How Judge Cannon broke with conservatives in Trump documents case

The judge appointed a semi-retired jurist to oversee the review process, ordered that Trump’s lawyers be given copies of what was taken and that, in the government’s view, prosecutors and the FBI cannot use the confiscated, This announcement effectively stopped the investigation. Records for the interrogation of any witnesses.

The decisions were followed extensively by a wide range of legal experts, including many from the right, who noted how far they are from the conservative judicial mainstream. Cannon, during her confirmation process in 2020, included in her relatively thin resume that she had been a member of the right-wing Federalist Society for a decade and a half, ever since she entered the University of Michigan. law School.

However, many lawyers who support broad executive authority say that despite that affiliation, aspects of canon’s directives appear to contradict the prevailing views among groups of prominent conservative lawyers.

“A strong view of executive power says that it’s not really the job of the courts to decide whether to classify or declassify,” said University of California Berkeley law professor John Yu. “I think most people who agree on a unitary executive also think that it is the president who decides what is classified and declassified – the current, the incumbent, the current president.”

Trump is challenging both those principles in his effort to fight the unprecedented FBI raid of Mar-a-Lago on Aug. 8, which denies illegal retention of classified information based on a search warrant, theft of government records and obstruction of justice. demanding proof.

Cannon has not ruled strongly in Trump’s Favor the substance—yet. But the particular master procedure he has adopted also appears to include the possibility that he or Master, senior US District Court Judge Raymond Dear, may conclude that Trump has used markings like “Top Secret/SCI”. have declassified records with or have certain rights to control their use.

“It’s a bizarre currency,” said a former Trump administration official and a close advocate of several Federalist society leaders. “It is a waste of time… How will a judge determine whether or not something will seriously hurt the national interest? It is not their merit.”

For many conservative lawyers, Canon’s order — particularly his decision to halt the criminal investigation against Trump while the document is under review — smacks of an honor. For the former president that the goals of investigations relating to national security are never achieved.

“I’ve never seen an order like this in a criminal case in 35 years,” said Edward McMahon Jr., a Virginia-based criminal defense attorney. “Every spying client I’ve ever had really wants to be the judge and have a particular master approved and slow down the process. That would be very helpful.”

The idea that a judge would try to stop a criminal investigation is particularly troubling to lawyers who support a strict separation of powers between the executive, judicial, and legislative branches.

“The power to investigate and prosecute rests entirely with the executive branch,” McMahon said. “The judge has no right to shut his nose at the investigation and prevent the executive branch from doing what he is doing.”

Prosecutors handling the investigation of the Trump documents are also documenting their arguments for the possibility that the 11th Circuit — whose benches are dominated by Trump appointments — includes some judges who have been challenged by the Justice Department and the need for autonomy for the executive. Will answer the arguments about. Branch to maintain its almost absolute authority over matters of national security, including classified information.

“Courts exercise great caution before interfering with criminal investigations or civil actions with cases,” prosecutors wrote in their motion Friday, asking the appeals court to mark the 100 or so documents classified by a comprehensive review cannon.

The Justice Department cited an opinion issued last year by the 11th Circuit in litigation stemming from the Fed’s controversial decision in 2008 not to prosecute financier Jeffrey Epstein for sex trafficking in connection with sexual encounters with teenagers. Epstein was struck with similar charges in 2019 and nearly a month later, died by suicide in a federal prison in New York City.

“The notion that a district court may have any input on the investigation and decision of a United States Attorney whether … to bring a case” is inconsistent,” wrote Tjöflat for the appointment of Judge Gerald President Gerald Ford. Two Trump appointees, Judges Kevin Newsom and Barbara Lago, joined Tojoflat’s opinion.

The Justice Department brief seeking relief from the appeals court in relation to the Trump finding closes by declaring that Cannon is “wrong by departing from that fundamental principle of judicial restraint.”

Not all conservative lawyers have joined in on Cannon’s criticism for usurping executive authority. Some note that she has yet to make a definitive decision and is simply trying to establish a systematic process in a highly unusual dispute involving a former president.

David Rivkin, a long-serving Federalist Society member in the White House attorney’s office, said: “Given the factual disputes between the DOJ and Trump’s attorneys regarding both attorney-client privileged material and classified documents, a Appointment of a Special Master is an appropriate step.” In the Justice Department under Presidents Ronald Reagan and George W. Bush. “It is designed to strengthen the public’s confidence that these cases are handled fairly and that it does not impose an undue burden on the legitimate prosecution and national security interests of the government.”

Other prominent Federalist Society veterans say the canon is making room for the judicial system to address issues that could be tainted by the search, such as some degree of executive privilege in documents Trump seized from his Florida home. retains or not.

“It is an unresolved question to what extent a former president can claim privilege even when he is out of office,” said C. Boyden Gray, who served as White House counsel to President George H.W. Bush. “I don’t think it makes sense to say that the privilege ends when the president leaves office. The idea is far more far-reaching than that. The idea is to protect the president or his advisers by allowing him to play the role of devil’s advocate. or allow them to advocate a policy and it cannot be issued after a year.”

However, for harsh critics, Trump’s orders so far in the Mar-a-Lago documents fight canon fuel questions of whether Trump-appointed judges are adhering to principles that have been accepted by many in Federalist society. Among them is the so-called “unitary executive” doctrine, which claims that each employee of the executive branch works for the president and that the president has broad authority over all executive powers.

“What she’s doing is clearly inconsistent with the unitary executive principle,” said Georgia State University law professor Eric Segal. “Apparently, a president who is no longer in office — other than receiving Secret Service and security briefings — is basically a civilian … I can’t even believe these orders.”

While the Federalist Society was founded in 1982 and has steadily risen to prominence, Trump was the first presidential candidate to effectively outsource the judicial nomination process to the organization. He also publicly adopted a list of potential Supreme Court candidates screened by the society and the Heritage Foundation.

Trump-appointed judges have not been on the bench as long, but there is some evidence that they may be more hostile to law enforcement than their Republican-appointed predecessors and even several judges nominated by Democratic presidents. , raising the possibility that Trump’s public column of the FBI has found some resonance with the judges he has put on the bench.

Segal said he thinks there is a difference of opinion about Canon’s rulings between academics who are part of the Federalist Society and Washington lawyers affiliated with the group.

“I think there’s a divide there,” said the liberal professor. “The professors in the federal society I follow and I know, the vast majority think this is incredibly wrong. Kudos to them.”

Kyle Cheney contributed to this report.

Source link