An important victory for Trump
The main takeaway is simple: The decision is a major legal victory for Trump.
Trump filed suit seeking a special master to review materials seized by the FBI last month, and one will now be appointed with the power to rule that certain materials are outside the bounds of the FBI’s investigation.
Cannon expressed skepticism raised by Trump’s lawyers about the unprecedented search of the Florida resort, as they questioned whether she could trust investigators to properly sift through the thousands of documents seized. The judge rejected the Justice Department’s assurances that its internal filter team had already sorted out materials that could be subject to attorney-client privilege.
Ultimately, the master’s special appointment may simply delay the federal investigation into documents moved to Mar-a-Lago, but it now introduces a new level of uncertainty and unpredictability to the investigation.
The former President didn’t get absolutely everything he asked for — the judge didn’t rule that materials seized from his home should be returned to him, for example.
The immediate next steps focus on master-specific rules
Cannon left open many key questions about how the special master would work. He sketched out a plan for how things would go at least for the rest of this week and focused on getting those logistical issues sorted out.
He ordered Trump’s lawyers and prosecutors to “college” several big-ticket items: Who are the recommended candidates to serve as special master? What will be their specific “duties and limitations”? What should their schedule and pace be? And how much will they be paid for their work?
Both sides have been asked to file a “joint statement” by Friday clarifying their answers to those questions. Based on how the case has played out so far, it seems unlikely that the two sides will agree on much. Both will be able to write down their ideas of how they want this to go.
Cannon said she would “promptly” issue a court order setting out “the exact details and mechanics of this (special master) review process” after the joint filing.
He noted the need to settle disputes between the parties regarding “whether certain seized documents constitute personal or presidential records” and “whether certain seized personal effects have probative value.”
Plans for ‘executive privilege’ review
Trump had said that a special master review should go beyond documents covered by the attorney-client privilege, and that materials covered by the executive privilege should also be filtered out. Executive privilege refers to the private communications presidents have with their advisers and other types of internal communications within the executive branch that are not allowed to be released publicly. While disputes over the privilege have arisen in congressional inquiries, the scope of executive privilege — particularly when a former president asserts it should apply when a current president refuses to affirm it — is a volatile area of law. Cannon’s order requires the special master to review documents based on “executive privilege” concerns, making the work more extensive than the attorney-client privilege review that typically occurs when a special master is appointed. (Documents potentially covered by attorney-client privilege will also be part of this special master review, per Cannon’s order.) He did not specify the parameters that the special master should consider. In her ruling, Cannon said the Supreme Court did not rule out “the possibility that a former President may override a sitting President in matters of executive privilege.” He cited a 1977 Supreme Court case involving documents from President Richard Nixon’s White House, as well as a Supreme Court ruling earlier this year that allowed the release of Trump White House documents to House investigators on Jan. 6. Cannon said the Supreme Court said in the recent case that the questions are “unprecedented and raise serious and substantial concerns” when it comes to scenarios where a former president asserts executive privilege over materials for which that privilege has been waived by the president. existing. It also drew from a separate statement by Judge Brett Kavanaugh in that case, in which Kavanaugh said he would “eliminate the executive privilege for presidential communications” if the courts concluded that a former president could not “invoke the communications privilege of the President for the communications that occurred. during his Presidency, even if the current President does not support the assertion of the privilege.” Cannon conceded that when all is said and done, Trump’s claims of executive privilege may fail, but said it “doesn’t negate the ability of a former president to raise privilege as an initial issue.”
Information screening will continue
The judge does not prevent the U.S. intelligence community from continuing to review the documents as part of a damage assessment regarding the potential risk to national security.
Director of National Intelligence Avril Haines told Congress last month that the intelligence community would conduct an assessment of “the potential risk to national security that would arise from the disclosure of the relevant documents.” The intelligence community has also been working with the FBI since mid-May to review some of the documents obtained from Mar-a-Lago, CNN previously reported.
While the FBI probe relates to at least three potential crimes — violations of the Espionage Act, obstruction of justice and criminal manipulation of government records — the intelligence review is primarily about determining whether the disclosure of material housed in Trump’s resort office and residence could compromise sensitive sources of information.
Trump received special attention as a former president
The judge repeatedly pointed to the “extraordinary circumstances” in the special dispute over the master, given that it involved an “unprecedented” search of a former president’s home. He also said there was a risk of “stigma” that would come with a wrongfully brought prosecution, and said the threat was greater in that scenario because Trump is a former president.
“In connection with Plaintiff’s past position as President of the United States, the stigma attached to the subject matter seizure is of its own,” he wrote. “A future indictment, based in any degree on assets that should be returned, would result in reputational damage of a distinctly different order of magnitude.”
There were other examples in Cannon’s order that placed Trump, as a former president, in a special class of defendants. She said Trump’s reliance on “cooperation between former and sitting administrations on” the sharing of documents also weighed in favor of her intervention. (The Justice Department has pointed to several examples in the Trump team’s litigation that are slowing down that negotiation.)
In a footnote rebutting the Justice Department’s arguments that special masters are routinely appointed to review investigations into law firms, Cannon wrote that she “did not see why these concerns would not apply, at least to a significant extent, to the office and the home of the former president”.
What can the Department of Justice do now?
The decision does not close the Justice Department’s criminal investigation. Trump still faces potential legal risk. But the decision will limit what investigators can do and may slow things down a bit while the special master review is underway.
A Justice Department spokesman said Monday that officials are “reviewing the opinion” and considering “appropriate next steps.” The statement of a motion did not specifically mention an appeal, although that is the obvious next possible option for prosecutors.
If prosecutors appeal, those proceedings will be handled by the 11th U.S. Circuit Court of Appeals, which is based in Atlanta. The court has four full-time justices appointed by Democratic presidents and seven by Republican presidents, including six by Trump.
A panel of three judges will be selected at random to hear the appeal. Whichever side loses that round would have the chance to ask the full 11-member court to review the appeal “en banc.” The losing side could also appeal to the Supreme Court, which has a conservative majority.
DOJ officials may choose to appeal only part of Cannon’s multifaceted decision.
Andrew Weissmann — a respected former Justice Department official, a former prosecutor on Robert Mueller’s team and a prominent Trump critic — tweeted that the Justice Department should “immediately appeal” the part of the decision that prevents investigators from anything with the seized materials, which he himself called “a precedent that is too wrong not to appeal.”
Judge Cannon is a Trump nominee — does that matter?
Federal judges regularly handle matters involving the president who put them on the bench. The fact that Cannon was appointed by Trump and that Trump filed this lawsuit is no reason for Cannon to withdraw from the case, although she could if she believes it creates a perception of injustice.
For his part, Trump has a history of politicizing the judiciary, attacking “Obama judges” and openly saying he expects his appointees to do his legal bidding. But this skewed view of judicial loyalty appears to be fairly one-sided, with Trump expecting political loyalty while most judges try to ignore his out-of-court rhetoric and focus on the facts.
How does the DOJ’s so-called “60-day rule” for investigations come into play?
One question that remains in this and other investigations involving the former president is how the Justice Department will view the…
