After the raid on Donald Trump, a court on Monday granted the ex-president’s request for a neutral examiner of the confiscated documents. Legal experts consider the reasoning of the judge outrageous.
For Donald Trump, it was the first piece of good news in the Mar-a-Lago affair. Judge Aileen Cannon announced in writing on Monday that the documents confiscated from the ex-president’s estate would be examined by a special representative – and that the US authorities would stop their sighting until then. For many legal experts, however, the decision of the 41-year-old from Florida appointed by Trump in 2020 is a hair-raising misjudgment.
“This was an unprecedented intervention by a federal district judge amid an ongoing criminal and security investigation,” University of Texas law professor Stephen I. Vladeck commented on Cannon’s decision. And the CNN analyst and former federal prosecutor: “The judge’s decision appears to many legal experts, including me, as extremely weak in its legal analysis.”
Donald Trump had requested “Special Master” for FBI investigations
Cannon on Monday upheld a lawsuit filed by Trump’s legal team and ordered the appointment of a neutral special agent to review the more than 11,000 government records the FBI seized in Mar-a-Lago on Aug. 8 and investigate “requests for his return.” target. The judge allowed the so-called Special Master to filter not only materials that may be subject to attorney-client privilege, but also documents that fall under executive privilege. Executive privilege is the right of a US president to keep certain information about the activities of his office secret from Congress or the judiciary. It is usually used in the interests of national security or to keep private government talks confidential and cannot be cited for personal reasons.
Cannon also barred federal prosecutors from further examining and investigative use of the seized materials until the Special Master completed his work. At the same time, she granted the National Intelligence Agency an exception: she may continue to examine and use the documents “for the purposes of intelligence classification and the assessment of national security.”
From “strange” to “unsustainable”: legal experts criticize the judge’s verdict
The ban on investigation and use and the supposed division of labor — the separation between “investigation purposes” and a “national safety assessment” — meet with a lack of understanding among experts. “It’s impossible to reconcile these two decisions,” said Jamie Gorelick, deputy attorney general under President Bill Clinton.
David Alan Sklansky, law professor at Stanford University, emphasizes in the “New York Times” that he is glad that the work of the secret service agency can be continued in view of its importance. However, there is an inherent contradiction in allowing law enforcement to use the files for that purpose while preventing them from using them for an active criminal investigation. “It’s an odd situation where part of the executive branch can use the material and another part can’t.”
Paul Rosenzweig, a former prosecutor and Homeland Security official, finds harsher words in the newspaper. It is outrageous to prevent the Justice Department from questioning witnesses on government files, many of which are marked as classified and federal agents have already reviewed them. “This seems to me to be a truly unprecedented decision by a judge,” Rosenzweig said. “Stopping the ongoing criminal investigation is simply untenable.”
Many experts also find it questionable that Cannon cited executive privilege as an argument in her decision. After all, Trump is no longer president, but a private individual, and it’s about documents that belong to the federal government, not Trump. The judge “doesn’t seem to understand the essence of executive privilege,” quoted the New York Times as saying by legal scholar Peter Shane. There is no basis for them to extend a special representative’s authority to review materials that may also fall under executive privilege. This privilege is normally used to protect internal executive branch deliberations from disclosure to outsiders, the newspaper writes. However, the Justice Department is itself part of the executive branch, and no court has ever ruled that a former president can invoke the privilege of keeping documents from his term of office away from the executive branch itself.
Even Trump’s former attorney general, William Barr, only shakes his head at Cannon’s verdict: The judge avoided the question of whether the ex-president’s possible claim to executive privilege could ever trump the incumbent president’s repeal of the same, Barr said. “The law here, I think, says pretty clearly that the Justice Department should be able to review these documents.”
Law professor: “This verdict is ridiculously bad”
Cannon also justified her appointment of a special counsel with the potential damage Trump might otherwise incur. “In addition to the fact that important personal documents may be withheld from him, which alone represents real damage,” the 76-year-old faces “unquantifiable potential damage from the improper disclosure of sensitive information to the public,” the judge wrote hinted in a footnote that the Justice Department could release the files to reporters.
Cannon highlighted Trump’s status as a former president. “Due to plaintiff’s previous position as President of the United States, the stigma associated with the confiscation is in a league of its own,” she wrote. “A future prosecution that relies to any degree on property that was intended to be returned would result in image damage on a whole different scale.”
Ronald S. Sullivan Jr., a professor at Harvard Law School, calls the judge’s reasoning “thin at best” in the “New York Times” and gives “undue weight” to the fact that Trump is a former president. “I find that deeply problematic,” he explains, stressing that the criminal justice system should treat everyone equally. “This court gives special consideration to the former President that ordinary, everyday citizens do not receive.”
Samuel W. Buell, a law professor at Duke University, agrees with Sullivan in the paper. “For any honest attorney with experience in federal criminal courts, this verdict is ridiculously bad, and the written justification is even flimsier,” the newspaper quoted him as saying. “Donald Trump gets something no one else gets in federal court, he gets for no good reason.”
Former Assistant Attorney General Neal Katyal even called Cannon’s legal analysis “terrible” and “awful” and etched: “Honestly, any of my first-year law students would have written a better opinion.” And Andrew Weissman, a longtime Justice Department veteran and legal analyst at MSNBC, called the ruling “lawless” and “insane.”
Trump’s ex-attorney general Barr, like many legal experts, recommends that the Justice Department take action against Cannon’s decision: “I think the verdict was wrong and I think the government should appeal it. It’s very flawed in many ways. I don’t think so that the appointment of a Special Master will endure.”
The ministry has yet to decide whether to follow Barr’s advice. Maybe it doesn’t share his optimism either. Because an appeal would be heard by the 11th Circuit Court of Appeals in Atlanta, Georgia – and six of the eleven judges there were appointed by Trump.
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