The best thing one can say about Judge Aileen Cannon’s decision Monday appointing a special master to review the documents seized from Trump’s Mar-a-Lago resort is that it’s not the end of the world: the Justice Department can continue its investigation of Donald Trump’s apparent theft and retention of highly sensitive defense-related documents, at least those that weren’t seized in the August 6 search. The Washington Post reported that those documents included nuclear secrets of other nations.
It can also continue to investigate his efforts to overturn the presidential election, culminating in his role in the violent insurrection of January 6, keeping in mind the historic holding of a New Mexico state court this September 6 that the 14th Amendment bars all who played such a role from ever again holding public office in the United States.
That said, Cannon’s ruling has to rank high in the annals of the worst reasoned judicial decisions in American history. Even former Trump Attorney General Bill Barr called it “deeply flawed.” If it signals that judicial Trumpism has spread more broadly than we thought, there may be danger ahead to our entire system of equal justice.
Apart from its abysmal reasoning, her ruling gives the Justice Department no good options. The need to prosecute Trump as soon as possible after this November’s midterm elections points to avoiding the delay an appeal could cause and just moving forward with the special master’s document review.
But with Judge Cannon’s order in place, it’s anyone’s guess when a reasonably neutral special master who can be cleared to review top secret material will emerge from the selection process and how expeditiously any such theoretical paragon might proceed. Moreover, any special master is bound to generate fights over specific documents that the judge will then need to resolve, leading to decisions that in turn could be subject to appeal. So appeal-related delays might be in the offing whatever the Justice Department opts to do.
Moreover, leaving Cannon’s order in place would set an abysmal precedent unless we could be assured it would be politely disregarded as an aberrant capitulation to a would-be tyrant.
But for the extreme stacking of the 11th Circuit Court of Appeals with right-wing Trump-appointed judges much like Cannon herself, any competent lawyer would take an immediate appeal.
First and foremost, the decision violates the first principle of the rule of law: that no one is above the law.
Cannon’s opinion screams out that she applies more lenient rules to Donald Trump. She writes, for example, that “the stigma associated with the subject seizure is in a league of its own” due to Trump’s “former position as President of the United States.”
She is acknowledging that none of us would be entitled to a special master or to a special pause in the investigation if we improperly took or held onto sensitive national security materials in our homes, much less a country club with open access to apparent Chinese intelligence agents.
To undermine the rule of law this way requires extending every favor to Trump, including bending facts and breaching fundamental legal rules.
Just take Cannon’s treatment of executive privilege as an example. She excuses Trump’s failure even to assert “executive privilege as to any specific materials” on the bizarre ground that he had been “denied an opportunity to inspect the seized documents” – even though he has possessed them for 19 months at his beachfront resort.
And she blithely concedes that the Presidential Records Act, on which Trump rests his claim to judicial relief, gives the federal courts for the District of Columbia, not Florida, exclusive jurisdiction over executive privilege determinations regarding presidential records like those in this case.
Instead of dismissing the case on that basis, she improperly proceeded to seize jurisdiction and to hold, for the first time ever, that a former president can successfully assert executive privilege not in a dispute with Congress or the Judiciary but with the Executive Branch itself – and over the contrary determination of the current head of that branch, the incumbent president.
To do that, she had to ignore the fact that the executive privilege determination had already been made: the acting National Archivist wrote in a letter to Trump lawyer Evan Corcoran that there was no executive privilege and that it wasn’t even “a close question.” That letter, which the DOJ had submitted to Judge Cannon, made clear that the archivist was writing after consulting with the Justice Department, which speaks in court for the Executive Branch.
Beyond ignoring all that, Cannon took the further unprecedented step of enjoining the Department from using anything seized in the court-approved August 8 search of Mar-a-Lago in its investigation of associated crimes until the Special Master completed review and determined what to do. And she volunteered that any “future indictment, based to any degree on property that ought to be returned, would result in reputational harm” so unique as to justify some further relief – casting a cloud over any future prosecution related to Trump’s Mar-a-Lago crimes!
Remarkably, Trump hadn’t even asked for so sweeping an injunction, much less for a hint about future prosecution; he moved only to bar use of the seized materials pending a special master’s appointment. Courts are not supposed to do more than parties ask. In this case, her doing so likely extended the delay from days to months and opened up questions about whether Trump could ever be held accountable for stealing national secrets!
Even when Congress has authorized federal judicial relief from blatantly unconstitutional police behavior, the Supreme Court has insisted scrupulously that courts not interfere with ongoing criminal investigations and prosecutions absent the most extraordinary showing of irreparable harm, including the clear insufficiency of post-conviction relief. But in this case, Judge Cannon casually bypassed any rigorous examination of the supposed harm Mr. Trump would suffer by having to await the result of the Justice Department’s investigation and challenging the use of any improperly seized evidence if and when it is introduced against him.
In this case, all Judge Cannon could cite as supposedly irreparable injury was the former president’s temporary deprivation of access to the seized items. Along with the government records, the FBI apparently seized Time magazine covers, clothing and other materials to show how they were intermingled insecurely with classified documents. Presumably, the irrelevant materials could be returned upon his request, as were his passports.
To appoint a special master to separate the wheat from the chaff is an extraordinary overreach. On that basis, as Berkeley Law School Professor Orin Kerr has pointed out, we can expect every target of a court approved search and seizure to demand a special master to help maintain access to whatever law enforcement agents seized.
And, as Asha Rangappa, the former FBI counterintelligence special agent and current Yale law school assistant dean has stated, the most bizarre thing is that “neither Trump nor his lawyers contest that he illegally possessed government and classified records! This isn’t even a case where they are protesting his innocence.”
So what is going on here? Let’s start by recognizing that Trump’s lawyers apparently went judge-shopping for Aileen Cannon in hopes of her being assigned the case and granting them the stall tactic they sought. Instead of going to the judge already overseeing the search warrant and located close by Mar-a-Lago, they filed the case 70 miles away – where Judge Cannon sits.
They’ve tried the tactic before, with less success, but this time they hit pay dirt.
She could have seen through the maneuver and transferred the case to the judge familiar with it. But she kept it, giving Trump the delay he sought and more. She also gave him a positive political narrative – a court victory – at a time when many Republicans had gone silent defending him because of the toxicity of his holding in an insecure location the nation’s most sensitive secrets.
To have done Trump these favors on the most transparently vacuous legal rationale leaves one with an obvious conclusion: that the same politicization that has infected the Supreme Court has also spread to the lower courts.
Indeed, anyone paying attention to Trump’s nomination process during his term can’t help suspecting an even greater corrupting phenomenon at work. The road to judicial elevation under Trump was paved by the Federalist Society’s recommendation lists. To qualify, judges must demonstrate via decisions their right wing bona fides.
Our constitutional republic requires that judicial decision making stay within the bounds of common sense, reason, precedent and the rule of law and outside the realm of extremist, results-driven irrationality. When it fails to do so, no explanation suffices short of abject political bias or personal ambition.
With Trump having appointed a wide swath of the federal judiciary, time will tell how far the corruption of law extends beyond this latest and most disturbing judicial intervention in the process of criminal justice. After all, we saw Trump-appointed judges perform well in many of his baseless challenges to the 2020 election.
In the end, Judge Cannon’s ruling may prove to be a one-off, another instance of Trump being treated as a class of one. There is every reason to hope that such treatment will end with a jury verdict in Fulton County, Georgia or in Washington, DC, for Donald Trump’s many crimes against the people of one state and the entire nation.
Laurence H Tribe is the Carl M Loeb University Professor and Professor of Constitutional Law at Harvard Law School
Dennis Aftergut, a former federal prosecutor, is of counsel to Lawyers Defending American Democracy
