UPDATE (Sept. 8, 2022, 4:45 p.m. ET): On Thursday, the DOJ asked a Florida U.S. District Court to stay part of Judge Cannon’s special master order preventing the review of seized classified documents that could be used for criminal investigative purposes. DOJ also filed a separate notice indicating its intent to appeal the order.
United States District Judge Aileen Cannon, nominated by former President Donald Trump and confirmed to her position after he lost the 2020 election, has granted Trump’s request for a special master to review documents the Department of Justice obtained at his residence at Mar-a-Lago and to delay the department’s investigation while that review occurs.
Cannon’s often dubious legal conclusions add up to a political win for Trump and dangerous precedent for our criminal justice system.
Cannon’s ruling will not just slow down the DOJ’s investigation for no valid reason, it is also so thin on analysis it threatens to set dangerous legal precedent. It reads more like a political conclusion in search of a legal rationale than a judicial order. The DOJ should appeal, at least the part of Cannon’s ruling that prevents it from continuing its criminal investigation, or file a motion for reconsideration.
This temporary halt may not sound like much of a problem, but delay is the name of the game when it comes to Trump’s litigation (read political) strategy. Let’s remember, the longer the case takes, the closer we are to the midterm elections and then the run-up to the presidential election. Trump is likely to declare his candidacy soon, if for no other reason than to give him and his base the ability to claim that the ongoing investigation is simply just Biden going after a political opponent.
Perhaps the most enraging part of the judge’s opinion isn’t her incorrect legal analysis, but rather her protestations about fairness and integrity. She writes, “[a] commitment to the appearance of fairness is critical, now more than ever.” How true that is. But none of that counsels in favor of appointing a special master and delaying the DOJ’s investigation.
Trump may have filed a motion for a special master because of the backlash to an all-too-obvious pattern he created: He bloviated outside of the courtroom about the unfairness of the FBI’s search, he alternatively claimed the documents were planted, privileged, and/or unclassified. But he didn’t file anything in court challenging the FBI’s search of his home until his delayed response for a special master, which even Cannon admitted was “somewhat convoluted.”
At each step of the way, Cannon’s often dubious legal conclusions add up to a political win for Trump and dangerous precedent for our criminal justice system. First, Cannon concluded that she had jurisdiction to rule on Trump’s request for a special master, deciding that she possessed something called equitable jurisdiction, which she admitted is reserved only for “exceptional circumstances.”
The case does in fact present exceptional circumstances, just not for the reasons Cannon concluded. The DOJ and a magistrate judge concluded that there was probable cause to believe evidence of a crime would be located at Trump’s residence. And the DOJ appears to have found what it was looking for. That is exceptional, and so is Cannon’s judicial overreach.
Cannon first concluded that Trump “has an individual interest in and need for the seized property” because the documents the FBI obtained included a few “medical documents, correspondence related to taxes, and accounting information,” and also information potentially subject to the attorney-client privilege. But this reasoning misses the point. Cannon concludes Trump has an interest in these few documents related to medical issues, taxes and accounting (which were validly obtained under the search warrant), but then expands her ruling so that Trump can stop the DOJ from continuing its entire investigation into the thousands of pages of government documents over which he has no possessory interest and which are clearly covered by the search warrant.
There is no legal world in which such a move would be permissible in the face of a criminal investigation.
And again, the magistrate judge granted the search warrant here so the DOJ could search for and obtain documents which, if mishandled, threaten our national security. But sure, let’s allow Trump to halt this entire investigation based on a small number of personal documents that were validly obtained by the DOJ.
Next, Cannon found that Trump faced “risk of irreparable injury” if she did not exercise jurisdiction over the case because Trump is “being deprived of potentially significant personal documents,” sensitive information might be leaked to the media, and, wait for it, Trump “has claimed injury from the threat of future prosecution and the serious, often indelible stigma associated therewith.” Three things here: First, any personal documents that the DOJ obtained will be returned to Trump on the same timeline that they would be returned to anyone in his position. Trump is not being deprived of anything that requires Cannon to insert herself into this investigation. This is what happens when law enforcement executes a search warrant that allows them to retain personal documents that are found in government folders. Second, Cannon’s assertion that there will or could be leaks to the media is made without basis. Third, and perhaps most importantly, Cannon’s fears about a stigma has implications for every criminal investigation throughout the country. This potential stigma is not unique to Trump. Cannon is essentially saying never mind about the injury, and indeed national security threat caused by an individual’s apparent improper retention of our nation’s most sensitive documents. Never mind about the injury, and indeed very real personal security threat, caused to the individuals who gather intelligence to keep our nation safe. Instead, let’s focus on the “stigma” that Trump might face if the DOJ were to be able to continue its investigation and support the rule of law.
Cannon, in her continued fretting over Trump’s reputation, focuses on “wrongful indictment[s],” and reminds us that “as a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own.” The meat of Trump’s claim, of course, is that he is entitled to a special master to make determinations as to whether the documents the FBI found at Mar-a-Lago are covered by an evidentiary privilege. Remember, because Trump’s motion came so late, the DOJ already finished its review for documents covered by the attorney-client privilege. Cannon concludes that there is evidence that the DOJ’s screening for privileged documents was insufficient because there is evidence of “at least two instances in which members of the Investigative Team were exposed to material that was then delivered to the Privilege Review Team and, following another review, designated as potentially privileged material.” These instances, as the DOJ explained in part, “were the result of adopting an over-inclusive view of potentially privileged material out of an abundance of caution,” to which Cannon has no real response, other than a legal version of, “Why should I believe you, DOJ?” And then, finally, we get to the most twisted portion of Cannon’s order. Moving on from issues of attorney-client privilege to executive privilege, she tackles Trump’s nonsensical argument that a special master is needed to review documents that might be covered by executive privilege. Trump cannot assert executive privilege over these documents, among other things, because President Joe Biden waived executive privilege, the documents are needed in a criminal investigation and they belong to the executive branch; and, if documents covered by the privilege were found, they should be returned to the National Archives, not Trump. Nonetheless, Cannon concluded that Trump, as the former president, has the ability to raise the issue of executive privilege, even if the claim “ultimately fails.” And it should ultimately fail. At least if the next judge follows the law. Let’s be clear – Cannon does not actually find there is an executive privilege interest that exists, just that one maybe, possibly, potentially could. Even though, really, it can’t. A former president has never been able to use executive privilege to prohibit a portion of the executive branch itself (in this case, the DOJ) from obtaining documents. And even if he could, there is no legal world in which such a move would be permissible in the face of a criminal investigation. The punchline here is that Cannon has temporarily stopped the DOJ from using the documents it recovered at Mar-a-Lago while the special master reviews those documents, but has allowed the Office of Director of National Intelligence (ODNI) to continue its national security assessment. If this sounds incoherent, you’re not alone. If Trump has a claim of executive privilege, it would seem to apply to the DOJ and the ODNI, both executive agencies. The same is true for claims related to the attorney-client privilege, they would apply to both agencies. It is also not entirely clear that the ODNI can continue its assessment without the DOJ. The legal question when it comes to Cannon’s ruling remains: Is it fair that someone who may have taken government documents whose disclosure would put us all at risk should be able to halt a criminal investigation based on an illusory claim of executive privilege, the DOJ’s lawful gathering of some personal documents, and the potential harm to his reputation? I think we know the answer to that.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
