Trump’s Reliable Cannon

The former president shopped for the right judge.

[Judge Cannon's decision]

Let’s cut to the punchline: I was wrong about District Judge Aileen Cannon. Throughout my writing on the Affair de Mar-A-Lago docs, I have tried to give her the benefit of the doubt. And with each action and decision, she has demonstrated that she doesn’t deserve it. I thought her initial decision to appoint a Special Master, though ultimately wrong on the case law, was defensible. However, last night’s denial of the DOJ motion for a partial stay of the order pending their appeal, well… it’s a doozy.

Since my writing time today is limited, I’m going to farm out my analysis to former Federal Prosecutor Renato Mariotti:

In her initial decision, Cannon treated the Trump legal team like a prosae petitioner (someone who files without a lawyer) and basically build their case for them. The DOJ then filed a really smart and tight request for consideration that provided Cannon with a perfect off-ramp to a compromise decision (allow the investigation to continue with certain documents clearly marked classified AND still move forward with the Special Master in the meantime). Many legal experts, including Mariotti, assumed the Judge would take it. To Mariotti’s final tweet above–even knowing that the DOJ appeal is inevitable–she dug her heels in and didn’t bother to even address the substantive claims of the DOJ.

Law Professor Orin Kerr (who definitely isn’t a political progressive) nicely sums up Cannon’s position thusly:

(Click through to this short thread for a solid geek joke wrap up)

Couple of final thoughts on this:

  • One telling thing is that while the decision is being celebrated by supporters of the former President, few, if any, are actually diving into why it is a correct decision based on the law and case precedent.
  • This is definitely going to the 11th Circuit. How they decide is anyone’s guess as they can be all over the place, especially when it’s just a three-judge panel. I expect the DOJ will ultimately win out. And, without a doubt, this will go to the Supreme Court. And again, I don’t know how this comes out there either. If the Trump side wins, it will be a major curtailing of sitting executive power no matter how tightly they try to finesse the decision to only apply to this particular case.
  • The one “good” thing that came out of this is that retired Federal Judge Raymond Dearie was named special master. He was a pick by the Trump team and the DOJ noted that he was acceptable to them. It’s a bit surprising that the Trump team picked him as he was part of the FISA court that approved the surveillance on Carter Page. For a testament to Judge Dearie’s character see this 2018 Twitter thread by noted progressive public defender and civil rights attorney Scott Hechinger who had clerked for him.
  • Some folks who follow my broader writings on criminal legal system matters may question why someone who is normally pretty skeptical of state power is siding with the DOJ on this or has been so deferential to a judge. On the DOJ, I am siding with them based on the quality of evidence and legal theory they have provided to date. As with all things, if evidence arises to contradict that, then I reserve the right to say “I was wrong.” As to the deference to Federal Judges, I have personal connections to the Federal Judiciary and have watched them work. And, in general, I think most folks on that bench, though ultimately political appointees, try hard to make good, grounded judgments (and more importantly avoid being reversed). So that’s my default assumption until proven wrong (as in this case). And I will continue to take this approach (even with Trump administration nominees).
  • Finally, while it’s clear that Trump has ended up with a very sympathetic judge in his district, I’m not particularly swayed by the idea that her appointment was some form of “Nth dimensional chess” or other conspiracy theory. I think there is ample evidence that type of forward planning was never that administration’s strong suit (remember she was nominated well before the 2020 election). The reality is he nominated a LOT of judges. All that said, I think Orin Kerr is onto something when he wrote yesterday:

Actually, I don’t think Kerr goes far enough. I suspect Judge Cannon is already on Trump’s Supreme Court shortlist.

FILED UNDER: Law and the Courts, National Security, Supreme Court, The Presidency, US Politics, , , , ,
Matt Bernius
About Matt Bernius
Matt Bernius is a design researcher working to create more equitable government systems and experiences. He's currently a Principal User Researcher on Code for America's "GetCalFresh" program, helping people apply for SNAP food benefits in California. Prior to joining CfA, he worked at Measures for Justice and at Effective, a UX agency. Matt has an MA from the University of Chicago.

Comments

  1. Mikey says:

    Let’s call this what it is: corruption. Cannon is no longer acting as a judge, she is acting as Trump’s counsel. His privilege comes before everything–before her own integrity (such as it is), before national security, before the law itself. She is 100% on his side and will do all she can to help him avoid the punishments he so richly deserves.

    It’s disgusting, really.

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  2. Mikey says:

    From Talking Points Memo, further illustration of my point above.

    Cannon’s order denying the DOJ’s stay request is insane enough that it seems to have overshadowed the other thing she did yesterday: issuing the attached “order appointing a special master.” The actual details of the order are gobsmackingly bad: the order neuters Dearie’s authority before the process begins, boxes in the DOJ, and puts Trump’s counsel in the driver’s seat of the entire process.

    Normally, a special master would step in as a neutral party to sort out privilege matters — essentially, he would do the same thing that DOJ’s taint team did, but with the imprimatur of impartiality. This means a special master reviews the documents, identifies those where privilege might arise, and then consults with the party to come to a resolution on whether privilege exists or not (ruling on the matter if the parties can’t agree). Cannon’s this order subverts that setup, giving Trump’s counsel a lead role in the process and consigning the special master to a backseat role.

    Pages 3-5 are worth a look. Cannon imposes an insane “precise workflow” that gives Trump’s team full access to all of the seized documents, including the classified ones, and then allows Trump to sort the documents into four buckets. The four buckets are designed to block the DOJ from continuing to make some of the major arguments raised in its briefing — namely, that many of the seized documents are government records not subject to the PRA. The special master only weighs in afterwards this review, and Cannon goes out of her way to make explicit that she will review all of his decisions de novo (aka without any deference to his recommendations). On top of all this, Cannon instructs the DOJ to secure all necessary clearances for Trump’s team — which, if WaPo’s reporting is to be believed, means reading his lawyers into a cabinet-level SCI compartment usually cleared for only a handful of people.

    Honestly, there’s barely a reason to appoint a special master if this is going to be the process. Which, of course, is presumably what Cannon wants.

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  3. gVOR08 says:

    I am heartened by Judge Dearie’s selection. But my joy is tempered by both the lack of need for a special master and remembering how many establishment types said the same things about Bob Barr’s and John Durham’s high minded integritude when they were appointed. I have to assume there’s a reason Trump’s people teed up Dearie.

    You’re right, Cannon isn’t a product of 11 dimensional chess on Trump’s part. She’s the product of a long laid plan by the Kochtopus to corrupt the federal judiciary. Get used to it, we’re going to see a lot more judging based on the GOP fake news alternate reality. If and when this reaches the Supremes, Trump, and Cannon, may be in for a surprise. The GOP Supremes are loyal to the Federalist Society and Koch’s money, not to Trump.

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  4. Matt Bernius says:

    @gVOR08:
    On the plus side, one of the many quiet successes of the Biden administration is the number of Federal Judges they’ve been able to appoint to date. It’s been on my “to write about” list for a while.

    https://www.pewresearch.org/fact-tank/2022/08/09/biden-has-appointed-more-federal-judges-than-any-president-since-jfk-at-this-point-in-his-tenure/

    (I need to embrace the “tab cleaning” format)

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  5. @Matt Bernius:

    I need to embrace the “tab cleaning” format

    Sometimes that is the only way to roll 😉

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  6. Matt Bernius says:

    @Steven L. Taylor:
    I think it’s brilliant. And now James is doing it too!

    So I really need to join the cool kids’ tab-le!

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  7. Kathy says:

    The one “good” thing that came out of this is that retired Federal Judge Raymond Dearie was named special master. He was a pick by the Trump team and the DOJ noted that he was acceptable to them. It’s a bit surprising that the Trump team picked him as he was part of the FISA court that approved the surveillance on Carter Page.

    IMO, the Benito team picked him as a scapegoat rather than special master. He’ll get the blame, and invective, adn MAGA rage adn death threats, when he lets something that harms the Big Cheeto through.

    And let’s be clear: Executive privilege now means the freedom by the executive to commit crimes in and out of office.

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  8. gVOR08 says:

    @Kathy: As @Mikey: well points out, Cannon is retaining decision making authority for herself, making the special master basically a clerk passing material to her for adjudication. Hopefully Dearie’s as good as everybody claims and will put some bumps in that road. Assuming the Eleventh Circuit doesn’t put a stop to Cannon’s nonsense.

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  9. Argon says:

    Honestly, in a sane world, membership in the Federalist Society would be an immediate disqualification for a judgeship.

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  10. al Ameda says:

    Hate to say it but ….Trump skates again.

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  11. Mikey says:

    @gtconway3d
    Also, the duck is wearing a big red-bordered sign that says, in big bold red capital letters, “THIS IS A DUCK.”

    And we have PHOTOGRAPHS of the duck and the red sign.

    @AWeissmann_

    “I know it looks like a duck, walks like a duck & quacks like a duck, and defendant submits an affidavit it’s a duck, and plaintiff does not dispute it’s a duck, but I say there is a factual dispute whether it’s a duck.”
    Judge Aileen Cannon

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  12. Kingdaddy says:

    I’d say “corruption” is a mild word for where we may be headed. The term “dual state” comes to mind.

    Explaining that reference will take longer than a comment (even some of my very lengthy comments on this blog). Time permitting, I may write a post about this soon.

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  13. Raoul says:

    We are not there yet, but eventually we may be getting to the point that holding national secrets is more important than prosecuting Trump, so the DOJ may tell Judge Cannon to stuff it in her very little head.

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  14. Matt Bernius says:

    @Kingdaddy:

    Explaining that reference will take longer than a comment (even some of my very lengthy comments on this blog). Time permitting, I may write a post about this soon.

    For the record Kingdaddy, I would read the HECK out of that post.

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  15. Matt Bernius says:

    @Raoul:

    We are not there yet, but eventually we may be getting to the point that holding national secrets is more important than prosecuting Trump, so the DOJ may tell Judge Cannon to stuff it in her very little head.

    Just to be clear, there is a way for them to do that and it’s an appeal to the 11th circuit. If they think that it’s a really big issue, then they can seek emergency relief.

    However, just telling her to stuff it and ignore the order would actually be really bad from a constitutional perspective–and something none of us should support.

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  16. Jay L Gischer says:

    There is chatter that the whole thing is vulnerable to a jurisdiction challenge since certain of the laws that were cited as potential violations specify that court actions have to be brought in the DC Circuit, not the FL Circuit, under which Judge Cannon serves.

    I have no idea where this is going. I mean, going so bonzo probably gives Cannon and Trump the advantage of surprise.

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  17. Raoul says:

    @Matt Bernius: We obviously don’t know what are in the documents, but if an asset is placed in harm’s way (see Kushner/MBS), you would not support withholding the identity to protect that person? This assumes the appeal courts rule for great deference at the district court level.

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  18. Matt Bernius says:

    @Jay L Gischer:

    There is chatter that the whole thing is vulnerable to a jurisdiction challenge since certain of the laws that were cited as potential violations specify that court actions have to be brought in the DC Circuit, not the FL Circuit, under which Judge Cannon serves.

    My understanding is that only comes into play if either side makes an affirmative argument about the classification status of the documents. For whatever reasons the DOJ hasn’t done so thus far, and despite the former President’s public comments about all these documents being declassified, the Trump legal team has been very careful not to do so in court.

    @Raoul:

    if an asset is placed in harm’s way (see Kushner/MBS), you would not support withholding the identity to protect that person?

    Absolutely not. It’s for the exact same reason I don’t support John Yoo’s argument that we should be able to crush a child’s genitals in a ticking time bomb situation. We either choose to be a nation of laws or we don’t.

    More importantly, we have just spent four years seeing what type of slippery slope damage is possible when we start deciding some laws don’t apply to some people or in certain circumstances.

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  19. Jon says:

    @Matt Bernius:

    My understanding is that only comes into play if either side makes an affirmative argument about the classification status of the documents.

    Or if DOJ decides YOLO fuck it let’s just go ahead and charge him with a crime related to these documents in D.C., one that doesn’t depend on any of the documents Cannon placed in limbo. That’d most likely get stuff consolidated up to the D.C Circuit.

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  20. Matt Bernius says:

    @Jon:
    Oh, yeah, 100% to that. If they charge, then everything changes.

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  21. Jay L Gischer says:

    @Matt Bernius, @Jon:

    Yeah, DOJ is being either cautions or cagey. I would think they have a very solid case against him right now. Maybe they think they can bait him into providing evidence of further crimes?

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