Thursday’s 10-page opinion by U.S. District Court Judge Eileen Cannon, negating the government’s motion for a stay in the Mar-a-Lago document case, was criticized by commentators as normally bizarre violations of justice such as the infamous Dred Scott Supreme Court ruling. being reserved for. ,
Respected and generally sober legal analysts have called it an atrocity, “legally and practically inconsistent”. “hazardous wastes” and declared Cannon “a partisan hack”. Harvard Law’s Lawrence Tribe tweeted, “No honest and competent legal analyst could rule like he did.”
Can opinion really be that bad?
In a word, yes.
The essential loopholes of opinion go beyond straining the law and dragging the facts in Donald Trump’s favor. The ruling rests on the most basic abrogation of judicial responsibility, and it represents a complete departure from the basic principle of separation of powers.
Cannon was actually given a graceful way out of her widely columned opinion last week, in which she determined that a special master was needed to review government documents seized at Mar-a-Lago.
The Justice Department asked to be limited to only 100 pages of classified material found at beach resorts. It is beyond dispute that such documents are off-limits to a private citizen such as a former President.
Trump’s lawyers did not try to contradict that theory. Rather he argued oddly that just because the government said the documents were classified, it was not necessary.
This, of course, is superb bullshit. Classified documents mean that the executive branch has made a determination about their contents and classified them.
But canon embraced Trump’s Alice-in-Wonderland approach. He concluded that it would not be “appropriate” – in his opinion the closest to legal argument – “to accept the Government’s conclusions on these important and contentious issues without further review by a neutral third party,” i.e. a special master .
Canon is, in essence, defining the classification process as merely a provisional executive branch decision, subject to dismissal by individual judges such as myself. In addition to its legal bankruptcy, such a process would end the stalemate in national intelligence matters, replacing the very designations put aside by canon.
The Trump team’s next gamble, also adopted by the judge, was even more logically and legally threadbare. The former president has publicly argued repeatedly that he made the documents public. But his lawyers have refrained from saying that in court papers, where lying is subject to professional and criminal penalties. Trump’s filing only indicates that he may have made the documents public.
The appropriate response for a judge in these circumstances is to put Trump on the stand and ask him, “Did you or didn’t you?” Failing that, “probably” means that the case is not established and the argument is lost.
But canon either doesn’t know or doesn’t care what the judges do in such a situation. It’s important to emphasize that she’s not just leaning in Trump’s direction, she’s falling over him.
Judges sit to resolve disputes based on evidence. Trump’s team did not offer anyone for their positions, instead relying only on the most speculative arguments. It is primary to the adversarial system of justice that evidence and law, not speculation, determine the outcome. Nothing in the Trump team’s filing justifies freezing the criminal justice investigation and national intelligence review in their tracks.
And that’s another screaming flaw in Cannon’s opinion. The Justice Department submitted an affidavit explaining in concrete terms why a national intelligence review of the Mar-a-Lago documents cannot proceed if the criminal investigation is halted. Cannon simply dismissed it – again, no counter-evidence was offered – and reiterated his belief that the National Intelligence Review could go ahead. That decision was based on complete ignorance of executive branch practice and a rank arrogance of the executive power itself.
Finally, and oddly enough, Canon declared that his rule was “naturally influenced by the position formally held by the plaintiffs.” In other words, her pledge to do equal justice under the law is an exception to the President who appointed her.
It may not be clear that the failures here represent a rank departure from the function of a federal judge—to resolve disputes according to evidence and to respect the role of the coordinating branches.
And it does not even touch upon the defeat that in this case a Special Master has been appointed, in which the executive privilege is to be assessed by the Special Master, irrespective of the firmly established law of the former President on the documents made by him. But there is no such claim. and hid.
The Justice Department will file an appeal. Many observers have noted that the Court above Cannon has a majority of conservative members, and this is true and dangerous. Nonetheless, the shortcomings in opinion go beyond conservative versus liberal judicial philosophy. Only if appellate judges, like Cannon, are willing to give up their original roles as judicial officers, can this inconsistent opinion prevail.
If that happens – which I don’t expect – we will be really lost.
This story originally appeared in the Los Angeles Times.