Judge Cannon Denies DOJ Motion For Stay, Sends Mash Note To Trump In Warrant Case

Whatever shitshow disgrace you were expecting Judge Aileen Cannon’s order in the Mar-a-Lago case, the reality is worse.

Last night, the Trump appointee rejected the Justice Department’s offer of a climb-down from her previous unworkable position of denying the government access to its own classified documents. Instead, she offered an absolute dog’s breakfast of a denial of stay, coupled with a special master order which tasks Judge Raymond Dearie with adjudicating claims of executive privilege, in direct contravention of the Presidential Records Act, which locates those disputes in the US District Court in DC.

Judge Cannon’s basic premise is that the government cannot be trusted in any of its representations to the court — a bizarre position from a Federalist Society nutter who’s been mainlining the theory of the unitary executive since birth. Prosecutors submitted a sworn declaration from Alan Kohler, the assistant director of the FBI’s counterintelligence division attesting that the national security and criminal investigations could not be bifurcated, in part because the same personnel are working both sides of the case. The court scoffs that prosecutors “rely heavily on hypothetical scenarios and generalized explanations that do not establish irreparable injury” and assures the parties that “to the extent that the Security Assessments truly are, in fact, inextricable from criminal investigative use of the seized materials, the Court makes clear that the September 5 Order does not enjoin the Government from taking actions necessary for the Security Assessments.”

This is hardly reassuring from the same judge who castigated the government for failing to remove the FBI agents who flagged a privileged document misidentified by the taint team from the entire investigation. What are the odds that Judge Cannon is going to deem any participation by the FBI in the security assessment as violating her order and thus tainting any future prosecution?

But more to the point, the court entirely dismisses the government’s characterization of the classified documents as classified — despite the fact that they bore readily identifiable classification markings when they left the White House.

The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them. The second is that Plaintiff has no plausible claim of privilege as to any of these documents [ECF No. 69 p. 7 (categorically asserting that the “classified records at issue in this Motion . . . do not include personal records or potentially privileged communications”)]. The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion.

Is she suggesting that the government seized the documents and then affixed classified markings to them later?  And who might that neutral third party be adjudicating those yet to be disputed classification claims?

Because Judge Dearie, whom Judge Cannon appointed as special master, has no remit to make judgments as to classification status. And of course he could do no such thing, since classification is by definition the province of the executive branch. So if President Biden says a document is classified, it is classified, irrespective of any “review” by a third party, neutral or otherwise. (Spoiler alert: It’s otherwise.)

And anyway, a document bearing a classified marking could never be attorney-client privileged, nor could it be magically transformed into personal property. It is definitionally government property in control of the incumbent president — there is no justification or precedent for denying the government access to it, and neither the court nor Trump’s lawyers cite any.

Indeed, Trump’s lawyers have gestured vaguely in the direction of their client’s claims of secret telepathic declassification, without making any actual claim that he did such a thing. Nor are they submitting any sworn declarations to that effect, despite Trump saying that his former national security lackey Kash Patel, an officer of the court, witnessed him lay hands on the documents at issue and declassify them. But that’s plenty good enough for Judge Cannon, who fills in the blanks by arguing that “Plaintiff has not had a meaningful ability to concretize his position with respect to the seized materials given (1) the ex parte nature of the approved filter protocol, (2) the relatively generalized nature of the Government’s “Detailed Property Inventory.”

Please pause to appreciate the irony of the court’s side eye at the “ex parte nature” of the DOJ’s filter team — a practice which is bog-freakin’-standard, as Judge Cannon, a former AUSA in the Southern District of Florida, knows damn well. This irony is only compounded by the gobbledygook provision in her own order regarding ex parte comms between the parties and Special Master Dearie.

The Special Master shall have access to individuals, information, documents, and materials relevant to the orders of the Court that are required for the performance of the Special Master’s duties, subject to the terms of this Order. Such materials shall be provided to the Special Master on an ex parte basis as the Special Master sees fit. The Special Master may communicate ex parte with the Court or either party to facilitate the review; provided, however, that all final decisions will be served simultaneously on both parties to allow either party to seek the Court’s review.

In a normal world, you’d probably read this as the court authorizing replies to any ex parte queries initiated by the special master. But in light of Trump’s request that the court authorize unlimited back channeling from his side, it’s just ambiguous enough to allow Trump’s lawyers to credibly interpret it as they wish.

The court similarly yadda yadda yadda’s the highly sensitive nature of the classified document at issue, ordering the government to “Make available for inspection by Plaintiff’s counsel, with controlled access conditions (including necessary clearance requirements) and under the supervision of the Special Master, the documents marked as classified and the papers attached to such documents.” How the hell are Trump’s lawyers going to get security clearance to look at nuclear documents?

And while we’re on the subject of doing your boyfriend’s trig homework, the court has tasked the special master with “Evaluating claims for return of property under Rule 41(g) of the Federal Rules of Criminal Procedure.” First of all, Trump’s lawyers never filed a Rule 41 Motion — they demanded a special master to sort through the evidence so that they might file one in the future. Second, Rule 41 is a rule of CRIMINAL procedure, and this is a CIVIL case. And while we may occasionally make that error ourselves, we are not a federal judge with lifetime tenure.

The court further tasks the master with “conducting a privilege review of the Seized Materials and making recommendations to the Court as to any privilege disputes between the parties (including any formal assertions of executive privilege).” She intends to arrogate for herself the right to make executive privilege determinations, blocking disclosure to the Justice Department of any document which might help it prosecute Trump for mishandling classified documents, obstructing justice, and withholding government property. Or, at the very least, she’ll do her damnedest to drag it out as long as possible, in hopes that the government won’t prosecute Trump if and when he declares himself a candidate for president again after the midterms.

With a few minor exceptions, she gave the guy who put her on the bench everything he asked for. He’s not going to get to slow down the process by submitting every seized item to the master, even those as to which there is no dispute between the parties, and he’ll have to pick up the whole tab for this ordeal. But he’s getting a commitment from Judge Cannon to gum up this investigation for as long as necessary, without any need to impose the rules which apply to everyone else. In the very first page of her denial, she refers to the “extraordinary circumstances presented” before going on to describe the entirely ordinary procedures employed by the government as somehow nefarious and inadequate.

“[E]venhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice,” she concludes. “Based on the nature of this action, the principles of equity require the Court to consider the specific context at issue, and that consideration is inherently impacted by the position formerly held by Plaintiff.”

Kinda gives the entire game away, huh?

Trump v. United States [Docket via Court Listener]

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Liz Dye lives in Baltimore where she writes about law and politics.