against a portion of the executive branch, in this case the DOJ. The current president, for example, has waived executive privilege. And the documents are subject to an ongoing criminal investigation, a legitimate basis under Supreme Court precedent for losing any executive privilege claims a president may assert.
It is galling to hear Cannon wax poetic about “the need to ensure at least the appearance of fairness and integrity under unprecedented circumstances.” Trump created these unprecedented circumstances, not anyone else, and particularly not the DOJ. Fairness and integrity are served by sound judicial decisions based on the law, not political conclusions masquerading as judicial rulings.
Judge Cannon also concluded that the DOJ had to halt its use of the documents found at Mar-a-Lago in its criminal investigation, but that the Office of Director of National Intelligence (ODNI) could continue with its national security assessment. This is legally and practically incoherent. Legally, if Trump has a claim of executive privilege or attorney-client privilege, that would apply to both the DOJ and the ODNI as executive agencies. Practically, the ODNI cannot continue its investigation into the national security risks posed by Trump’s apparent mishandling of highly sensitive documents, and in fact this is what the DOJ explained in its motion to stay part of Cannon’s ruling.
The DOJ, in other words, offered Cannon a compromise and a way out. Allowing the DOJ to resume its criminal investigation into classified Mar-a-Lago documents would allow the ODNI investigation to proceed, at least in part, because it has said it needs the cooperation of the DOJ to continue. The DOJ also asked that the special master not review those classified documents. Cannon, of course, rejected these requests. Fairness and integrity are served by sound judicial decisions based on the law, not political conclusions masquerading as judicial rulings. Let’s remember what this is all about. First, the DOJ found there was probable cause to believe evidence of a crime or crimes would be found at Trump’s Mar-a-Lago home. It was apparently right. The FBI found files, some with highly sensitive information that could potentially put us all at risk, that were improperly taken and stored at the former president’s residence. Then, in an effort to delay this investigation, Trump filed a baseless motion to obtain a special master. Trump didn’t go to the magistrate judge in charge of the case, he judge-shopped and got one of his own appointees to essentially aid and abet his delay scheme. The DOJ should not let this ruling stand. Cannon’s main concession, that Dearie should review the classified documents first, does not obviate the need for an appeal to the 11th Circuit. This is both because it creates a terrible precedent and because it must be able to continue with its investigation now, not on or after Nov. 30, when Cannon told Dearie to complete his investigation. “Admit your mistakes,” we teach our children. Perhaps we should teach our judges this as well.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
