Tuesday, September 06, 2022

A MAGA Federal Judge Accepts Trump's Snowflake-Whining And Rules (With No Legal Foundation) In His Favour, Stating His Reputation & Feelings Are More Important Than The Current National Security Nightmare He Has Caused

U.S. District Court Judge Aileen Cannon's decision ordering the appointment of an independent arbiter to review nearly 13,000 pages of documents (including numerous "top secret" and "classified" documents) that Donald Trump stole from the US government and hid in his home for at least 18 months and barring the Justice Department from using those documents for any "investigative purpose" connected to its current investigation of Trump until the work of the arbiter is completed. (Order)

Cannon, a member of the far-right Federalist Society since 2005, was appointed by Trump and confirmed by the Senate one week after Trump lost the 2020 election. Any appeal by the Justice Department would be heard by a three-judge panel from the United States Court of Appeals for the 11th Circuit in Atlanta. Of its 11 judges, six were appointed by Trump.

Trump's lawyers told the Justice Department on June 3 that Trump had returned all government documents in his possession. That was a lie -- and has landed two of Trump's lawyers in serious legal trouble for lying to the Justice Department -- because two months later, during a court-ordered search of Trump's Florida home, the FBI discovered an additional 27 boxes of documents (including more than 300 classified documents and more than 70 mysteriously empty folders). Other news account mention 33 additional boxes.

(My emphasis below)

Political scientist Norman Ornstein said Cannon "violated her oath and is unfit for the bench", calling her ruling "a clear-cut impeachable offense" and stating that she has "engaged herself in obstruction of justice".

Laurence Tribe, constitutional law scholar, a University Professor Emeritus at Harvard University, a former Harvard Law School professor, and the co-founder of the American Constitution Society:
Her decision was utterly lawless. She has disgraced her position as an Article III judge.
Joyce Vance, a former federal prosector (25 years):
Is it only Trump who can have a judge enjoin a criminal investigation into his conduct following execution of a judicially authorized search warrant? Either Judge Cannon thinks Trump is above the law or she's created a new rule to benefit criminal defendants.
Samuel W. Buell, a Duke University law professor:
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.
Stephen I. Vladeck, a law professor at University of Texas, called the ruling
an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation.
Ryan Goodman, a New York University law professor:
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.
Paul Rosenzweig, a former homeland security official in the George W. Bush administration and prosecutor in the independent counsel investigation of Bill Clinton:
This would seem to me to be a genuinely unprecedented decision by a judge. Enjoining the ongoing criminal investigation is simply untenable.
Peter M. Shane, a legal scholar in residence at New York University and a specialist in separation of powers, said Cannon had no legal basis to expand a special master's authority to screen materials that were also potentially subject to executive privilege. He said her opinion
seems oblivious to the nature of executive privilege. . . . Even if there is some hypothetical situation in which a former president could shield his or her communications from the current executive branch, they would not be able to do so in the context of a criminal investigation — and certainly not after the material has been seized pursuant to a lawful search warrant.
Ronald S. Sullivan Jr., a Harvard Law School professor, called Cannon's reasoning "thin at best" and said she gave "undue weight" to the fact that Trump is a former president, undermining the premise that in the United States, everyone is equal under the law.
I find that deeply problematic. This court is giving special considerations to the former president that ordinary, everyday citizens do not receive.
Lawyer Robert J. DeNault:
Judge Cannon's decision is wacky for a lot of reasons, none more than this. I can't think of any other ruling I've ever read where a judge explicitly notes that applicable law does not grant her jurisdiction to hear the case but proceeds to decide it anyway.
Former FBI Special Agent Asha Rangappa:
This judge basically did Trump's lawyers' work for them, making arguments under the 4-part Richey test which Trump did not brief or argue, making executive privilege arguments that Trump did not press fully in the hearing, and granting an injunction when one wasn't requested

In addition, this judge basically admits that Trump is getting special treatment bc he is former POTUS. . . .
Glenn Kirscher, who worked as a federal prosector for 30 years:
If Donald Trump were any other person on the planet, you know what law enforcement would be doing? They'd be getting an arrest warrant for him, they would lock him up . . . Trump knows PRECISELY why he had those TS documents containing some of our nation's most closely guarded intelligence information AND he knows what he did w/the docs that are missing from the classified folders. Stop handling Trump w/kid gloves. Arrest him. Protect our nation.
Elie Mystal, author and columnist at The Nation:
The argument that he has executive privilege is so what the scientists would call stupid. . . . It would be like if Trump called for executive privilege over Air Force One and parked the plane at Mar-a-Lago.
Neal Katyal is a professor of national security law at Georgetown University Law Center and an Acting Solicitor General of the United States from May 2010 to June 2011. He also worked as Principal Deputy Solicitor General in the U.S. Justice Department:
This special master opinion is so bad it’s hard to know where to begin:
1. She says Biden hasn't weighed in on whether docs protected by Exec Privilege. Nonsense. The archives letter (which DOJ submitted to the Judge) makes it clear current President thinks none of this is privileged. Archivist says it is "not a close" question.

2. Judge enjoins the entire investigation because some of the material might be subject to Executive Privilege. But Executive Priv isn't some post-presidential privilege that allows Presidents to keep documents after they leave office. At most, it simply means these are Executive documents that must be returned to the archives. It doesn't in any way shape or form mean they can't be used in a criminal prosecution about stolen docs...

3. She says the "reputational" harm to Trump justifies a special master. That's insane–every crim deft has reputational harm. Are we now going to have special masters in every crim investigation?

4. She says the Special Master should screen materials for exec privilege, without ever once explaining what specific material is subject to exec priv, particularly when the incumbent President rejects the assertion. How is the Master supposed to figure that intricate Q out?

5. She says that because some tiny percentage of materials might be privileged, the entire investigation over all the materials has to stop. That's a bazooka when one needs at most a scalpel.

6. She tries to enjoin the Exec Branch from using these materials in an investigation, but the govt has already reviewed all the materials. It makes no sense.

7. She says Trump suffers irreparable harm in interim, but the only harm she isolates is he won't have the docs back during the investig. That's not irreparable, he can get them back later & if they are improperly used to bring an indictment, he can move to dismiss the indictment.

8. Her analysis of standing is terrible. Trump wouldn't own these docs anyway, so why does he get a Master over them? If there is some marginal claim to some attorney client docs, that handful of material can be separately dealt with–you don't enjoin the entire investig for that.

9. Her jurisdictional analysis is similarly awful. She let Trump forum shop for a judge, instead of letting the magistrate judge evaluate these claims. The appearances here are tragic.

That's just a few of many more problems. Frankly, any of my first year law students would have written a better opinion.
Seth Abramson graduated from Harvard Law School and has worked as a former criminal defense attorney and federal criminal investigator. From his 46-tweet thread, explaining "why so many lawyers are horrified" by Cannon's ruling:
5/ So already we come to the first problem with the Cannon ruling, besides the obvious fact that it came from a Donald Trump political appointee who Trump and his team desperately "forum-shopped" for in a clear abuse of how our system is *supposed to* (but often does *not*) work.

6/ And that problem is this one: Trump appointee Aileen 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.

7/ In ruling (in part; explicitly) on this basis, Cannon not only made up *precisely* the sort of ad hoc judicial-activist new rule Republicans claim to hate—"ex-presidents' reputations matter more than other people's, even though they're just regular citizens"—but did far worse.

8/ Why do I say that she did worse than just not applying the rule of law equally across all those before her? Because she implicitly accepted Trump's dime-a-dozen whining about being persecuted—many defendants say/think this—by bringing political considerations into her ruling. . . .

15/ But even more importantly, Judge Cannon actually held in her ruling that DOJ had not abused its authority—had *not* abused Trump's constitutional rights—which makes any explanation of her ruling in grounded in the opposite claim wildly self-contradictory and even nonsensical. . . .

23/ . . . There are immediate and dire national security implications in the question of whether or not DOJ's counterintelligence division is going to be allowed to continue its investigation of one of the worst security breaches in our history.

24/ And make no mistake, that is *exactly* what Cannon did: she acknowledged the high national security stakes in this case and then said that Trump's *specially protected, snowflake-like reputational interests* were clearly more important than U.S. national security. Uh....what?

25/ The DOJ investigation is a national emergency, as DOJ doesn't know what was taken illegally from DC, whether it has all of it, what was done with what it doesn't have (or where such portion of Trump's stolen goods might be)—and so it *needs* to keep reviewing documents *now*.

26/ Instead, Cannon has effectively put a stop on the DOJ investigation for weeks or even months, making it impossible for DOJ to determine if Trump still has national secrets hidden somewhere in one of his domiciles. Indeed, Cannon's ruling so threatens national security that...

27/ ...it'd be not at all surprising if the FBI now sought to search Trump Tower and Bedminster precisely *because* their suspect—who, to be clear, they have dead to rights—has managed to forum-shop his way into preventing them from determining if *more* stolen data is out there.

33/ . . . Trump has made no showing whatsoever (or even claim) that the documents seized included attorney-client privileged materials, because of course he's too busy trying to preserve a false defense that he didn't even *know* what he stole from DC (yes—really).

34/ By the same token, Trump has not and cannot credibly raise executive privilege as an issue because he is not the president, the actual president (Biden) has waived that privilege preemptively anyway, and privilege actually has nothing to do with the case—which is about theft.

35/ But even more than this, Trump—*again*, and consistent with his M.O. throughout his presidency—has yet to formally invoke executive privilege with respect to *any* specific document. The law requires him to do so, but judges have been covering his ass on this for *years* now.

36/ To my knowledge not a single federal judge since 2017 has required Trump to invoke executive privilege even when *others* have—without any basis in law—tried to do so on his behalf. It's like these judges are acting as *Trump's lawyers*, invoking defenses *he* can't or won't.

37/ Here, Trump won't invoke because—again—he's trying to maintain the farce that he's no idea what he took and therefore doesn't know if any of it was privileged (which, again, is legally immaterial here anyway). So Judge Cannon has helpfully given him an argument he never made.

38/ And to be clear—to the extent appointment of a special master *is* common in a type of case involving a seizure, it's one in which a defendant *shows cause* to a court that there's reason to think items were seized a special master must curate. Trump has made no such showing.

39/ The result of this is that we have a demand for a special master without any of the legal or factual grounding for such a demand, in a situation in which granting the demand harms national security, and with a claim of special status that has no basis in U.S. law whatsoever.

40/ And it's *on top of all this* we must put the fact that a) Cannon is a lame-duck Trump-appointed judge who owes her career to [Trump], b) Trump has actively incited threats against *all* government agents who could threaten him—which implicitly includes Cannon.

CONCLUSION/ This case should've been heard by the same court already overseeing the Mar-a-Lago search. Failing that, it should've been decided by Cannon consistent with the facts, law, and the issues *actually raised* by the movant (Trump). Fortunately, DOJ can—and should—appeal.

PS/ As it is appealing, DOJ should *also* use the Cannon ruling as an additional basis—it already has probable cause—to search other Trump domiciles for the contraband it *knows* he stole. Moreover, it should move full speed ahead with its January 6 investigation of the ex-POTUS.

PS2/ I'll also say that I consider it odd that Cannon feels compelled to consider certain facts not in evidencea 2024 run Trump hasn't announced; legal claims he hasn't/won't make—but not *other* known facts, like the movant's decades-long history of bad-faith delaying tactics.

PS3/ A judge can only take what's called judicial notice of facts not in evidence on a motion by one of the parties, but here she's already said Trump is special—she can take into account items not properly before her—so how is she drawing the line on her deviation from protocol?

PS4/ It's for all the foregoing reasons that my rather curt and snarky tweets about the ruling this morning focused on just two possibilities: (a) Judge Cannon is a political partisan more than she is a judge, or (b) she's *acting* that way because she's scared of MAGA terrorism.

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