However, she did not agree with Trump’s argument that the discovery was accompanied by a “drastic disregard” of his constitutional rights.
Trump’s Major Victory
The primary takeaway is simple: The ruling is a major legal victory for Trump.
Trump’s lawyers raised concerns about the unprecedented search of the Florida resort, as they questioned whether investigators could be trusted to properly filter through the thousands of documents seized. The judge rejected the Justice Department’s assurances that its internal filter team had already filtered out material that may be subject to attorney-client privileges.
Ultimately, the special master appointment may only lead to a delay in the federal investigation into documents taken to Mar-a-Lago, but it now introduces a new layer of uncertainty and unpredictability to the investigation.
The former president didn’t get everything he asked for—the judge didn’t rule that any material confiscated from his home must be returned to him, for example.
Immediate next step focus on the rules for the particular master
Cannon left several important questions about how the Special Master would work. She worked out a plan for how things would go for the rest of this week and focused on settling those logistical matters.
She ordered Trump’s lawyers and prosecutors to “conference” on several big-ticket items: Who are the proposed candidates to serve as Special Master? What would be their specific “duties and limitations”? What should be their schedule and pacing? And how much will they be paid for their work?
Both sides were asked to file a “joint filing” by Friday, answering these questions. Looking at the way the matter has progressed so far, it seems that both the parties will not agree much on anything. They will both be able to write down their thoughts on how they want to pursue it.
Cannon said she would issue a court order “expediting” once the joint filing arrives, “determining the exact details and mechanics of this (special master’s) review process.”
He noted the need to settle disputes between the parties as to “whether certain confiscated documents constitute personal or presidential records” and “whether certain confiscated personal effects have a clear value.”
Review plan for “Executive Privileges”
Trump had said that a special master review is needed to go beyond documents covered by attorney-client privilege, and that material covered by executive privilege should also be filtered.
Executive privilege refers to the private communications presidents have with their advisors and other forms of internal communications within the executive branch that are withheld from public release. While congressional investigations have brought up controversies over the privilege, the accessibility of executive privilege—particularly when a former president is debating whether it should apply when a current president is refusing to accede to it—is a volatile area of law. Is.
Cannon orders require the Special Master to examine documents based on “executive privilege” concerns, making the job more detailed than the attorney-client privilege review that typically occurs when a Special Master is appointed. (By order of canon, documents potentially covered by attorney-client privilege will also be part of this particular master’s review.)
He did not elaborate on the parameters that the particular guru should consider.
In its ruling, Cannon stated that the Supreme Court “did not rule out the possibility of a former president overcoming a current president on executive privilege matters.” He cited a 1977 Supreme Court case related to President Richard Nixon’s White House documents, as well as a Supreme Court order earlier this year in which Trump released White House documents to House investigators on January 6. was allowed to do.
Canon quoted the Supreme Court in a recent case as saying that the questions are “unprecedented and raise serious and substantial concerns” when it comes to scenarios where a former president is claiming executive privilege over those materials. for which that privilege has been waived. ,
Cannon conceded that, when all is said and done, Trump’s claims of executive privilege may fail, but added that “does not negate the former president’s ability to elevate privilege as a preliminary matter.”
Intelligence review will continue
The judge is not stopping the US intelligence community from continuing to examine the documents as part of an assessment of the potential risk to national security.
Director of National Intelligence Avril Haines told Congress last month that the intelligence community would “assess the potential risk to national security that would result from the disclosure of relevant documents.” CNN previously reported that the intelligence community has also been working with the FBI since mid-May to investigate some of the documents taken from Mar-a-Lago.
While the FBI investigation is concerned with at least three possible crimes — violations of the Espionage Act, obstruction of justice and criminal conduct of government records — the intelligence review is primarily concerned with determining whether material disclosed to Trump was held. . Resorts and residences can put sensitive intelligence sources at risk.
Trump got special attention as a former president
The judge repeatedly pointed to the “extraordinary circumstances” that existed in the Special Master dispute, noting that it involved an “unprecedented” search of the former president’s home. She also said there was a risk of “stigma” that would come with a prosecution that had been unfairly brought in and said the threat was greater in this scenario because Trump is a former president.
“As a function of plaintiff’s prior status as President of the United States, the stigma attached to subject forfeiture is in a league of its own,” she wrote. “Future indictment, by virtue of any degree on the property to be returned, would result in reputational damages of a decidedly different order of magnitude.”
There were other examples in order to place Trump as a former president in a special class of defendants. She said Trump’s reliance on “cooperation between the former and the current administration” regarding the exchange of documents was also cut in favor of her intervention. (The Justice Department has pointed to several examples in the lawsuit over the slow-moving negotiations of Trump’s team).
Refuting the DOJ’s argument that special masters are usually appointed to review searches of an attorney’s offices, Canon wrote that it “did not see why these concerns would not apply, at least substantially. To the extent, at office and at home. A former president.”
What can the Justice Department do now?
The decision does not close the Justice Department’s criminal investigation. Trump still has a potential legal threat. But the decision will limit what investigators can do, and slow things down a bit while the special master review is underway.
A Justice Department spokesman said Monday that officials are “investigating the opinion” and considering “appropriate next steps.” The one-sentence statement did not explicitly reference the appeal, although it is the obvious next possible option for prosecutors.
If prosecutors appeal, those proceedings will be handled by the 11th US Circuit Court of Appeals, which is located in Atlanta. The court has four full-time judges who have been appointed by Democratic presidents, and seven by Republican presidents, six of whom are appointed by Trump.
A three-judge panel will be chosen at random to hear the appeal. Whichever side loses in that round will have an opportunity to ask the full 11-member court to hear the appeal “n bank” again. The losing side can also appeal to the Supreme Court, which has a conservative majority.
DOJ officials can choose to appeal against only part of Cannon’s multi-pronged regime.
Judge Cannon is the Trump nominee – does it matter?
Federal judges routinely handle cases that involve the president who places them on the bench. The fact that Cannon was appointed by Trump, and that Trump filed this suit, is not grounds to dissociate himself from Cannon’s case, although she may do so if she thinks it creates a perception of unfairness. can.
For his part, Trump has a history of politicizing the judicial branch by attacking “Obama judges” and openly saying that he hopes his appointment will do his legal bidding. But this twisted approach to judicial loyalty appears to be fairly one-sided, with Trump hoping for political vendetta 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?
A question on this and other investigations touching on the former president is how the Justice Department will see the so-called “60-day rule” being applied to investigations involving Trump.
The “rules” are an internal DOJ policy that discourages public investigative moves that could affect elections up to 60 days before Election Day. Trump aides have argued that the department’s investigation of Trump documents violates this principle, even though Trump himself is not a candidate.
It’s not clear whether the DOJ was examining its approach to scrutinizing documents in keeping with that rule, and if prosecutors are doing so, it’s also unclear whether the appointment of a special master would support those plans. affects or not.
The investigation appears to be in its early stages. Prosecutors described it as such in public court proceedings. And the types of lawyers publicly involved in the investigation – mainly coming from the DOJ’s National Security Division – also suggest that the investigation is in its early stages, former agency officials have said.