A Trump Appointee Hands Down a Troubling Ruling. Here’s the Damage Report. (We’ll Be Fine.)

Images courtesy of MSNBC

Over the Monday holiday, Federal district court judge Aileen Cannon in the Southern District of Florida issued an order on Trump’s request for a so-called “special master” to review documents that were seized from Mar-a-Lago by the FBI. Part of the ruling—the section that appoints the special master—was expected and surprised no one. It was the second part—where Judge Cannon temporarily enjoined the pending criminal investigation from using any documents seized—that raised alarm bells at the Department of Justice and among legal observers.

So how bad was this ruling for the case? Or conversely, how good was it for Trump? From where I sit, the ruling creates a delay while the Department weighs its options and likely seeks to undo the most unsupportable parts of the opinion on appeal. It also creates some confusion around how it’s supposed to work, given that part of the executive branch is enjoined from using the documents while another apparently is not. Delay and confusion are the hallmarks of the former administration and its defense against a torrent of investigations and possible charges, so in this sense they have scored a victory, though it is not the body blow that Trump’s loyalists would like to believe. Let’s break it down by answering some of the most common questions I’ve seen.

What does the order actually do?

There are two main parts to the order. First, as expected, the judge ordered that a special master be appointed to “review the seized property, manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property.” Note that the special master will only review the property that was seized, not any of the documents that were turned over by Trump after NARA requested them (this is the first 15 boxes) or any of the documents that were in the taped Redweld folder provided directly to Jay Bratt of the Department’s Counterintelligence section when he visited Mar-a-Lago in June. The special master will be reviewing for “privilege” which includes, apparently, not just attorney-client privilege, which is normal in such matters though coming very late in the process, but also “executive privilege” which is a real headscratcher for reasons I’ll explain below.

Second, and far more controversially, she temporarily halted the government “from further review and use of any of the materials seized from Plaintiff’s residence on August 8, 2022, for criminal investigative purposes pending resolution of the special master’s review process…” However, she qualified that, despite this temporary injunction, the “Government may continue to review and use the materials seized for purposes of intelligence classification and national security assessments.” 

So is the entire investigation on hold?

No. There are two big points to understand about the injunction part of the order. First, and importantly, it only applies to the documents seized on August 8, 2022 and not to anything turned over before. Remember, NARA found top secret intelligence documents in the 15 boxes it sought for over a year to retrieve, so the removal and possession parts of the applicable criminal statutes are already more or less established and not at issue. The discovery by NARA led to a criminal referral to the FBI, and then to the grand jury subpoena. Jay Bratt and his team went down to Mar-a-Lago and got another Redweld folder of documents and received written assurances that this was it, there was nothing more. That, by the way, was a demonstrably false statement, putting Trump lawyers in a big pickle and helping to establish the “willfull” intent of the former president to remove and hold on to documents he had no right to possess. 

The FBI can still continue to use any of the documents it recovered before the search as part of its ongoing criminal investigation, even while the question of “privilege” is sorted out (more on that below). Moreover, the FBI already has reviewed all of the material seized on August 8, 2022, so it’s hardly clear how the government is to expunge that from the criminal investigation entirely, especially from the very minds of the investigators. This underscores why it is customary to immediately request a special master be appointed when privilege is a concern, rather than to wait and request one weeks after the fact.

Second, there is an important national security risk assessment that is underway at the Office of the Director of National Intelligence (ODNI) to determine the damage that the former president caused to our intelligence networks and national defense. The judge didn’t dare put a halt to that at least. But this presents an obvious logistical question. People like Merrick Garland and Jay Bratt, as heads of the Department and the Counterintelligence section respectively, would be needed as part of that national security assessment and the ongoing criminal investigation. Again, you can’t really wall someone off from themselves. Moreover, as MSNBC analyst Matthew Miller noted, the idea that one part of the Executive Branch can review and assess documents while another part cannot based on a claim of “executive privilege” is incoherent in the extreme.

Will the ruling be appealed?

Most likely, yes, though it’s not clear they will appeal the entirety of it. If the effect of the order is to cause delay, then as former DOJ veteran prosecutor Andrew Weissmann has suggested, the Department should proceed with getting a special master appointed to get that process going, even while it appeals the very egregious part of the ruling that put a halt to any part of their criminal investigation that uses materials seized on August 8. 

No one really wants to see that ruling stand because of its broad implications for disrupting federal criminal cases. However, obtaining a final disposition on the ruling as it relates to a criminal investigation injunction might take some time, and it’s possible that the judge will lift the injunction once the special master completes the review for privilege, making the ruling moot as to that point. There is also some concern that the 11th Circuit is dominated by Trump appointees, but as discussed below, even very conservative justices might not want to let this particular tail wag the entire criminal procedure dog.

If they do appeal, what are the chances?

There are many very bad legal analyses and conclusions in the order, so it is definitely vulnerable on appeal. I won’t get into some of the more technical arguments like lack of standing and lack of jurisdiction, except to say Judge Cannon’s order is vulnerable on these points on appeal, too.

As mentioned above, the part with the highest stakes is her injunction of the criminal investigation, which as far as I know has never happened before by order of a civil court assessing a question of something like a special master. As law professor Orin Kerr of UC Berkeley aptly noted, the D.C. Circuit court held in Deavor v. Seymour back in 1987 that “Prospective defendants cannot, by bringing ancillary equitable proceedings, circumvent federal criminal procedure.” 

Translation: you can’t sue in a civil court to obtain things like a Special Master and an injunction on the criminal investigation, as this would be an end-run around the rules of criminal court. Yet this is precisely what Trump did, and letting him get away with it through this bad court order would open the door to all kinds of mischief by other defendants.

As the court in Deavor explained,

Congress has established a comprehensive set of rules governing federal criminal prosecutions—the Federal Rules of Criminal Procedure. These rules provide adequate, although limited, opportunities for defendants to challenge shortcomings in prosecutorial authority. The final judgment rule, moreover, generally prevents defendants from bringing appeals until after conviction. We cannot allow Deaver to avoid these rules—and thereby encourage a flood of disruptive civil litigation—by bringing his constitutional defense in an independent civil suit.

Didn’t the judge also get executive privilege wrong?

Very likely. Judge Cannon’s view of “executive privilege,” when asserted by a former president, is at odds with long standing and even recent Supreme Court precedent that confirms that the privilege generally belongs to the current president, not the former. This also isn’t like a typical case, where the White House, on behalf of one branch of government, is asserting executive privilege against another, such as Congress. Rather, the assertion here is by a former member of the executive branch against the current executive. This abnormal posture creates convoluted analyses and results in absurdities, such as that the documents may be reviewed for national security by one part of the executive branch but not by another.

And what precisely is the interest Trump has in protecting his prior communications with others in his former administration? This question is especially important where that assertion might prevent the proper functioning of something as critical as criminal justice. The “interest” Judge Cannon asserts in the order is a simply reputational one for Trump against having his property searched and potentially having an indictment issue. “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,” the judge wrote. “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 appears to have overlooked the fact that it was Trump who publicly announced the FBI action, which might otherwise have flown under the radar and not impacted his reputation. Besides, anyone who might be indicted is naturally worried about injury to their reputation. If this were a legally recognizable interest, that would mean anyone could assert it against the government in a criminal case, yet no one ever has because it’s frankly ridiculous. As commentator and former FBI special agent Asha Rangappa quipped, 

The idea that an indictment would cause “irreparable reputational harm” is…literally true for anyone, not just POTUS? The burden is on government to prove it…which is why DOJ wouldn’t indict without a strong evidentiary case. 

Yet the judge made no bones about admitting that she views this case as special, that Trump is special, and therefore he ought to get special treatment. That to many is the most distasteful aspect of her ruling.

So should we be worried?

We should take a breath and largely ignore the breathless coverage of what amounts to a sideshow legal battle and view the order for what it is: an ill-considered, poorly reasoned, and legally vulnerable opinion that delays a portion of the investigation but does not halt it from moving forward generally. We are at a likely lull in any event with respect to public news of the investigation because of an unwritten rule to hold off on any announcements or indictments so close to an election, especially when a de facto party leader like Trump has staked his political future on many race endorsements. As discussed above, the DOJ already has what it needs to prove that Trump was in possession of sensitive government documents he had no right to have. The question now is whether he has a defense (Inadvertent? Declassified? Planted?) that can be explored with other witnesses based on the documents already turned over by Trump and his attorneys.

The most troubling part of all this may be the idea that a federal judge, a Federalist Society member who was recommended to the bench by Sen. Marco Rubio and appointed by Trump at age 38, just 12 years out of law school, would bend over backwards and issue an order that flies in the face of established law in order to protect Trump’s perceived interests. It should serve as a warning sign that our federal judiciary is deeply infiltrated by Trump loyalists who can act like landmines in our legal system for those seeking accountability by the former president and his cronies. 

The New York Times interviewed seven legal scholars on what they thought of Judge Cannon’s order, and all of them were left shaking their heads. I leave you with a list of their reactions:

• “an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation.”

• “Enjoining the ongoing criminal investigation is simply untenable.”

• “Judge Cannon had a reasonable path she could have taken —to appoint a special master to review documents for attorney-client privilege and allow the criminal investigation to continue otherwise. Instead, she chose a radical path.”

• “The opinion seems oblivious to the nature of executive privilege.”

• “There is this odd situation where one part of the executive branch can use the materials and another not.”

• “This court is giving special considerations to the former president that ordinary, everyday citizens do not receive.”

• “To any lawyer with serious federal criminal court experience who is being honest, this ruling is laughably bad, and the written justification is even flimsier. Donald Trump is getting something no one else ever gets in federal court, he’s getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he is being persecuted, when he is being privileged.”