Judge Aileen Cannon unexpectedly threw a wrench into the Justice Department's criminal investigation of Donald Trump by ordering the appointment of a special master to sift through the documents the FBI seized from Mar-a-Lago on 8 August 2022.
I went over the sequence of events that led up to the FBI's execution of a search warrant that day. Surprisingly, further revelations on an almost daily basis since then have not contradicted that basic timeline. Rather, they've only deepened the public's understanding of the reasons the Justice Department was driven to the extraordinary step of seeking a warrant against a former president of the United States.
An indisputable, well-documented fact at the heart of the investigation is, Trump repeatedly lied. He lied first to the National Archives and Records Administration, then to DOJ, by pretending on multiple occasions to comply with each organization's requests for the return of all documents that by law belong to the government, not to him. That's why DOJ had to keep returning to Mar-a-Lago and on each visit found more documents he illegally retained.
Trump has kept lying to the public, claiming variously that he declassified documents automatically (a claim all but two of his advisers will not substantiate and which, in any case, is not borne out by the documents themselves, which bear none of the legally required marks indicating they've been properly declassified) or simply that the documents rightly belong to him.
That latter claim is, to repeat, a lie. Nearly every document a president touches during his time in office is the property of the U.S. government. That's because the president is not a king, he is a public servant, like every other elected official, and what his administration produces belongs to the people.
Trump's lies have been in service of delegitimizing DOJ's criminal investigation of his mishandling of these illegally held documents. Now Judge Cannon has supported Trump's subversive campaign with her indefensible order.
She spends pages emphasizing that an ex-president is not a typical target of a criminal investigation, solemnly invoking the need to bend over backwards to ensure the appearance of justice in pursuing such an atypical target. She all but accuses the Justice Department of misconduct and treats Trump as a respectable figure for whom "reputational damage" looms large.
Her concern for his reputation is laughable. Remember, the world first learned of the FBI's 8 August entry to Mar-a-Lago from Donald Trump. He, not DOJ, attracted all the public attention.
However, that's a relatively minor defect of Cannon's bonkers decision. The much bigger problem with her order is that she bends over backwards to treat Trump with overweening deference neither he nor any ex-president deserves — certainly not when the ex-president has exhibited the bad faith Trump has.
The facts are clear. NARA and then DOJ did their level best to get Trump to comply with the law voluntarily and without undue publicity. He illegally kept hundreds of documents despite multiple attempts to gain his voluntary cooperation. Some of those documents seem to have been incredibly sensitive and their disclosure to other nations could be incredibly damaging to national security.
Judge Cannon's order disregards these outrageous and undisputed facts in favor of protecting hypothetical "rights" or "privileges" of an ex-president that the law does not recognize.
Judge Cannon doesn't state a single reason why an ex-president might legitimately claim "executive privilege" (which is understood to be the province of the current president, consistent with the idea that the privilege belongs to the office, not to its occupants individually). She merely asserts that such a claim might exist.
I can claim dragons might exist. For that to mean anything to you, though, you'd expect me to explain why. Since Judge Cannon can't be bothered to explain herself, the rest of us need not give her assertion any credence.
Even if we did, why should we deem that possibility more important than the possibility that Trump was engaged in criminal misconduct? That's exactly what Cannon does, in defiance of the balance of evidence for each — a lot of evidence for criminal misconduct, no evidence that anything Trump illegally retained somehow "belongs" to him rather than to the presidency by virtue of an unexplained "executive privilege" belonging to an ex-president.
Cannon also prioritizes the attorney-client privilege of a criminal investigation's presumed target above the national security of the United States, by putting the evidence the Office of the Director of National Intelligence needs to conduct its damage assessment in the hands of a special master. How can she expect the ODNI to share control of evidence with a third party whose mission is to remove any items from that evidence that the third party deems improperly seized? If the ODNI deems an item crucial to its damage assessment, can the special master nevertheless remove it from consideration by returning it to Trump? (Cannon's order is silent on any such conflict.) Moreover, according to a former general counsel for the FBI, the ODNI damage assessment requires assistance from the very DOJ and FBI officials whom the order forbids to review the evidence pending the completion of the special master's work!
Speaking of the special master, Judge Cannon's order totally disregards the extraordinary difficulty of finding suitable candidates. The special master in this case must be expert not just in attorney-client privilege but in executive privilege, and must have the highest security clearances or be qualified to receive them where they can only be given on a discretionary basis. Judge Cannon's disregard of the difficulty of finding a special master with these qualifications is a dereliction of her duty to safeguard the government's, and thus the public's, rights.
(By the way, that "attorney-client privilege" business raises an awkward question: why would Trump have so much attorney work product at his residence? Moreover, why would that attorney work product be intermingled with "souvenirs" from his presidency? I find it hard to believe either is normal, even for an ex-president.)
Finally, Judge Cannon suggests that both DOJ and the FBI treated Trump disrespectfully. She was bothered by the fact that the FBI allegedly seized items that it should not have, items of an indisputably personal nature. (The best-known were a couple of Trump's passports.) My understanding is that seizing items not actually covered by a search warrant is not unheard of while executing one; the mistakes are understood to have been made in good faith unless there's clear evidence of misconduct. Trump has not provided a scintilla of evidence that any misconduct occurred. By all appearances he was treated like any other investigative target, no better and no worse.
Trump was told precisely what he should not have kept from his time in office. He had ample time in which to sort those items out from his personal possessions: after all, he (illegally) had those materials for over eighteen months! If, when the FBI executed its search warrant, his personal possessions were still intermingled with those illegally retained materials (and were thus subject to seizure by the terms of the search warrant, an awkward fact Trump ignores), whose fault is that?
Judge Cannon's order rewards Trump for being a slob and a hoarder and for disregarding the plain terms of communications from NARA and DOJ, while it simultaneously ignores the terrifying danger to our national security that his disregard for the law and proper security presented (and may still present if he has more documents, or copies of the ones already removed).
Her order also rewards Trump's amply-demonstrated bad faith during this saga by treating him as if he presented clean hands and honest assertions. Indeed, her order is so inexplicably deferential to him and so heedless of his demonstrated misconduct that it calls into question her own faithfulness to the oath she took when she became a federal judge.
Without a signed confession, I can't say Judge Cannon's a zealot who was determined from the start to favor Trump no matter what. What I can say is, she erred. She erred egregiously, and to her everlasting discredit as a jurist.
[EDITED: I toned down the likely exaggeration of "thousands" of documents and "many" of them being sensitive. I also word-smithed other spots and added a citation for my assertion that the ODNI's assessment needs DOJ assistance.]
