To Donald Trump, ethics and laws are for losers, and judges you appoint are supposed to rule in your favor. That caused humiliation for the former president when “his” three U.S. Supreme Court justices refused to overturn Joe Biden’s election or shield his financial records from investigators.
But another of Trump’s judges lived up — or more fittingly, down — to his crude expectations.
U.S. District Judge Aileen Cannon, one of 14 judicial nominees whom the Senate confirmed after Trump’s 2020 defeat but before Biden took office, astounded legal experts with a broad-brush order requiring a special master to review the government documents recovered by the FBI in its search of Mar-a-Lago last month and halting for now the agency’s investigation.
Cannon, 41, a judge in the Southern District of Florida and like most recent Republican appointees a member of the right-wing Federalist Society, went far beyond where judges have gone before. One critic, New York University law professor Chris Sprigman, aptly called it “partisan hack judging.”
She has unnecessarily delayed the Justice Department investigation of Trump’s theft of documents belonging to the National Archives and his casual mishandling of some records so highly classified that their contents cannot be described to the public.
Trump’s initial defense that he had declassified these incredibly sensitive documents — with news reports describing the contents as a military assessment of a foreign power’s nuclear defenses and potentially exposing spies for the CIA — was laughable on its face.
Foreign governments that trusted the U.S. are rightly concerned over what might have leaked from Mar-a-Lago. The national interest and our allies cannot afford to have those clouds linger.
Cannon was clearly swayed by the odd suggestion that a former head of the executive branch can assert executive privilege against that same branch of government, even if the present head of the government refuses.
That’s another issue she assigned to the special master, a role normally limited to fact-finding, not judicial interpretation. In a rare case of cooperation, the two sides settled on the appointment of Raymond Dearie, 78, a retired federal judge in New York.
Judicial overreach
Cannon’s overreach could taint the investigation of the Trump-inspired Jan. 6 insurrection as well.
Her order reeks not just of bad judging but of inappropriate sympathies to a potential criminal defendant. She referred to “exceptional circumstances.” What’s exceptional is, she’s giving unique considerations to a former president who should be no more above the law than any other citizen.
The Justice Department investigates many people every year and brings charges against more than 70,000. Not many would be able to evoke a judge’s sympathy as Trump has over the possibility of a wrongful indictment.
Quoting another court, Cannon wrote that “a wrongful indictment is no laughing matter … the stigma cannot be easily erased. In the public mind, the blot on a man’s escutcheon, resulting from such a public accusation of wrongdoing, is seldom wiped out by a subsequent judgment of not guilty.”
Has everyone else missed something here? Trump hasn’t been charged with anything. Yet Cannon seems to presume not only that he will be, but that the charges would be unfounded. That goes far, far beyond the legitimate question of whether Trump is entitled to the prompt return of personal papers among which he had stashed classified documents that were never his to possess.
Trump is not entitled in any sense to have a judge freeze the Justice Department’s entire investigation in the interim, as Cannon did. Clearly, she has cut him favors that no ordinary criminal suspect could reasonably expect. Throughout his life, Trump has fended off legal actions with delaying tactics, and this is the latest.
A risky appeal
The Justice Department’s decision to appeal Cannon’s order is the correct one even though it risks having the 11th Circuit Court of Appeals spread the contagion by upholding her order. Six of its 11 active judges are Trump appointees. Appeals are time-consuming.
However, the government is also asking her for reasonable accommodations: To let the FBI continue investigating with the official documents it has already retrieved and to allow a special master access only to those that are not classified.
For Cannon to refuse to compromise on those points would confirm her bias toward the man who made her a judge despite her having barely the 12 years of legal experience required for a “qualified” rating from the American Bar Association. Should she refuse, the Justice Department will appeal that too.
Her original order, the Justice Department warned, “could impede” efforts to identify and find other classified documents that Trump might have stashed elsewhere. To allow a special master access to the ones seized at Mar-a-Lago would “cause the most immediate and serious harm to the government and public,” the government said.
Clerks in federal courts are supposed to assign cases randomly. There are 27 active and senior judges in the Southern District. The “appearance of fairness” — to borrow one of Cannon’s pretexts for her order — is open to question. The situation calls for some assurance from the chief judge that Cannon’s selection was indeed random.
There’s a backstory here. Five months ago, Trump lawyers chose the Fort Pierce federal courthouse, where Cannon is the only assigned judge, to file an unrelated lawsuit against Hillary Clinton and many others over the 2016 election. It looked like judge-shopping. After the case was assigned to U.S. District Judge Donald Middlebrooks instead, Trump asked him to recuse himself because Bill Clinton appointed him — and Middlebrooks refused.
When Trump is on trial, he wants to make sure the person on the bench is a person he put there.
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