US District Judge Aileen Cannon decided to appoint a special master [in Trump’s Mar-a-Lago case] to filter out not just attorney-client records, but anything which might be covered by executive privilege, as well as the former president’s personal property. And for good measure, she ordered the Justice Department to stop using the information it already reviewed in its ongoing criminal investigation.

How can a judge in a civil suit enjoin the federal government from conducting a criminal probe, particularly when there’s been exactly zero finding that prosecutors did anything other than strictly by the books?

But Team Trump’s failure to make a coherent legal argument was no deterrent to Judge Cannon, who filled in all the blanks for them, and even spared them the trouble of going through the hassle of filing a Rule 41 motion for the return of personal property, under the guise of ensuring “at least the appearance of fairness and integrity under the extraordinary circumstances presented.”

“Settled law permits him, as the owner of the premises searched, to object to the seizure as unreasonable,” she tut-tuts, invoking a Fourth Amendment claim never asserted (by the Trump lawyers) and ignoring the fact that such an objection should properly have been lodged with US Magistrate Judge Bruce Reinhart, who approved the original warrant.

The first bit of Trump’s homework that Judge Cannon completes for him is to go through the four-part analysis from Richey v. Smith, 515 F.2d 1239, to justify her own equitable jurisdiction. While conceding that “at least based on the record to date, there has not been a compelling showing of callous disregard for Plaintiff’s constitutional rights,” the court invents “an individual interest in and need for the seized property” and “irreparable injury” from deprivation thereof that was never argued in Trump’s motions and is certainly not established by the evidence on the record. [Above the Law]

It is rare for Republicans and Democrats to agree on anything but this decision by Cannon has brought lawyers of both political persuasions together in a chorus of condemnation for her shoddy legal reasoning and her clear bias for Team Trump. Even former AG Bill Barr has been on Fox News decrying her decision and saying DOJ needs to appeal it.

Who is Judge Cannon?

Judge Cannon was born in Columbia, South America in 1981, and moved to the United States with her family as a child. She is bright- she went to Duke for her undergraduate degree and Michigan for her JD. She had a clerkship, then worked at a well respected law firm, and then served as an Assistant US Attorney in Florida. She got her appointment to the federal bench at the last minute thanks to the Federalist Society and Trump. In the final crazy days of his presidency AFTER he lost the 2020 election, Trump rushed to elevate a bunch of conservative lawyers to federal judgeships before he no longer had the power to get them on the federal bench. Cannon, who is 41 years old now, just barely had the 12 years recommended for appointment to the federal bench. But that youthfulness is what the Republicans have been using as a litmus test for appointments. Those young Federalist Society lawyers will be judges for decades and will influence our country long after Trump is dead and gone.

Judge Cannon got this case supposedly randomly but I cannot help being suspicious about the assignment.

Cannon is the least senior federal judge for the Southern District of Florida, where five of the 16 active judges were appointed by Trump. According to court rules, cases like the special master request are “assigned on a blind rotation basis … to a judge assigned to hear cases in the division to which the case has been assigned.”

What Judge Cannon Did and Didn’t Do

After the original magistrate judge approved the search warrant that gave the FBI permission to search certain areas within Mar-a-Lago, challenges to his decision should have gone back in front of that same judge. Instead, it sure looks like the Trump lawyers went forum shopping. They looked for a venue that might be better for them and chose one, outside of the West Palm Beach area, that had 5 Trump appointees. They must have broken out the champagne when they landed Judge Cannon or found a way to get her assigned. (There’s no proof of shenanigans but I am skeptical about this “random” appointment.)

A less biased judge would probably have told the Trump legal team to go back to the magistrate judge to get a ruling on their request for a special master to be appointed. But she did not do that. That first failing seemed prejudiced in favor of Trump from the start. After that Judge Cannon commented that she was inclined to appoint a special master before she even heard anything from the Justice Department attorneys. That indicated bias as well. And then she ruled in favor of the request for a special master and she gave Trump everything he wanted and then some.

  1. He got a special master assigned even though the DOJ had already reviewed all the documents by then and sorted out the appropriate documents to be returned to Trump. But, OK, that could be argued is a benefit to the DOJ because they can say that the Trump team got to double check their work. So maybe that helps the public to buy into what DOJ is doing.
  2. But then Cannon stopped the DOJ from continuing to work on the criminal case against Trump himself. There was no earthly reason for doing that especially since the DOJ had been remarkably, even amazingly patient with Trump and followed all the rules and then some: first asking nicely for the documents back that he stole, and waiting a long time!! then getting a subpoena and getting some compliance from Trump, but then learning from inside sources that not all of the documents had in fact been turned over which triggered the need for a search of Mar-a-Lago. The scary danger is that any delay in the investigation could be damaging to our country’s safety, OUR safety, to put it bluntly. Now that everyone in the world is aware that the documents were stashed at Mar-a-Lago the FBI is playing catch up as fast as possible trying to figure out who got ahold of them and what damage has been done or could be done.
  3. Judge Cannon also created new laws just for Trump as a former president. She concocts an idea that a former president might suffer “irreparable injury” in the form of reputational damage if the stuff that belongs to him is not returned to him. But wait just a minute here. The stuff we are talking about is NOT HIS. By definition. It does not belong to Trump at all. He limped off with national security secret documents when he left his last job as president and he took it with him to his semi-private club where there are not only no SCIFs but there are an abundance of people who could be foreign spies who could (maybe already have) figure out a way to get to see our top secrets simply by paying to become members of Mar-a-Lago, (a mere $200,000) or coming in as a guest of a member.  $200,000.00 is peanuts when it comes to documents worth millions or billions to a foreign malign government. Many of these documents belong in the National Archives and were created by our intelligence services. There is no way they could be subject to attorney-client privilege because they were not created by Trump and his lawyers. About 100 are secret, top secret, and so top secret that you need a special clearance level to even look at them and you have to view them in a special place called a SCIF where you go alone, without your cell phone or your fit bit or any other device that could be used to film or replicate the information in the document. If any other person other than Donald Trump had limped off with even ONE of these top secret documents he or she would already be in a jail cell.
  4. Judge Cannon also gave Trump what he probably wanted most of all–delay. Trump always plays the delay card any time he is in legal trouble. It has worked for him in the past. It might work again this time.

The DOJ Appeals Part of This Ruling 

DOJ has filed an appeal asking for a stay of a part of the ruling by Judge Cannon. What this means is that the DOJ is asking the judge to reconsider part of her ruling. Specifically DOJ is asking her to remove the 100 most top secret documents from her ruling that enjoins/stops them from continuing their criminal investigation. The DOJ is saying go ahead and include all the other documents in the review by a special master but exclude the super top secret ones from the review and the prohibition so that we can continue to figure out the damage that has been done with respect to those documents and we can still build our case (against Donald Trump).

That is essentially an off ramp for Judge Cannon.  It would be a good idea for Judge Cannon to go with the suggestion DOJ offers. It would help her avoid the embarrassment of being overturned by the appeals court and allow the FBI to keep working the case without a hiatus that could seriously imperil our country. If she does not take this opportunity to revise her decision, we will have even more conclusive proof that she is not the neutral arbiter of justice a judge should strive to be, but another Trump sycophant. It would also be more evidence that the Federalist Society has successfully damaged our judicial system by injecting it with political players instead of fair and impartial judges. DOJ gave Judge Cannon an off ramp. The question is whether she will take it.