Special Master Special Treatment
Judge Aileen Cannon’s order enjoining the use of documents seized at Mar-A-Lago until a Special Master reviews them disturbed me so much that I couldn't fall asleep Monday night—which probably says more about me than her. It’s not because I think it will ultimately derail DOJ from doing whatever it intends in terms of criminal prosecution, which at this time is unknown.1 I was more agitated at the horrible jurisprudence, including for the following reasons:
1. The most unprecedented aspect of the ruling is that while the Special Master checks over DOJ's work, DOJ has to stop using the seized documents in a criminal investigation. We should remember that we can't be sure yet that the criming has stopped—the search warrant only covered MAL because presumably that's the location that DOJ had sufficient information to support probably cause for a warrant. That doesn't mean it's the only place where stolen documents were/are stored—after all, folders with classified markings were found empty at MAL. Even if everything has stopped, it's an egregious, possibly unconstitutional, use of judicial power to stop a criminal investigation, especially about such a serious matter. I don't think there's any chance an indictment will come down before the November election, but that doesn't mean that DOJ shouldn't keep advancing its investigation of this reasonably complicated case during that time, which requires numerous witnesses to be questioned about their knowledge about and actions regarding thousands of documents. Letting that investigation go forward does not deprive Trump of the opportunity to challenge the evidence gathered later, at the same stage that normal criminal defendants do—after an indictment.
2. The most offensive aspect of the ruling is Cannon's rationalization that Trump's reputational risks from any publicity about the investigation (which to this point Trump has courted), or possible indictment, give him a right to this SM review and injunction of the investigation that ordinary subjects (really, any subjects) of investigations do not get. I am fine with the idea that courts take special care, given the unique aspects of a search and possible prosecution of a President, that he is not being singled out because of his political status. But Cannon has done the opposite, coming up with rules specifically for Trump (or being most charitable, similar high profile public figures), despite a record that DOJ's conduct toward him has been beyond reproach, indeed, solicitous of the President's status by proceeding so methodically to collect documents before being left with no choice but to conduct the search. Every subject of a criminal investigation is exposed to reputational damage from an investigation or prosecution, but Cannon's rhetoric suggests a "Rule of 1" treatment for this particular one.
3. The stupidest aspect of the ruling is Cannon's decision that the SM review should cover executive privilege. She won't come flat out and say that Trump has executive privilege rights relative to the current executive (in the form of DOJ and the Archives), but is delaying this investigation so that the SM can decide whether there are EP documents. In all likelihood, there *are* some EP documents among the classified, stolen documents--those are among the documents that will have the *strongest* case as being Presidential Records that are the property of the people, to be held by the Archives, and accessible to the current executive. Imagine a memo from John Bolton recommending that we bomb Iran's nuclear sites and setting forth the operations plan for how to do it, including where the sites are, how we know, and what the battle plan would be. A document of that kind would be clearly EP, clearly Top Secret, and clearly could not belong to a former President, holding them in an unsecure location. The current executive may actually need/have use for such a document for its own contingency planning. If the SM finds such a memo to be EP, what would follow—that Trump gets it back? That's insane. It's possible, although unlikely, that Trump would have an argument about whether such a document can be entered into evidence against him, but that's an argument that becomes ripe at trial, not to stop an investigation.
It seems nearly unanimous in the national security legal community that this ruling was egregiously wrong, whether it's experienced practitioners and academics or latest reputation-launderer Bill Barr. The most cynical version of why Judge Cannon did this is pure loyalty to the President that appointed her, regardless of the law. A less cynical version is that she brings her political biases with her—as probably many judges, across the political spectrum, do—and that she then exercised poor judgment and shoddy analysis. She certainly has the baseline academic and experience qualifications to be a judge, but she is still pretty young (41) and like most 41 year old lawyers has probably had some very deep experiences in a few areas, and almost none in others. I was 38 when I tried a very high profile case, and while I was a reasonably accomplished lawyer, there were still many things I didn't know or reflexively think of. What distinguishes my situation from Judge Cannon's is that I was part of a group of lawyers, some very experienced, to bounce ideas and judgments back and forth with. District court judges' only "colleagues" are their clerks, who are typically young, academically accomplished, and completely inexperienced—with more blind spots than "sight spots" at that early juncture of their career. That certainly describes me when I was a district court clerk. I have to think that if Judge Cannon had a faculty lounge discussion with her district court colleagues about how to decide the case, the consensus would have been for either no SM or one with the limited task of reviewing DOJ's AC privilege decisions, not the order she entered. But that's not typically how trial judges operate.
DOJ has appealed Judge Cannon’s order and in the meantime offered her a face-saving off ramp: allowing the investigation to go forward, using the classified documents that Trump can’t possibly claim ownership of, while the rest of her order goes into effect. Perhaps Judge Cannon’s press clippings will provide her the wise counsel she was otherwise lacking and cause her to rein in her wildly overreaching order.
Trump may be increasing the chance he will be prosecuted by forcing DOJ to put into the public record more and more information about his obvious criminal misconduct—the more the public knows about how egregious the document theft and obstruction was, including "need to know" information about a foreign country's nuclear program, the harder it is for DOJ to justify limiting its actions to document recovery only.