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What the judge got wrong in the latest Mar-a-Lago ruling

The Trump-appointed judge in the Mar-a-Lago case had an opportunity to do the right thing. She chose not to take advantage of that opportunity.


It was early last week when a Trump-appointed judge in Florida gave Donald Trump and his lawyers effectively everything they wanted in the Mar-a-Lago scandal: U.S. District Court Judge Aileen Cannon approved a request for a special master and blocked parts of the Justice Department’s ongoing investigation.

As we’ve discussed, among legal experts from the left, right and center, a consensus formed quickly: Cannon’s decision was ridiculous. Prominent legal voices used words like “nutty,” “preposterous,” and “oblivious” when describing the Labor Day ruling.

At the heart of the criticisms was a debate over executive privilege and the idea that a former president could block the executive branch from reviewing and using its own materials. On this point, Cannon’s ruling from last week raised questions as to whether the conservative jurist even understood the concept.

The Justice Department, however, gave the judge a convenient way out: Prosecutors asked that when Cannon made a decision about the special master, she could also take the opportunity to narrow the scope of the arbiter’s purview, limiting it to attorney-client privilege. This would allow her to save face, honor the law, and allow federal law enforcement to get back to work.

It was an opportunity Cannon chose to ignore. NBC News reported overnight:

A federal judge appointed a special master to review documents the FBI seized from former President Donald Trump’s Florida estate while denying the Justice Department continued access to roughly 100 classified documents for use in its criminal investigation.... The Justice Department had asked for a stay of the judge’s previous motion so it could continue to review the seized documents for use in a criminal investigation. Cannon denied that request, saying she isn’t prepared to accept all of the department’s assertions at face value without the special master review process.

In her 10-page decision, the Trump-appointed judge handed the former president and his lawyers victories on multiple fronts. Cannon approved Raymond Dearie, a senior U.S. district judge for the Eastern District of New York, to serve as the special master, after Team Trump requested him. The Justice Department asked that the review wrap up in late October, but Cannon gave Dearie a Nov. 30 deadline, which may yet be extended.

How this process is supposed to unfold remains something of a mystery: Politico noted, “Left unexplained is how Dearie is supposed to adjudicate any claims of executive privilege by a former president against the sitting executive branch. Supreme Court precedent tips heavily against any ruling for Trump on that question.”

This was a reference to a 1988 Supreme Court ruling in Department of the Navy v. Egan, which said, “For ‘reasons ... too obvious to call for enlarged discussion,’” determinations about who should be allowed to see classified documents “must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.”

As for federal law enforcement’s desire to use the materials it already has, the judge seemed eager to try and thread an unnecessary needle. From the NBC News report:

Cannon on Thursday ... insisted that her order didn’t restrict the government from continuing to review the seized materials for intelligence classification and national security assessments or from briefing members of Congress. The order, she said, blocked the government “from further use of the content of the seized materials for criminal investigative purposes,” such as presenting the materials to a grand jury and using them for witness interviews for a criminal investigation pending Dearie’s recommendations.

It’s an order that suggests the Justice Department can use the materials, but it can’t use the materials.

Cannon did agree that Team Trump would have to pay for the special master’s work — the Republican had asked that the costs be split — though the expenses are expected to be modest, so this wasn’t much of a defeat.

It’s unlikely, however, that her decision will be the final word on the subject: The Justice Department said in a court filing last week that it would appeal Cannon’s Labor Day order to the 11th U.S. Circuit Court of Appeals. Whether that appeal will succeed is an open question: Republican-appointed judges are in the majority at the 11th Circuit.