A Florida federal judge named to the bench by Donald Trump has barred the Department of Justice from using the thousands of government-owned documents seized during the 8 August search of his property to further an ongoing criminal investigation into the ex-president.
The Monday order by US District Judge Aileen Cannon blocks — temporarily — the federal government’s law enforcement apparatus from acting on which most legal experts say is overwhelming evidence that Mr Trump violated several federal laws laying out criminal penalties for mishandling national defence information and obstructing justice.
The government will not be able to use any evidence seized at Mr Trump’s Mar-a-Lago residence until a third-party special master determines whether each item seized may be shielded by attorney client or executive privilege, even though Mr Trump is no longer president and cannot shield records from the executive branch. The process to appoint the special master and the review of documents could take weeks or months, giving Mr Trump a reprieve from the most serious legal jeopardy he has ever faced.
Though legal experts and the government have said a special master was not warranted after Mr Trump demanded one two weeks following the search of his home, Judge Cannon said she was granting his request in part because of the “undeniably unprecedented nature of the search of a former President’s residence,” the “importance of maintaining institutional trust” in the justice system, and what she described as “the interest in ensuring the integrity of an orderly process amidst swirling allegations of bias and media leaks”.
Judge Cannon justified the decision by citing Mr Trump’s claim that he would suffer irreparable injury from “the threat of future prosecution and the serious, often indelible stigma associated therewith”.
“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. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude,” she wrote.
While her order enjoins the criminal investigation into the ex-president from going forward, she did allow Intelligence Community officials to continue an ongoing review into whether Mr Trump’s hoarding of sensitive national defence information at his Palm Beach club endangered national security.
The Independent has previously reported that Mr Trump’s possession of classified documents pertaining to human intelligence sources and signals intelligence collection will force the US intelligence community to shutter long-running operations and extract human sources from hostile environments because officials will have to assume that anything Mr Trump hoarded will have already been seen by hostile actors.
Although the Justice Department can appeal her ruling, as long as it in place it will protect the former president from being indicted for any crime based on evidence found during the search of his home.
Legal experts quickly condemned the decision as having little grounding in fact or case law.
Steve Vladeck, a professor at the University of Texas School of Law specialising in the federal court system, called the Trump-appointed judge’s decision “preposterous,” particularly the section where she enjoins the government from using materials it already has seized from Mr Trump.
“So much for the hope that Judge Cannon was bending over backwards to look like she was accommodating Trump. This is twisting the law into a pretzel in ways that are as unsupported in precedent as they are unlikely to be followed in any future cases,” he wrote, adding that it was “just a sad day for the courts”.
Ted Boutros, a veteran attorney and partner at Gibson, Dunn, said the judge’s order was “riddled with fundamental legal errors” and called it “the opposite of judicial restraint”.
Another veteran of federal court practice, ex-Wachtell Lipton partner George Conway, also weighed in on Twitter to call the judge’s decision “absolutely nuts”.
The Florida judge’s order came just two days after the man who named her to the federal bench claimed the Department of Justice probe into whether he endangered the nation he once led by hoarding stolen secret documents railed against the Department of Justice and FBI during a political rally in Wikes Barre, Pennsylvania.
Mr Trump condemned the lawful search of his property as “shameful” and “a travesty of justice,” and accused the FBI of “trying to destroy our country”on behalf of Democrats by investigating whether he committed any number of serious federal crimes.
“Whether through activist attorney generals ... local Democrat DAs, county prosecutors, congressional committees or federal agencies, the radical Democrats are engaging in a desperate attempt to keep me from returning to the White House,” Mr Trump said, casting the investigations into whether he violated federal laws meant to protect the nation’s national defence secrets or state laws against election tampering as illegitimate and nakedly political.
According to court documents, FBI agents found over 10,000 non-classified government documents spread across 27 boxes when they searched the twice-impeached ex-president’s home and office at his Mar-a-Lago country club.
Agents also discovered more than 100 “unique documents with classification markings”, including three stored in Mr Trump’s desk. Classification levels ranged from confidential – the lowest level of classification in the US system – to the highest, top secret.
