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- September 7, 2022
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When the FBI raided Donald Trump’s private resort and residence last month, after obtaining a search warrant based on probable cause that they’d find evidence of one or more crimes, it was presumably difficult for people to resist fantasizing that the Feds would soon arrest the former president and perp-walk him out of the place. That fantasy, we’re guessing, likely involved the 45th president trying to wriggle out of handcuffs while screaming ”It was Melania!”, before being tased by an agent on the scene. It likely also included— and again, we’re just guessing here!—him being charged and found guilty of the crimes cited by the government, plus a few others we didn’t even expect, like selling counterfeit Louis Vuitton bags and smuggling exotic lizards into the country, the latter of which would emerge he undertook with Jared Kushner. Naturally, this fantasy would also include the former president being sentenced to numerous years in prison, and a hysterical Don Jr. and Eric Trump telling reporters outside the courthouse of their plans to go to law school so they could represent their father on appeal.
Obviously, all of this could still happen. On Monday, though, such dreams became somewhat less likely after a judge threw the ex-president an outrageous, legally-suspect bone.
That bone came courtesy of Judge Aileen Cannon, who granted Trump’s request for a special master to review the 11,000 government documents seized from Mar-a-Lago on August 8 and blocked prosecutors from continuing to use the documents in their criminal investigation until that review is complete. The absurdly deferential ruling was based on Team Trump’s claims that some of the materials are covered by “executive privilege,” i.e., their go-to argument whenever the ex-president has done something that seems like it might be illegal. “The Court hereby authorizes the appointment of a special master to review the seized property for personal items and documents and potentially privileged material subject to claims of attorney-client and/or executive privilege,” she wrote. (According to the ruling, the FBI found “medical documents, correspondence related to taxes, and accounting information” among the classified information, and seized that too; according to The Daily Beast, “the DOJ has indicated that their placement next to some of the nation’s most highly classified secrets officially makes them evidence of Trump’s criminal recklessness that could be shown at a future trial.”) And if you’re wondering if Cannon’s decision was one that members of the legal community would agree was well-founded, legitimate, and completely unimpeachable, the answer is “no,” “no,” and “hell no.”
“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,” Samuel Buell, a Duke University law professor, told The New York Times. “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.” Constitutional law professor Laurence Tribe similarly assessed the situation, writing that Cannon’s decision was “utterly lawless” and that she “has disgraced her position as an Article III judge.” Former US acting solicitor general Neal Katyal tweeted: “This special master opinion is so bad it’s hard to know where to begin….Frankly, any of my first year law students would have written a better opinion.”
Why the negative reviews and insinuations that Cannon should go back to remedial judge school? For one, there’s the fact that she suggested publicly, even before she heard arguments from the Justice Department, that she was going to side with Trump. Then there’s the fact that, despite tacitly acknowledging that the documents Trump was hoarding at Mar-a-Lago are a big fucking deal—Cannon permitted a probe by the Office of the Director of National Intelligence, which is assessing the risk to national security of keeping top secret documents in the basement of a building possibly breached by multiple spies—she temporarily halted the one that could result in Trump being charged with a crime. There’s also the absurd idea that “executive privilege” can be asserted in an investigation being undertaken by a department within the executive branch, i.e., the DOJ. “The opinion,” Peter Shane, a legal scholar at NYU, told the Times, “seems oblivious to the nature of executive privilege.”
Perhaps most galling, though, was the argument by Cannon that Trump would suffer grave “reputational harm” if a special master was not allowed to intervene, a claim that numerous legal experts agreed was utter bullshit. Ronald Sullivan, a Harvard Law School professor, told the Times that everyone targeted by a search warrant worries about how their reputation will suffer as a result, but few of them are able to call in favors from the government; he dubbed Cannon’s logic “thin at best” and accused her of giving “undue weight” to Trump’s status as a former inhabitant of the White House. “I find that deeply problematic,” he told the outlet, noting that, in the United States, the criminal justice system is supposed to treat everyone equally. “This court is giving special considerations to the former president that ordinary, everyday citizens do not receive.” Attorney Seth Abramson similarly called BS on Monday, tweeting that Cannon “declared—and not just implicitly, but, horrifyingly, *explicitly*—that Donald Trump’s reputation simply *matters* more than yours or mine, as do his property rights. And they matter more because he is a powerful man.” DOJ veteran Andrew Weissman wrote: “Nothing about the MAL search warrant process was special and her reasoning [would] lead to appointment of a special master in EVERY criminal case. The only thing special is a former president stealing highly classified docs.” Commenting on the ludicrous idea that the entire criminal investigation should be halted because a few of Trump’s doctors notes were mixed in with top secret documents he wasn’t supposed to be holding onto, former federal prosecutor Jeff Blattner posed the following hypothetical: “Suppose a guy robs a bank and government gets a search warrant and finds stolen dough along with guy’s pocket change and an email from his lawyer. Can the guy get a special master to sort out the cash and the email, and an injunction against further investigation in the meantime?”
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