District Judge Grants Trump’s Request For Special Master
I warned you all, my predictions are notoriously wrong.
![[Documents taken in August Mar-A-Lago search]](https://otb.cachefly.net/wp-content/uploads/2022/08/FbdY32sX0AEIBa0-1024x690.jpg)
News has just broken that Southern District of Florida Judge Aileen Cannon has granted former President Trump’s request to have a Special Master appointed to review a subset of documents taken during the FBI’s search of Mar-A-Lago in August. The 24-page decision can be found here.
I am not going to be able to take more than a cursory look at it (I have to finish a conference paper that is way-way-way past due). I will call out a few things though.
- This does temporarily suspend the use of those materials, pending review, for any investigative purposes. While that’s frustrating to the DOJ team, as I’ve covered elsewhere we are 60 days before an election, so we’re well into the “no big news about prosecutions of major political figures if it can be avoided” period.
- It does NOT prevent any classification review or intelligence assessment.
As I mentioned in my previous article on Thursday’s hearing, this was always going to be seen as a partisan ruling regardless of which way Judge Cannon decided. Some will say the fix was in from the start. I personally think the ultimate reason for the decision is laid out right at the start of the document:
Pursuant to the Court’s equitable jurisdiction and inherent supervisory authority, and
mindful of the need to ensure at least the appearance of fairness and integrity under the
extraordinary circumstances presented…
One noteworthy aspect of the decision is the Judge’s interpretation of Nixon v.
Administrator of General Services, 433 U.S. 425 (1977), which was a key part of the DOJ’s argument:
In Nixon v. Administrator of General Services, 433 U.S. 425 (1977), a case involving review of presidential communications by a government archivist, the Supreme Court expressly recognized that (1) former Presidents may assert claims of executive privilege, id. at 439; (2) “[t]he expectation of the confidentiality of executive communications . . . [is] subject to erosion over time after an administration leaves office,” id. at 451; and (3) the incumbent President is “in the best position to assess the present and future needs of the Executive Branch” for purposes of executive privilege, id. at 449. The Supreme Court did not rule out the possibility of a former President overcoming an incumbent President on executive privilege matters. Further, just this year, the Supreme Court noted that, at least in connection with a congressional investigation, “[t]he questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege, are unprecedented and raise serious and substantial concerns.” Trump v. Thompson, 142 S. Ct. 680, 680 (2022); see also id. at 680 (Kavanaugh, J., respecting denial of application for stay) (“A former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim. Concluding otherwise would eviscerate the executive privilege for Presidential communications.”)
This is definitely a narrow reading of that decision. The passage “The Supreme Court did not rule out the possibility of a former President overcoming an incumbent President on executive privilege matters” is especially noteworthy as I suspect that the Judge thinks there is a not insignificant chance that this is going to the Supreme Court and she is highlighting the underlying question for them to answer.
Put a different way, and reading this somewhat generously, Judge Cannon seems to be saying “the decision as to whether or not Nixon applies here is above my pay grade and if I’m eventually going to be overturned, I’d rather it be because I was too conservative versus because I was making up case law.”
She also includes an important footnote with the above passage that could eventually make this all moot:
“On the current record, having been denied an opportunity to inspect the seized documents, Plaintiff has not formally asserted executive privilege as to any specific materials, nor has the incumbent President upheld or withdrawn such an assertion.”
As I mentioned previously, Trump’s legal team has yet to make an affirmative case that some or all the documents are covered by executive privilege. Likewise, the Biden Administration has yet to affirmatively waive the privilege on any of these documents. If or when either of those things happens there may be a need for the Courts to revisit this decision in light of those new facts.
So what is the fallout from this? I turn to two analysts whose work I respect a lot:
Ken White also notes: “I think who she appoints as special master and the instructions given to them will be very telling, along with her subsequent orders.”
Likewise, Renato Mariotti reaches similar conclusions:
Like White, I think this is the wrong decision based on the case law. I also think Mariotti is right that this was an effort to bend over backwards given the uniqueness of the case (if only everyone going through the courts got this level of care).
The next major move is up to the Department of Justice. Above, Mariotti lays out why not appealing might be the best choice (especially if you don’t want this to go to the Supreme Court). Vox’s Ian Millhiser puts the case for letting the Special Master go forward even more bluntly:
Beyond what Millhiser wrote, it’s also important to understand that District Judge decisions do not create any type of precedent. That means no other judge is bound by this decision. If the DOJ was to take this to the Eleventh Circuit and lose, then that would create a precedent in the Circuit (one that the DOJ would prefer not to have).
[Update] Also, the DOJ has more options than just filing an appeal. There is also the option for them to file a motion for reconsideration. It’s a strict standard, but it presents an opportunity to argue there were errors in a District Court decision. They are rarely successful, but if they did it would reveal a lot about their issues with the current decision.
Assuming they don’t appeal or make a motion for reconsideration, then the next thing to watch for are all the documents that file that will set what is looked at (it may just be things taken from the “45 office”), who will be doing the looking, what the evaluation criteria are, and a framework on how much time the Special Master has to make the review.
One thing is for sure, I’m not going to make any predictions–because, if you remember I thought Judge Cannon was ultimately going to rule for the Government. Which is why, folks, you really shouldn’t pay attention to anything I write… or at least when I predict anything.
![[Update] Analysis of NARA's Letter to Former President Trump](https://otb.cachefly.net/wp-content/uploads/2018/02/top-secret-stamp-magnifying-glass-clearance-large-512x256.jpg)
Just one more note–I have seen some question as to whether or not this order applies to all the documents taken in the Mar-A-Lago search or just those from the “45 Office.” I need to look at the original motion from Trump’s legal team to see what that asks for.
One unknown is how far the DOJ got through with their review. I suspect it is already near 100%.
Depends on which review we are talking about (and which documents this applies to).
In terms of the taint review, we know that team already did its work (looking for taint).
My guess is that the DOJ already has identified the most important documents to the investigation, but how much further they’ve gotten is a big question mark.
Trump is complaining today that “despite high crimes and treason, the FBI never broke into the house of Hunter Biden, or, perhaps more importantly, the house of Joe Biden–a treasure trove!”
@CSK: God but I hate his whining, and the fact all his whining is complete fucking bullshit makes me hate it even more.
@Mikey:
I agree. But…gotta rile up the MAGAs, right?
But, will Trump’s special master be firm, yet cruel, with exotic tastes in leather goods and whips?
🙂
The thing is Benito bends over backwards to do things illegally, then relies on the courts showing a deference he does not deserve. I’ll go further and say the president, or the Cheeto, should not be treated in any significant way differently than anyone else facing an investigation, or any other common criminal.
I can’t say for sure, but I wouldn’t be surprised if a former president, or Benito, can ask for material from the National Archives, and get ti in a reasonable time. Maybe not classified materials, but surely everything else.
But no. instead he absconds with boxes of documents, including highly classified ones, and then refuses to return them. Maybe just to show what a big shot he is (spoiler alert: he isn’t).
@Kathy:
Well, everything Trump does or says is at least done in part to inflate his own ego, so you’re not wrong there.
I am cynical enough to agree – just let Cannon’s ruling stand is the best course.
@JohnSF:
Bahahahahahaha.
Yeah, it’s a bad, politically-motivated outcome.
The judge is granting the Trump team a win based on arguments that are barely more than incomplete thoughts. “Oh, this thing that you mentioned but couldn’t bring evidence to bear around? Works for me. Here’s what I’m going to do for you…” The judge then proceeds to apply all tests and make the argument for him.
While I appreciate this sort of advocacy when a person is pro se (because, hey, not-lawyers might bring up a good point but not be able to or not have the capacity/time to fully articulate it or explore it!), it’s bizarre to do this with a person who has a legal team.
@JohnSF:
As featured back in the NYPost in 2015 or 2016, Melania did a portfolio of soft-core lesbian porn involving whips.* Perhaps she could assist?
*Would that be b&d? Or s&m?
@CSK:@Kathy:
Would that was the case.
@ptfe:
Chad Loder pointed this out on Twitter as well and I totally agree. This normally would not happen for someone represented by counsel. Heck, usually pro se filers don’t get this level of deference (again see point above).
@Matt Bernius:
I think it’s Kathy to whom you want to reply.
It’s important to remember: If there ever was “one thing” differentiating the US from banana republics – or, in the words of Trump, familyblog countries – it’s that in the US everyone is subject to the law.
In banana republics, elites are not.
As to this specific item, I wonder if DOJ will appeal. Because they’ve already completed the review and cataloging of every single seized document, this doesn’t stop anything. Moving forward if DOJ is interested in any info, they’ll be dutifully leaving the originals alone as requested.. and looking at their copies.
@charon: I agree. Call their bluff. Trump wants to get his proper ROI for Gorsuch, Kavanaugh and Barrett. Keep the powder dry.
@CSK:
Oops totally right.
I just found this analysis of the decision and the Judge’s failure, in her own words’ to meet the standards for an injunction that I had not seen before. Definitely worth some consideration.
https://threadreaderapp.com/thread/1566844694750867457.html
As opposed to having the DOJ prevail, making it a good politically-motivated outcome?
Still that effect is blunted by the fact of elites being able to hire counsel far above the level of people being represented by public defenders for whom “your” case is one of dawg only knows how many files they have this week. That factor tilts “everyone is subject to the law” considerably.
The problem is that Trump’s ongoing ability to openly thwart the law while endlessly delaying even investigation into those transgressions is itself undermining the appearance of fairness and integrity.
@Matt Bernius:
The deference shown the president is extreme. Not only si there a DOJ directive to the effect that a sitting president cannot be indicted, but there’s hesitation bordering on fear to even investigate wrongdoing by a former occupant of the oval office. This is more like Banana Republic stuff, or divine right monarchy.
In the past few years we know Benito’s been implicated in:
Campaign finance violations
Improper use of US foreign policy for personal gain
Illegal attempts to change electoral results
Tax fraud
An attempted coup
Theft of US government records
Theft of classified materials
Mishandling classified materials.
This is not even a warning to the effect that one day some future president may engage in criminal activities, because that’s already happened. And we’re beginning to see the same contempt for the law in other republican officials, like those who are saying they’ll throw out electoral results if they don’t like them.
I’m not saying that prosecuting and jailing Benito will solve everything, or bring things back to normal. But not prosecuting him will only embolden many others. A message needs to be sent that no one is above the law. And if the law can get trump, then it can get you, too.
It appears to me that the appointment of the special master is unnecessary and that Trump is getting a ruling that no one else would. The amount of deference given by this judge is frankly pathetic. That said, the ruling will have zero impact except delay things a bit but that shows just how ridiculous the ruling is. Really embarrassing for the very young Latina judge which shows a lack of judicial temper and why we need to be more alert when presidents appoint thirty somethings to the bench (or forty somethings to the SCOTUS).
@CSK:
b&b
or
m&s
(niche Brit joke)
🙂
@JohnSF:
Benedictine and brandy? Bed and breakfast?
Marks and Spencer?
The Special Master will need to be someone who understands the seriousness of the documents, and with a security clearance of a very high level. Someone who understands executive privilege.
Might I suggest Bill Clinton?
😀
@Jen:
How about Hillary?
@Jen:
Obama.
He just won an Emmy. He can tell Benito all about how he keeps it next to his Grammy and his Nobel Prize.
@CSK:
I truly was joking, but my reasoning there was that Bill Clinton has been President, thereby weaving in the odd argument about former presidents retaining executive privilege for an unspecified time after leaving office. I think that is such a weird claim and can’t figure out what the judge is getting at, but I haven’t really focused on it, today’s been busy.
@Jen:
I know. This is so bizarre that all one can do is make jokes about it.
I think this is just one of Trump’s delaying tactics, since the DOJ has had sufficient time to examine and catalogue everything and make copies of it.
@Gavin:
Technically they cannot use any flagged document to advance the case during the review period. What that means in practice is TBD.
@Raoul:
Yes and yes.
@CSK:
FWIW, if a document is found by the Special Master to be restricted, then the DOJ cannot use it or retain those copies. That’s all pending any reviews or contestations from the DOJ.
All that said, if the DOJ doesn’t appeal this decision (which could be on a very narrow legal theory like the Judge’s analysis for the special injunction fails on the merits) AND if this is done correctly (I know that a lot of people will latch onto “correctly”), then it should primarily screen out just the documents already identified by the “taint” team. Those are not likely to be documents that would have been used in a prosecution (should an indictment happen).
We’ll know more once the judge releases more details, but this review could be over in a matter of weeks.
@Jen: Digby quotes a righteous rant by Kurt Eichenwald, including this business of lingering privilege.
I’ve been reading for weeks that only the sitting president can assert privilege. But I haven’t seen any sort of analysis, as though it’s simply obvious. The judge seems to be saying some privilege attaches to an ex-pres. IANAL. Privilege is supposedly justified as necessary for a prez to get honest advice. That argument would seem to imply advisors should receive some cover after the administration changes. But Eichenwald also makes sense. Surely the ex prez can’t withhold state information from the current prez. I expect I’ll see a lot more discussion of executive privilege this week.
It’s been possible to feel the courts backstop reality. Whatever people say otherwise, once you’re in court you have to have actual evidence and reasoned arguments. A few of the Trumpy judges seem not so much. Didn’t Thomas and/or Alito brag about not reading main stream media? I’ve commented that conservatives seem to be Calvinist. They believe virtue is a thing you are, not what you do. Newt Gingrich, and TFG, are good family men no matter how many affairs and divorces they go through. Judge Cannon seems to believe being president is inherent in Trump.
@gVOR08:
I touched on this in the article. I don’t agree with the Judge’s interpretation of Nixon v. GSA–I’m not sure most people do (the DOJ definitely didn’t). I also don’t think her reference to the Congressional investigation is particularly on point, given that what we are seeing here is current executive branch versus previous executive branch. I don’t see how claims of previous privilege would survive that (but good luck predicting either the 11th circuit or the current USSC).
Again, here’s is my earlier take on this from the post:
While, again, I disagree with this line of reasoning, I also don’t see it as completely out of line for a conservative District Court judge.
All that said, I think it’s also fair to ask if my reaction to this is another example of slowly boiling a frog (or a dog sipping coffee in a shop on fire).
If the judge denied the special master, TFG would have appealed, slowing the procedure even more. In some ways this is calling his bluff, if the ‘taint’ team could do its work in a couple of weeks, then a special master can as well. If TFG had appealed a denial, it is likely an injunction would be placed and everything would stop till an appeals court ruling that would occur, when?
@Stormy Dragon: Fairness and integrity is something for which there will be no standard that suits both sides. 🙁
@Kathy: But the law can get me irrespective of whether it can get trump or not.
It is possible the judge is playing a somewhat more subtle game here. She may appoint a special master, satisfying Trump, but a master who is unlikely to find that former presidents have any sort of privilege beyond standard attorney-client.
I think it extremely unlikely that the judge will name a military special master for a case centered around civilian rights. But I’m not much better at guessing these sorts of things than Matt.
Ten gets ya twenty whoever is selected as Special Master will be unacceptable to the Trump legal team, and an appeal or motion will be filed against whoever it is too. Flood the zone.
Judge Aileen Cannon, a Federalist Society member, is only 41 years old, she’s going to be on the bench for a long long time.
@Just nutha ignint cracker:
You specifically, or me, or anyone in this blog and comments section, yes.
You meaning other actual or potential Republiqan officials, not so much.
Consider the people who took part in the January 6 Putsch. I said around then they either didn’t consider their actions criminal, or were counting on a pardon from the Cheeto of their Devotions. They were wrong on both counts.
But consider Steve Bannon, Roger Stone, Paul Mananfort, and others. They knew they were engaging in criminal activities, and were counting on a pardon. They were not wrong.
And lately Benito’s been saying he’s supporting the Putsch participants and will pardon all of them if he wins in 2024. I don’t believe the first for minute*, but the second is a distinct possibility. In particular the ones charged with seditious conspiracy.
So, whom can the law get, if it doesn’t get trump?
@dazedandconfused:
That is not outside the realm of possibility.
One of the points raised by the DOJ is that the unique nature of this case makes it hard to find someone who has the necessary level of security clearance and skills to perform in the role. Kyle Cheney captured this with the following tweet.
Definitely, if the Trump attorneys are only willing to settle for someone like Michael Flynn, then that will tell us a lot.
Also, the DOJ has more options than just appealing the decision. There is also the ability to file for reconsideration. More details on that potential strategy here:
https://threadreaderapp.com/thread/1566882444774604801.html
@al Ameda:
The Federalist Society is everything. Her appointment by Trump is nothing. We’ve seen FedSoc judge after Fedsoc judge torture the law until they get a result that aligns with Republican priorities.
@CSK: Not only rile them up, but also instruct them what to tell each other in the endless torrent of tripe they love to post in their massive online discussion boards.
@Michael Cain: Your comment illustrates what I find so confusing about this order. On my understanding, special masters aren’t appointed to decide difficult issues of legal interpretation that are too hard for the appointing judge. Their role is typically to conduct a review of documents that would be too time-consuming for the judge, and to hand in a report recommending which, if any, are covered by attorney/client privilege according to well-established legal precedent.
Here, Cannon is saying nobody knows the extent to which executive privilege can be asserted by former presidents against the current administration, so she’s going to let a special master devise an appropriate standard. How, exactly? By convening hearings of the parties to hear argument on the matter? By “doing their own research” and making up principles out of whole cloth? It seems to me the whole process will inevitably lead to claims by one party or the other that the special master adopted the wrong test/s, which will have to be decided in the first instance by Cannon, and subsequently by a series of appeal benches. It’s tailor-made to stall progress in the investigation until the Supreme Court finally takes an appeal in 2024, decision to be issued in 2025, which I imagine is Cannon’s whole intention.
If Cannon was sincerely concerned about “the appearance of fairness and integrity”, as she claimed to be, she would have recused herself from the case. Trump may or may not have appointed a loyal supporter to his own Palm Beach district after he lost the election in order to have a tame judge protecting his interests, but that is certainly what millions of Americans will conclude after this decision.
@CSK:
Correct!
Bed and breakfast, Marks and Spencer.
You wie todays Britranslate prize. 🙂
Trump shopped for a judge, and he got exactly what he paid for.
He stole Government property, he lied about having it, and now he’s being given special treatment, by a partisan judge, for having done so. She is ignoring both the law and the facts in order to concoct this decision, which she telegraphed prior to hearing any argument.
And we are still no closer to understanding WHY he took the documents, much less what he has done with them in the year and a half he has had them at his Tennis Club.
Keeping in mind that I think this was wrongly decided, I want to quickly address two talking points that I’ve seen come up again and again.
@Ken_L:
Cannon was not nominated after Trump lost the election.
I realize to your point that won’t cause people to stop claiming that she was nominated after the election, but unless Trump had a time machine, suggesting this was his “exit” plan seems a little strange.
@Daryl and his brother Darryl:
Typically shopping for a judge means choosing a district or venue that the plantiff feels will be beneficial to their case. That wasn’t what happened here. This hearing had to occur in the Southern District of Florida because that is where Mar-A-Lago was located.
Additionally, the plaintiffs don’t get to choose the judge that is assigned to the case. Each district has its own rules for this (something I covered in a previous article). Additionally, this had to be heard by a District Judge because of the type of issue at hand. The judge who approved the warrant was a Magistrate Judge and does not have the statutory power to rule on this issue.
Again, I don’t agree with the decision on the merits (even less so today). I also don’t think it’s as “end of the world” as a lot of other folks. And I also think where possible we should be trying to stay true to the facts of the case (not to mention how the Federal Courts work).
@Matt Bernius:
If you file in a district that has a predominance of MAGA judges, chances are you will get a MAGA judge. In addition Trump has a history of filing in Ft. Pierce in hopes of getting this judge. Then, the judge herself admits she doesn’t have jurisdiction in this case, the proper venue for any privilege litigation is with the federal courts for the District of Columbia, but then she proceeds to rule regardless.
The former guy is being held above the law. Again. But no big deal.
@Daryl and his brother Darryl:
Can you point out where she started that? I had not read that.
Also
You were completely right about that, apologies. I had mistakenly thought this was heard in West Palm Beach. For those interested in this, here is a good read on it:
https://www.bloomberg.com/news/articles/2022-09-06/trump-appointed-judge-courts-controversy-with-mar-a-lago-order
@Matt Bernius:
It’s in footnote 16:
@Daryl and his brother Darryl:
Thanks. That’s helpful.
I just reread that section and it’s tied to the previous footnote (15) which I cited above. It’s not going to make you happy, but I think her logic here is again defensible. In 15 she notes that neither party has made a claim of privilege (or waiving privilege) yet.
I read 16 as saying if either party had affirmatively made a claim that would require a change in venue.
If the FL Special Master finds documents that they believe could be covered by Executive Privilege (one of the three things they are reviewing for), and the Trump attorneys want to make that claim, then the status of those documents would have to decided in DC.
I realize this is a bit of an expert reading (I did confirm it with my live-in federal law expert) but it’s different than saying “has no jurisdiction” in this case.
@mattbernius:
But that is factually incorrect on the MAGA judges part; Biden delegated his decision to the Archivist, who decided not to honor, after months of delay, Trump’s request to review for privileged items, effectively denying the former guys claim to privilege.
Again – IANAL…but at the end of the day it seems that the DOJ going out of it’s way to give deference to the former guy only encourages him to take more liberties and his Federalist Society MAGA judges to go along.
You, me, anyone, caught with top secret documents in our desk drawer would have been immediately walked out in cuffs.
The Judge admits as much;
Yes – of course. If you can’t do the time, or handle the stigma, don’t do the crime.
Trump is being treated as though he is above the law, and so he is acting like he is above the law.
I’m probably being unusually stupid, but if neither the current or former President has made any claims about executive privilege in this case, why is the judge making her decision based on the potential impacts of executive privilege claims and her interpretation of Nixon vs GSA? Shouldn’t a judge be ruling on what is in front of them, not what might theoretically be claimed at some future point by one party?
@mattbernius:
I just don’t see how Trump’s attorneys can make an executive privilege claim when he is no longer the executive.
We only have one chief executive at a time. Even during the lame-duck session, it’s clear who has authority. Trump is no longer president, and he’s holding onto documents that are the property of the current administration. With the exception of personal papers and items covered under attorney-client privilege, what he was holding were records that are the property of the government/current administration.
I truly do not understand this argument of lingering executive privilege. How on earth could we run a government when parties change at the Presidential level if an outgoing president can basically lock down a bunch of documents by asserting “lingering EP”?
@Daryl and his brother Darryl, @Just Another Ex-Republican, @Jen:
You’ve all raised some good questions that I don’t think can easily be answered in the context of comments. I want to do a bit of research on each and will attempt to answer them in a new post. If there are other questions, please let me know.
@mattbernius: Thank you.
I’ll further clarify what is confusing to me about this (I am certain that you understand, but this is the nut of it):
Executive privilege exists to protect communications within the executive branch, and exercising this right is about allowing governmental functions to continue unimpeded by judicial or congressional oversight. Since Trump is no longer the Chief executive, how can he claim executive privilege when he no longer has an administration that needs to continue to function?
@mattbernius:
Thanks, Matt. I truly appreciate the effort.
I’m just not sure how far you’ll get with a logical analysis of what has been, outside of the MAGA-verse, a near-universally derided decision.
Even “HatMaster” seems to be saying that this decision is deeply flawed, but there is no reason to worry. Yet.
So if I’m seeing the big picture here; Presidents cannot be indicted while in office, nor when they leave office.
Kind of the definition of “above the law.”
So Trump hasn’t claimed privilege. It’s not clear, according to Cannon, whether he can claim executive privilege. But she’s going to appoint a special master to examine the documents and decide which ones might be covered by executive privilege, depending what the law turns out to be, and what Trump might claim once he knows what they are. And then some other judge can hear the case which she’s manufactured out of whole cloth, without it having been established that she had jurisdiction to do it in the first place. She couldn’t have designed a better vehicle to delay the whole investigation for years if she’d tried, which is why so many people believe she did.
What. A. Farce.
There’s been excellent discussion of the matter over at Lawyers Guns & Money. One school of thought is that Garland should tell Cannon she has no authority to make such an order, and the government intends to ignore it. Put the onus back on her and Trump to decide what to do in response. Once judges resort to partisan game-playing, Democrats will lose if they pretend nothing is amiss and keep following conventional norms.
@Daryl and his brother Darryl:
@mattbernius:
Anxious to see how the new revelations, in the WaPo reporting, impact your thinking.
There are only two reasons to have that document. You’re selling it to someone, or you traded something else for it. Neither is good.
LOCK HIM UP!!!