Aileen Cannon’s Special Master Is Designed to Preempt Decisions Reserved for a Jury
As I reported, Aileen Cannon denied the government’s motion for a stay and issued her order laying out what she expects Raymond Dearie to do. Having considered her order, I’m fairly certain that this is a plan not for a Special Master, but rather a plan to seize back the materials, and along the way, punish the government for having the audacity to investigate Trump, much less tell him what is and is not classified.
Here are the relevant documents and some other Special Master materials to compare to.
Joint response on Special Master
Trump proposal for Special Master
DOJ proposal for Special Master
Kimba Wood’s order of appointment for Michael Cohen (docket)
Paul Oetken’s order of appointment for Rudy Giuliani (docket)
Analisa Torres’ order of appointment for Project Veritas (docket)
Before I lay out how Cannon has set up this SM review to allow herself the means to steal US government property and punish the government, consider the following:
- Cannon has already upended the logic of a lawful warrant, in which the government has presumptive retention of the seized materials, by instead assuming that the government can only retain materials they prove ownership of. Cannon has largely ignored the nature of the suspected crimes here, and the degree to which her decisions would claw back materials that are evidence of a crime.
- Cannon has created the harm she intends to correct, most obviously by refusing to let the government share potentially privileged material, and then pointing to their retention of potentially privileged material as the harm she must address.
- Cannon has already told the government, repeatedly, that she can override their classification decisions and withhold materials based on an Executive Privilege claim that under the Presidential Records Act, would prove it belongs in NARA (indeed, at each step, Cannon has been more insistent that Trump has EP claims than he has).
Cannon’s order denying the stay continues those three stances. She cited her own claim — based off misrepresentations and inventions — that were disputes about privilege and non-evidentiary personal material. Rather than demand that Trump show ownership and harm (the standards she needed to find under binding precedent), she instead said he simply hadn’t had a chance to make his case:
Plaintiff has not had a meaningful ability to concretize his position with respect to the seized materials given (1) the ex parte nature of the approved filter protocol, (2) the relatively generalized nature of the Government’s “Detailed Property Inventory” [ECF No. 39-1], and (3) Plaintiff’s unsuccessful efforts, pre-suit, to gather more information from the Government about the content of the seized materials
Again, it was Cannon’s own order that forestalled a privilege discussion, and she now cites it to justify her decision. Cause the harm, then fix it. Finally, she lays out a claim that the government does not have a monopoly on determining what is classified.
The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them.
From the very start, Aileen Cannon has asserted — often more aggressively than Trump — that the government cannot make decisions with regards to classification and privilege that, under the Constitution, are reserved for the government.
With all that in mind, consider the following aspects of her order. First, taken literally, her order instructs the government to give Dearie the actual documents seized, not copies.
At a minimum, the Government shall make available to the Special Master the Seized Materials, the search warrant executed in this matter, and the redacted public versions of the underlying application materials for the search warrant. [my emphasis]
Effectively, she took out the government’s use of the word “copy” in this passage.
In particular, the government will provide to the Special Master a copy of the Seized Materials without Classification Markings, the search warrant executed in this matter, and the redacted public version of the underlying application materials for the search warrant.
In both the Rudy and Cohen Special Master reviews, the government provided the Special Master copies. Admittedly, those reviews were largely digital evidence, but her order states the government only needs to give copies of potentially privileged items to Dearie.
The Privilege Review Team shall provide copies of the potentially privileged documents to Plaintiff’s counsel. [my emphasis]
That is, taken literally, Aileen Cannon is ordering the government to deliver 11,258 government documents — the originals — into the possession of a Special Master controlled by her, the disposition of which she will determine. That disposition will, in many ways, pertain to classification and Executive Privilege, topics about which she has already asserted she can override the government.
The first thing Dearie is to do after receiving these materials is to double check the government’s inventory.
Verifying that the property identified in the “Detailed Property Inventory” [ECF No. 39-1] represents the full and accurate extent of the property seized from the premises on August 8, 2022, including, if deemed appropriate, by obtaining sworn affidavits from Department of Justice personnel;
I’ve not seen this in Special Master reviews before. It seems designed to give Trump and Cannon reason to invent a Fourth Amendment harm (again, at the Special Master stage, not at a suppression stage) where there is none.
For each of the reviews she is asking Dearie to conduct, the two sides present their designations. If they agree, the items are disposed of according to the “parties’ agreement.”
If the Privilege Review Team agrees with Plaintiff’s position, the subject document shall be handled in accordance with the parties’ agreement.
[snip]
If the Government agrees with Plaintiff’s position, the subject item or document shall be handled in accordance with the parties’ agreement.
The problem with even this part of her order is that the parties don’t agree what happens with the various categories! Trump’s proposal only addresses what happens with Presidential Records. He concedes they should go to NARA, but he wants to be able to challenge access once they get there.
Once the Special Master has completed the review process set forth in this Order and any dispute has been fully adjudicated, any documents identified as Presidential records will be returned to the Archivist of the United States, and the process under the Presidential Records Act, 44 U.S.C. § 2204, will be followed to determine the assertion of any restriction on access.
The implication is that personal items — even items responsive to the warrant — will go back to Trump’s possession.
DOJ doesn’t actually address what happens with personal items, aside from giving NARA a chance to dispute Trump’s claim. But it only envisions returning privileged items, and in that case, only those that are attorney-client privileged.
iii. For any documents and items claimed by Plaintiff as personal documents and items – not privileged, the Special Master will review the claim in consultation with NARA;
iv. For any documents claimed by Plaintiff as personal documents – privileged as attorney-client communications or qualified work-product immunity, the Special Master will submit those additional potentially privileged documents to the government’s filter team and follow the process in 4(a);
v. For any documents identified as Presidential records – not claimed by Plaintiff as subject to Executive Privilege, those documents shall remain in custody of the government, with copies sent to the Archivist of the United States, and may be used by the government forthwith for any lawful purpose, including in the government’s criminal investigation;
vi. For any documents identified as Presidential records – claimed by Plaintiff as subject to Executive Privilege, copies of those documents will be sent to the Archivist of the United States, and the process under the Presidential Records Act, 44 U.S.C. § 2201 et seq., may thereafter be followed.
Cannon, on her own, gave Dearie authority to make Rule 41(g) determinations, meaning Trump can demand stuff lawfully seized under a warrant rather than waiting until he is charged and suppressing it.
Evaluating claims for return of property under Rule 41(g) of the Federal Rules of Criminal Procedure;
Because Cannon didn’t decide what will happen with various categories of documents, it is guaranteed there will be disputes.
That may be by design. In cases where there is a disagreement, Dearie makes a decision, but if one side still disagrees, then it goes to Cannon. She will not review his recommendation in such cases, she will make a de novo determination.
If the Government agrees with Plaintiff’s position, the subject item or document shall be handled in accordance with the parties’ agreement. If the Government disagrees with Plaintiff’s position, the dispute shall go to the Special Master for a report and recommendation and, if either party objects to the report and recommendation, to the Court for de novo review and decision.
To be clear: both sides asked Cannon to apply a de novo standard in case of a challenge to Dearie’s ruling (it may be standard for that circuit). It is a problem primarily because she hasn’t determined what will happen to various categories of items. And about several of those items — such as classified documents that Trump claims he owns — she has already said she sides with him. So all Trump has to do to steal classified documents, Aileen Cannon has made clear, is appeal Dearie’s decisions, and she’ll do what she has said she would do from the start: override the government’s decisions about both classification and Executive Privilege.
Cannon’s stated predisposition in the matter is problematic for another reason. There’s boilerplate that appears at the end of Special Master appointments. This is Trump’s version (DOJ’s version has stronger language about a protective order).
15. The Special Master will be discharged or replaced only upon order of this Court.
16. The parties and their agents and employees will observe faithfully the requirements of this Order of Appointment and cooperate fully with the Special Master in the performance of their duties.
17. The parties and their agents and employees will observe faithfully the requirements of this Order of Appointment, cooperate fully with the Special Master in the performance of their duties, and comply with the judicial protective order that shall follow – which will set forth restrictions on the disclosure by any person with access to Seized Materials and any documents generated in connection with this Order of Appointment.
18. The Court reserves the right to remove the Special Master if the Court finds that the parties are not expeditiously completing this work. [my emphasis]
But in her order, Cannon replaced the boilerplate about removing the Special Master if things are not moving along with language that gives her authority to remove him unbound by any specific reason.
17. The Special Master shall be discharged or replaced only upon order of this Court. The Court reserves the right to remove the Special Master.
18. The parties and their agents and employees shall faithfully observe the requirements of this Order and fully cooperate with the Special Master in the performance of their duties.
19. Consistent with and in furtherance of this Order, the Court will separately enter a judicial protective order that sets forth restrictions on disclosure for both the Special Master and the parties, and any agents or employees thereof. The parties shall submit a proposed protective order within five (5) calendar days following the date of this Order. [my emphasis]
In other words, the same judge who has unilaterally decided that she can override government determinations about classification and Executive Privilege has also reserved for herself the right to replace Dearie for no reason.
And to be honest, while the statement Dearie signed is entirely boilerplate, I am concerned that if there are materials pertaining to Carter Page’s FISA in there (I think it likely that Trump had a copy somewhere, though both earlier batches of documents included FISA information so the government may already have it back), then it would represent a conflict, because it might make him a witness to claims Trump wants to make about injury to himself.
3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
At the very least, the terms of this order, combined with Cannon’s repeated insistence that she has the authority to override the government on issues of classification and privilege means she will decide, herself, issues that would go to the core of the crimes of which Trump is suspected. In Espionage Act trials, juries get to decide whether something is National Defense Information, but Cannon has set this review up such that she can decide all those issues on her own, without a jury, before Trump is ever charged.
But it is really really easy to see how Cannon replaces Dearie with Paul Huck Jr, who is basically a Republican lobbyist, and with him starts to invent more harms she can then adjudicate. And at that point, Judge Cannon would use this Special Master review to make yet more false claims of abuse on the part of DOJ.
Go to emptywheel resource page on Trump Espionage Investigation.
Given all this (including her impressive academic and professional credentials), it seems like the two most likely explanations for Judge Cannon’s rulings are 1) Trump (or someone close to him) has, and is using, some sort of leverage over her or; 2) she’s a radical political ideologue with no regard for settled law.
In either case, shouldn’t there be evidence that an investigative reporter/team could dig up and publish?
Reporters have already dug that up, she’s a young federalist society weirdo.
I wonder whether she ever stayed in a Trump hotel?
Thanks for your response. Okay, so she’s “a young federalist society weirdo”. That’s not particularly useful information, in the current situation.
Demonstrating (if it’s true) that she has a documented history of radical, anti-democratic, anti-constitutional disrespect for the law might be useful. As would (again, if it’s true) that Trump and/or his allies have some sort of leverage over her.
Otherwise, we’re just playing into the “both sides” frame that too many journalists are already predisposed to. The Federalist Society is one side; the American Bar Association is the other side. Neither side likes the other. Nothing to see here folks other than politics as usual.
Nonsense. For starters, Cannon is attempting to be a player, she is not simply subject to someone else’s leverage. And equating the FedSoc with the ABA doesn’t hold water. The two are not comparable in membership, aims, networking, or power, especially not after the $1.6 billion gifted to Len Leo’s pursuits.
I’m wondering if her responses are from the Federalist Society. They seem to be to in depth, covering to many, what if strategies by the DOJ. Much greater than what she individually could come up with. Why wouldn’t they be doing this? This is their opportunity to “drown” the government. Their life long goal.
I agree whole heartedly that Fed Soc essentially wrote this opinion. (and the Nichols J6 abomination too.) But it would be very hard to prove unless someone leaks. The opinion seems intentionally crafted designed to generate more heat than illumination. It raises a number of novel legal issues, many of which are going to be heard and decided by the non binding opinion of an SM who does no more than report back to Cannon, who still retains all authority. It also generates a limitless set of appealable issues. Appeal to Cannon from SM decisions. Shifting Appeals to 11th Circ. by both parties, Appeals from the 41(g) motion when it happens. Ultimately appeal to SCOTUS on multiple seems inevitable.
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The Bar Association and the Federalist Society are not “two sides”
The Bar Association is concerned with legal ethics and qualifications. The Federalist Society is an overtly partisan and extremist advocacy group.
Well said.
This isn’t Connan disputing law, this is the Federalist Society working to undo law working through her. The DOJ needs to keep this in mind as they dispute “her” rulings.
This isn’t Connan disputing law, this is the Federalist Society working to undo law working through her.
exactly… not for one second have I ever thought Cannon wrote any of the rulings on this… straight from the FedSoc… and trump was told to go to her…
Provide evidence please.
not the first attempt to get “his judge” appointed to a case….
“I note that Plaintiff filed this lawsuit in the Fort Pierce division of this District, where only one federal judge sits: Judge Aileen Cannon, who Plaintiff appointed in 2020,” Judge Donald M. Middlebrooks of the Southern District of Florida wrote in a footnote on a separate motion.
“Despite the odds, this case landed with me instead,” Middlebrooks wrote.
Ray Dearie is every bit as much Merrick Garland’s Special Master as Aileen Cannon’s.
Are you writing in code?Dearie has nothing to do with the discussion in hand.
We have a corrupt judge and the legal system is failing us
Standing out there by itself, your statement is quite cryptic. If, legally, the Special Master is Garland’s too, what power does that give Garland in this case?
Zirc
There is nothing cryptic whatsoever. Garland walked himself and DOJ straight into this brick wall. And continues to keep banging his head on it.
Serious question: had you been Garland, what would you have done differently in Cannon’s court?
I would have never been in her court.
What would you have done to avoid it?
The DOJ could not prevent Trump from submitting the 8/22 complaint, and it was assigned to Cannon. Is there a motion that the DOJ should have submitted to move it to Reinhart’s court or DC?
I would have gone to the DC court where the subpoena originated, and filed to have the documents placed in the custody of the Grand Jury that had issued the original subpoena that lead to the search warrant.
I certainly don’t understand the rights of various players here, but is there a reason each of the affected agencies can’t immediately file in DC court to shield their original documents from these rulings and keep them out of Cannon’s overriding control? Or effectively buried in the Archives’ procedures? Or would that by itself reveal too much highly confidential info?
Could you explain to a layman the process they would have taken to move to another court? Thank you
That’s what I’m trying to understand-how on earth is this even happening where she has so much corrupt power?
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Mara-lago is in Palm Beach, Florida where the search and seizure of documents occured. Judge Cannon is the federal judge for the Southern District of Florida, which covers Palm Beach, Florida.
Hence, Trump petitioned the district court covering where the government’s activity occurred.
As Wheeler has pointed out already, the law says this case was supposed to be heard in the Washington DC Federal Court. DOJ has already pointed out that Cannon does not have jurisdiction and Cannon has ignored that fact. The reason DOJ didn’t immediately appeal is that by grabbing the case in Florida, appeals get heard in the heavily Trump-judge-packed 11th Circuit which at best is likely to move as slowly as they can.
IANAL, but if “the law” you’re referring to is the PRA, what it says is “The United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist violates the former President’s rights or privileges.” I don’t see where in Trump’s complaint he has challenged a decision by the Archivist. What am I missing?
Lol, where did you come from? You are lecturing me on the fact that my own blog partner agrees with what I have been saying from the start? Lol again.
Read up some more before saying stupid stuff again.
I’m not the only one here wondering why this remains in SDFL with Cannon (who herself admitted lack of jurisdiction) instead of DC circuit where grand jury issued subpoena. It is curiouser and curiouser with each at-best-idiosyncratic Cannon order why Beryl Howell isn’t hearing the case.
Note that the SW was issued by Reinhart in SDFL, not in DC. The underlying investigation is in DC though.
Can the DC court step in or has the time passed for that? If the case doesn’t belong in this court and the judge’s decisions have contradicted federal laws, how can the findings stand? Please don’t attack: I’m an Ivy-league educated tenured professor who is not a lawyer who has been reading this blog and comments for a few months and find the contents extremely complicated and often hard to follow.
I’m not a lawyer either. Perhaps if a criminal indictment is handed down, it will be through the court in DC and finally out of Cannon’s FL (civil) court.
In the meantime, the DoJ filed an appeal in FL Friday night, 8/16/22.
See Marcy’s latest post today. She also includes a link to the DoJ’s motion for a stay of Judge Cannon’s order prohibting DoJ’s full use of the retrieved MAL documents with classification marks.
https://www.emptywheel.net/2022/09/17/in-motion-for-a-stay-doj-raises-prospect-that-trump-leaked-classified-documents/
Of course. Have been saying this from the start. Instead, DOJ has been acting about as stupidly as humanly imaginable since executing the search warrant.
Minor typo: a paragraph about halfway through begins with “Cannon, on her own gave, Dearie authority to make Rule 41(g) determinations”. The second comma wants to move one word to the left.
TY
Is there no recourse for the DOJ? Can’t they appeal? Override? ANYTHING?
Yes, they can appeal — and they will.
appeal to the 11th circuit with thomas as the SC rep and a majority of trump appointed judges. they will go with cannon. period.
At the risk of ridicule, does anything Cannon has written here provide a basis for indicting her for obstruction of justice? I have seen the various comments explaining that impeachment is not an option. That is because impeachment is ultimately political. Do her orders not demonstrate a willful attempt to prevent the investigation and prosecution of federal crimes? Even if she were acquitted, she would be out of this case.
Never mind. I should have read all the comments before writing. Thanks earlofhuntington and bmaz for the education.
Leaving aside the whole discussion of who owns the items seized from Mar-A-Lago, Cannon seems to have forgotten that the whole point of a search warrant is that the DOJ went to a judge with probable cause that multiple crimes have been committed, and evidence of these crimes is likely to be found at a particular place. The whole point of a search warrant is to seize evidence, so that the evidence may be followed and (if warranted) indictments developed.
Perhaps ironically, one of the largest areas of DoJ prosecutions is associated to the prosecutions under Law Enforcement Misconduct statute.
Police, including federal police, quite frequently mess up on those “probable cause” and “search/seizure” parts of criminal investigations.
Cannon hasn’t missed or forgotten a thing. She is also inventive, turning criminal procedure on its head, in essence, by claiming that the federal government’s criminal investigation of Donald Trump is itself an inherent harm to him and the public weal, for which she will invent an unprecedented remedy.
Cannon’s view of herself, wherever she gets it from, seems to be an analog to the absurdist independent state legislature doctrine. She alone decides, based on law and process she invents, what is required to ensure the safety, well-being, and liability-free security of her Master. She calls that his reputational interest.
If she weren’t wreaking havoc on an industrial scale, I would put it down to cult behavior. But this is something more dangerous. Its consequences would spread well beyond the interests or lifetime of Donald Trump.
What if DOJ indicted Judge Cannon for obstruction of a criminal investigation?
Does that sideline Cannon?
If it is possible to indict her, is there any downside to DOJ to doing so?
Please stop. The DoJ does not and should not indict judges for bad lawyering or for decisions it does not like.
If there were irrefutable proof of her conspiring to obstruct justice, for example, that would be different. But it would need to be something other than her pronouncements from the bench. And there would be hell to pay to obtain approval from Main Justice to investigate a sitting federal judge in whose court you are arguing an active case. That’s the sort of thing Bill Barr would do, next time he’s US AG.
The DoJ’s recourse is impeachment, which is also off the table, which leaves the normal appeals process. As bmaz says, a big chunk of this arises out of DoJ’s own past decisions regarding her jurisdiction.
“The DoJ does not and should not indict judges for bad lawyering or for decisions it does not like.”
This isn’t “bad lawyering” or “decisions it does not like”. This is corrupt malpractice. It looks like a conspiracy to abet criminal behavior.
I know nothing about how corrupt judges are prosecuted, other than to know via the occasional Scott Turow thriller that such a process does exist. Would it take overt bribery to make an actionable case?
Seems to me that Judge Cannon’s behavior goes far beyond “bad lawyering” to the point of complicity.
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What in the world do you think Cannon should, or could, be indicted for? And do not give me some half assed Scott Turow nonsense. This outright insanity, far past borderline.
This is a difficult one. On one hand, I agree with you about both the legal and philosophical issues. On the other hand, her ruling simply can’t be allowed to stand, and it must be made clear that helping Trump play Calvinball is not acceptable behavior for a federal judge.
Since Congress isn’t going to make a statement about Calvinball via the impeachment process, which is certainly the best thing anyone could do about the problem, I’d like to see her arrested for obstruction and thrown in jail. Would it be appropriate? No. Would it be fair? No. But if the alternative is allowing a federal judge to get away with Calvinball, then arrest her.*
Leaving aside the issue of Trump, I abhor Cannon (and loathe our non-impeaching Congress) for putting me in such a position that wishing a federal judge would be arrested for her rulings seems like the best and most logical position possible. This is a horrible place for our country to be.
Scott Turow writes fiction. He’s not bound by precedent or the rules of criminal procedure.
You’re right, Rick D, about how much you know about prosecuting a federal judge.
You also took my comment out of context. If you had strong evidence – beyond what a judge says from the bench – that she has committed a federal crime, the DoJ might investigate it.
But it would be hard for any DoJ to justify investigating and prosecuting a judge before which it has an active case, where the judge is consistently ruling against it.
The standard route is to appeal appealable decisions. The appeals courts get first dibs in disciplining errant lower courts.
Thanks. Judges, including Cannon, should be allowed to drop the presumption of regularity wrt to the executive branch when needed; however, her lack of deference in this case is certainly suspect. Will quietly await the appeals process.
Was not aware (IANAL) that the DOJ had a say in whether they would allow Cannon jurisdiction in this civil case. Can the DOJ, unlike a civilian defendant, say “no” to a court case and not be at risk of losing the case?
This is a collateral attack on a federal search warrant, properly issued by a federal magistrate. The search appears to have been properly conducted, and it found exactly the documents it had identified in the warrant as being evidence of the specific crimes it referred to in the warrant.
A defendant that wants to challenge a search cannot do so by filing a separate civil action. It normally has to go to the issuing magistrate, who would examine the complaint against the face of the warrant and its supporting materials, criminal law and rules, and precedent.
As Marcy has pointed out at length, Cannon has gone out of her way to acknowledge any of the crimes that form the basis for the warrant and search. Trump is fighting like hell to avoid the same thing.
It’s not second guessing to argue that the DoJ should have raised these jurisdictional issues earlier, as part of a strategy to get this matter out of the hands of a judge who was likely to be and has proven herself to be demonstrably in league with Trump.
I am not a lawyer.
I do not understand with whom DoJ was supposed to raise these jurisdictional issues. Wouldn’t it just go up to the 11th Circuit like it is now?
As in life, timing is everything.
“As Marcy has pointed out at length, Cannon has gone out of her way to acknowledge any of the crimes that form the basis for the warrant and search. Trump is fighting like hell to avoid the same thing.”
EOH: I think you dropped the word “not” from this post.
“Cannon has gone out of her way to NOT acknowledge any of the crimes that form the basis for the warrant and search.”
If you didn’t, then I’m thoroughly confused!
It’s been mentioned at DailyKos that Judge Cannon is acting like TRUMP IS STILL PRESIDENT. I wonder if she’s one of those Q-nuts who thinks Trump is still the President of the United States and Joe Biden is just a puppet? It would also explain why she simply ignores both Biden’s waiving of exective privilege and the entire Executive here…
A great deal of this process (from the Trump and Cannon camp) from the date of the search makes a lot of sense if you look through the lens that the Big Lie isn’t a lie.
I think there’s a fundamental question of whether the classified materials are even subject to adjudication. If Trump had taken a government-owned top secret weapon in development, carved his name in the stock, would we even be having any question about a special master looking at the gun? Would we give Trump’s claim of “mine, mine, mine” any time whatsoever? Would the current executive have to bother at all with the court to return this theoretical weapon to its original disposition?
None of 18 USC 1519, 1924, or 2071 discuss final disposition of classified materials, only the unauthorized actions affecting government materials. I just re-read 32 CFR Part 2001 Subpart E — Safeguarding; the word “shall” is used 19 times, “may” appears 5 times. But the most important part is:
There’s no wiggle room.
These are classified documents!!! They don’t belong to any court. Frankly, for our national security the court must be ignored. This sets up a constitutional crisis. No way should any stupid judge nor lawyer (sorry bmaz) have jurisdiction over national security decisions made by professionals in another field.
I’m really pissed off. I’m a physicist, so some stupid judge or lawyer is going to tell me that the speed of light is no longer constant? They don’t know shit about physics (for example) so stay the fuck out of someone else’s wheelhouse.
In this universe the laws of physics wins over any laws of men!
So you ARE a lawyer?
There are dozens of us! DOZENS!!
No but there are at least 3 :).
re: Speed of light’s constancy; “Your case will be heard in a court at the center of the densest galactic cluster near the edge of the observable universe, best of luck” – Cannon fodder
The issue here isn’t that a Federal judge is involved in making decisions about these sorts of things…which Federal courts from time to time actually do; messing with classified documents isn’t a new thing, A-C privilege isn’t a new thing. The problem with Cannon is she is not following the normal way of handling a civil suit in a criminal case, nor is she making rulings based on evidence and statements directly put into the record by plaintiff. Instead, she’s openly “guessing” what the plaintiff wants to do without requiring the plaintiff to actually put that into the court record…and then is ruling based on her own guesses while ignoring the defendants statements and other information >entered into the court record for the case before herher< criminal case. She is directly interfering in grand jury and criminal matters in a way that I don't think many of us ever imagined a Federal court civil case judge would do.
In this, I would hope that she is subject to sanctions, up to criminal indictment for what she is doing. She is undermining the rule of law in this country IMO. She is making up rights and privileges for Twitler that never existed in US law up until now. What she is doing is not within the bounds of traditional jurisprudence whatsoever. She is ignoring precedent, jurisdictional doctrine and law, and, effectively, ignoring the way the Constitution were generally understood to work up until her taking on this civil suit. And in order not to too much embarrass an ex-President who got her appointed to the bench after that ex-President had started working to foment an insurrection against the US Congress?
None of this looks good, let alone passes a smell test. It stinks? No, actually, it wreaks (sic).
who is “we”? (seriously)
AFAIC Canon has already shattered those boundaries. In your scenario, she would invent some other fallacy. For this process, “we” is Canon along with however many others, pulling levers of power in the shadows, are participating in this “process”.
When Marcy pointed out last week the MAL file cache had nothing after November, it dawned on me how many people would have to be involved beyond Trump. I presume everything going on in and through the Willard Hotel has been wiped.
This, after seeing (at least so far) little come of SS wiping all their phones from Jan. 5 forward. Again, It occurs to me there are a lot of people who participated in this. They stay out of spotlight (cowards), seem to believe Jesus is their real leader.
This episode has strong parallels to Lula’s conviction and imprisonment by Bolsonaro, same with Bolivia’s Morales.
At some point in my view this is not about the law anymore. It is something much more sinister. I’ve never been a black helicopter guy, But something really dangerous is going on driven by people most folks know little about.
At the very least, Canon has brilliantly implemented a tried and true GOP Run Out The Cclock strategy, gaming the legal system rather than operating in it.
Why not, it worked GREAT in 2k election!!!
There are two n’s in Cannon, and we are us Kemosabe.
Actually 3 “n”s. Wouldn’t mention it except you play the prick role here.
If that is all you got, you have nothing. Thanks for playing. And I am a prick because of things like this from you. You have no idea how tiring this cheap garbage is getting.
You want to ruin this website, and have the ability for commenters like you to contribute, keep pulling this instead of substantive contribution. We will see how that works out.
But thanks for all ten of your comments over history.
I am very sorry, you have avoided our filters and have a grand total of 31 comments over history. Going back a long time. Don’t think we do not know.
“who is “we”? (seriously)”
We the people through our government. Classified materials belong to the government and specifically the executive branch. Seriously.
Just as top secret weapons in development belong to us, the people, through our government and again specifically the executive branch.
I’m a little surprised at your shock about the conspiracy(ies) to subvert U.S. democracy as Trump had been seated with support from a hostile nation, had help from people who have both connections to unfriendly nations and experience in undermining other democratic governments as well as intelligence background, and the support of white nationalist organizations with a bent toward domestic terror. The pieces were all there by Charlottesville’s ‘Unite the Right’ rally in August 2018 — if you think about it, Charlottesville was Trump’s greenlight to the white nationalists to proceed with their efforts.
I think you misunderstand me… completely.
I ceased being shocked by anything Trump, a long time ago. These days, often remind myself that anything wrong/bad/evil is possible from these people. If anything, (if I am not misunderstanding your take on me) I am on the opposite extreme you suggest. I’m well aware of the events/timeline you describe, I have been paying attention. For a long time now, and have put a lot of skin into the game.
From everything else I’ve seen even in just the last 6 months, the causes/corruption/secret agendas are much deeper and wider then Cannon. Cannon is no dummy, her experience certainly precludes any suggestion this episode is just a mind fart. This is deliberate.
I can’t imagine her doing this without allies.
Marcy said she thinks (maybe?) what the Judge is really up to is taking those documents from DOJ and preventing them from seeing said docs again. Marcy may be right. But… when real agendas are as hidden as Cannon’s any of assertion about her goal is speculative. Just another big cost of dishonesty on massive scale.
I do not see much (if any) evidence of the “we” you describe interceding in this one so far (not being snark: its just not there).
Personally, given already shaky collective health of the US is on shaky ground I just don’t think the country can afford to let Trump get away with this (or Jan. 6 etc. etc.) because if he gets back in WH I can see US turning into a much, much darker place.
We can’t afford to lose this one.
The Brasilian comparison is without merit.
A federal district court does not have the authority to “shatter boundaries.” It has authority to apply settled law in its district, circuit, and nationally. If the appeals process works, she should be quickly overruled.
Also the “brilliant” is a stretch there too, right? This isn’t about being brilliant as it is about being brazen.
Agreed.
In her view, NARA is the Karen who calls the police on some guy just moving file boxes between offices.
You’re right. She will walk the raid back; the point is to put some 10,900 documents back to Trump’s possession, maybe 11,000ish.
When do the various agencies that these documents ultimately belong to, other than NARA, start getting involved?
Their involvement was to occur January 20, 2017 through January 20, 2021. They have no further involvement beyond that at this point; their records should have all _already_ been retained in accordance with their own agency’s record retention requirements under the guidance of their own agency’s NARA liaison/ombudsman. For several years now, each agency’s OIG has been required to audit their agency’s classification procedures and in coordination with NARA promulgate appropriate recommendations to the agency for the agency’s execution.
A civil suit has put the camel’s nose (Cannon) into the tent – a criminal search initiated thru a grand jury and approved by a court. She is ignoring and overriding the protections provided by this established criminal investigation process and installing herself as judge, jury and national security expert and effectively shutting a criminal investigation and hampering a national security impact assessment. All of this is being done to protect the already tattered reputation of a disgraced president who selected her for this court and case. She is freewheeling and ignoring law and precedent and has shown herself unfit for the office. She is hijacking this case and DOJ must do whatever it takes to see that justice is done in a fair court setting.
Interestingly, are all or most of the Presidential records having to do with Cannon’s appointment to the bench…are they missing from NARA too?
Here’s the docket for the 11th Circuit case: https://www.courtlistener.com/docket/65351635/donald-trump-v-united-states/
Stepping back from nonstop angst, if there’s anything I have learned from this website in particular, it’s that the DOJ under Garland has no doubt gamed everything out and has strategies to deal with any and all of it. They are there first to protect the government, and second, they know that failure is not an option. Since the courts are game boards and judges are pawns on those game boards, I imagine they have some calvinball of their own in mind, and other fields of play. Trump is never getting his documents back, nor under any circumstances will he be given the keys to the white house. emptywheel has convinced me we can trust the DOJ to get it done…somehow. Nothing the TFGists do would ever surprise me (or the DOJ), but I am anticipating some surprises by the good guys; the evident right wing panic suggests they anticipate usurprises too. Sooner or later, Schrödinger’s box will be pried opened and the wavefront will collapse revealing a dead cat. (My 2c, maybe not worth half that.)
Lol, what Garland and DOJ have done since spring the search warrant has been nothing but an unmitigated disaster. It is not meticulously “gamed out” it is a complete clown car.
What would you have done in their place?
Never have agreed to unseal one word of the SW affidavit, never have agreed to one second of jurisdiction for Cannon and made sure any action played out only in DC.
So you would have gotten the search warrant elsewhere?
They did get the search warrant elsewhere – with reinhardt in the Washington DC Court where it belonged. To get an idea how far out this is, Cannon accepted a civil suit relating to an active criminal investigation in another court district and has overridden the criminal court judge managing the case when the law clearly says she has no jurisdiction. All the rules were already specified, following normal search warrant procedure and Cannon claims she gets to decide.
Reinhardt is a magistrate judge in Florida, not D.C.
Um, no, Reinhart is a magistrate judge in SDFL, not DC. Please don’t misinform people here.
And never have agreed to accept the authority of a federal judge – acting in a civil matter and based on plaintiff’s wholly inadequate complaint -to interfere in a criminal investigation that properly obtained and executed a search warrant, in connection with the seizure of classified government documents, possession of which allegedly violated three federal criminal statutes.
Responding to both earlofhuntington and bmaz: I’m not a lawyer, but I think I’ve got to call bullshit on this position, mainly because it requires the DOJ to predict the future.
First, they’d have to know, before filing with the magistrate judge, that Cannon would be able to seize control of the case. Second, they’d have to predict that Trump would take this exact path in self-defense – how likely, when you’re applying for a warrant, is “defendent will go judge-shopping in a civil suit, to the wrong court, making outrageous claims and the super-scummy judge will not only agree to hear the case, despite all the technical problems with the filing which should have prevented it, then also rule in such a fashion that every imaginable constitutional and national security nightmare comes true simultaneously?”
Hindsight is 20/20 vision, but before filing the search warrant, how high would that reasonably be on everyone’s list of worries? Did the DOJ really get this one horribly wrong, or did they simply not notice a highly improbable edge-case? Once again, did the DOJ do anything worse than fail to predict a highly-unlikely future?
Also, once a judge like Cannon has grabbed the case, what can be done about it? Is there something the DOJ should have done after Cannon grabbing the case which they didn’t do? – Other than perhaps make some imperfect move when the other side started playing Calvin-ball?
Enlighten me, please, about anything I’ve gotten wrong here.
yes, I agree, and my bet is the DoJ never gives the classified documents back, never shares them with T’s council and will obviously appeal to the 11th circuit.
If you want to call bullshit, I’m game. it does not require the DoJ to predict the future. The only thing surprising about Cannon are the extremes to which she is willing to go to protect Trump.
It is settled law, for example, that a judge siting in a civil case, has no authority to interfere in a separate criminal investigation. It is established procedure that if you want to challenge the propriety of a search warrant or its execution, you take it to the issuing magistrate. If you want to restrict the government’s use of seized materials, you challenge their admission into evidence at trial.
The DoJ took a softly softly approach for too long and got itself into this mess. It can still get itself out of it, unless the 11th Cir. and S.Ct. are as corrupt as Cannon.
I, a non-lawyer, heartily agree that the softly, softly, approach got the DOJ into this mess. I think that this is partly due to the excess deference given to the DOJ by the federal judiciary in national security cases in the past. The DOJ just couldn’t imagine that a district court judge would stand up to them on the issue of classification. The more they played along, expecting an easy win, the more they got played by Cannon.
The softly softly approach strikes me more as an awkward attempt by DOJ to not appear politicized in its investigations of FPOTUS.
“ The softly softly approach”…didn’t work…now everyone’s got 20/20 hindsight.
What can be done now?
Bullshit. This site has roundly criticized aspects of the DoJ’s handling of this case since day one.
And supposing they are as corrupt, does all this reduce to a new “legal precedent”? Also not a lawyer, but it sounds like settled law as we knew it dies.
Have you ever dealt with USAs and AUSAs? I have. Because this is not how they ever act that I have seen.
You’re saying that accepting the rules as Cannon/Trump have made them is the essence of their error. That the right thing to do would be to send Cannon a polite note saying “You know very well you’re not allowed to touch this case, bugger off!” then take it to another court, or simply refuse to allow Cannon to enforce if she should send her bailiff or some Federal Marshals to demand the documents which Trump illegally retained?
Yes. Pretty much saying exactly that. Garland and DOJ stepped in their own shit, and never had to.
Thanks much. Now I get it. (I just wish you’d made that point clearly a week ago – we’d all have gotten much further in our understanding of what’s going on.)
Such an approach would also have set things up much more intelligently if someone had decided that that judge needed to be arrested for obstruction.
Oh, I did. Repeatedly. And no federal judge is getting arrested for anything because people disagree with them. Nor should they ever be.
Okay then, serious question from a non-lawyer who understands jurisdictions and guardrails but knows nothing of how the court system is structured:
I have gleaned that many here believe that this should not be before Cannon but rather Chief Justice Beryl Howard In the DC District court – If that is a true statement is it possible and and how could can get this put in her jurisdiction?
Apologies up front if this is obtuse. Thanks.
Oh, that is completely true. The easiest path would be to file a criminal charge in DCD. Doesn’t even matter what it is, the indictment could be superseded later. I “think” there is a way to transfer the civil case currently in front of Cannon, but might be messy and take too long. This is why I keep harping that Garland has mucked this up royally ever since serving the SW.
Is it possible that the DOJ is not ready to file the criminal charge just yet? They need some of the info from the SW to make it stick?
Possible? Sure, likely even probable. But are they shooting themselves in the foot, repeatedly, with their current “strategy”? I ask that rhetorically, yes they are.
Was surprised that DOJ pleadings didn’t argue jurisdiction, if only to preserve it for appeal.
There’s something here I’m not understanding: Once Cannon agrees to rule in the case, how can the DOJ stay out of her courtroom? Ideally, what do they do once Cannon says, “I’m accepting the case” that they didn’t do?
Just a point of clarification, I believe the DoJ did say that Cannon had no jurisdiction in one of their initial filings. I presume so they could use that in appeal.
As I understand the system, Trump filed in her court (either assuring or lucking out that she received the case). I am not clear how the DoJ could stop her hearing the case, unless she accepts she has no jurisdiction and voluntarily drops the case. Which, I think the DoJ tried and she ignored. So, the next response would be appeal, right? With all it’s attendant delays and dangers.
No, Garland and DOJ did not really try that. Instead, they played right into Cannon and Trump’s posture
I was referring to this:
https://storage.courtlistener.com/recap/gov.uscourts.flsd.618763/gov.uscourts.flsd.618763.48.0.pdf
“Furthermore, this Court lacks jurisdiction to adjudicate Plaintiff’s Fourth
Amendment challenges to the validity of the search warrant and his arguments for returning
or suppressing the materials seized. For those reasons and others, Plaintiff has shown no basis
for the Court to grant injunctive relief.”
Isn’t that a claim against the court taking the case?
That was in a submission to Cannon, who, like her role model, Trump, refused to restrict her own authority.
Bmaz is talking about an appeal to the 11th Cir., or an end around in a competing district, which would actually have authority to decide the criminal issues regarding the issuance and execution of a search warrant in a criminal investigation.
How does civil ever overrule criminal? I thought civil cases were little nothings that Sandy Hook victims could file and be ignored for 5+ years.
This is a serious question. We may end up on the end of a civil suit instructing my wife to not be in a public place at a specific time (part of divorce proceedings, don’t ask). So spend thousands on lawyers or ignore? If a court requests my wife’s presence then obey the court and bring a lawyer, yes?
Perhaps I’m reading too much into the situation, but Judge Cannon seems to be embarking on some weird Cartesian slippery slope in which she entertains the possibility that the exact classification of the stolen documents found at Mar-a-Lago is open to doubt, and thereby seems to invite the public to extrapolate that other measures taken by the federal government in other areas may also be questioned. Judge Cannon’s rulings seem consistent with the whole anti-expert, anti-government propaganda of the extreme right wing.
I can imagine how concerning this must be for the intelligence services of America’s allies and partners around the globe. Is it possible their secrets are going to be shared with Trump’s lawyers?
And the very fact that Trump’s lawyers will have to obtain security clearances and examine the documents in special secure settings should make it clear to Judge Cannon that, yes, these are classified documents! The logic of her position would seem to require her to declare that the need for such security measures for Trump’s lawyers is also a matter for dispute, but once you start down that road where do you stop?
Trumpito ergo sum.
Trumpio ad absurdum … or is it trumpio ad infinitum?
When dealing with Trump, it is always:
Credo quia absurdum est.
She’s insert herself into the criminal side of the case. And blatantly so. What she is doing is not sanctioned by precedent at all. She’s forging ahead with the assumption that the 11th Circuit and the Supreme Court are willing to turn heaven and earth to let Twitler continue his criming.
Perhaps this is facetious, but can the DOJ keep copies of the documents to continue their assessment and provide the originals to the Special Master?
Even if it did, and had access to the information contained in those copies, under the “best evidence” rule, it would need the originals to prosecute Trump.
No, as Marcy says, Aileen Cannon knows exactly what she is doing and how it would torpedo the investigation and prosecution of Trump.
What if they refuse to give them back?
Without the authority of an appeal’s court decision to backup withholding them. she would hold the government in contempt, and potentially find for the plaintiff regarding everything he asks for and everything she can add onto it.
Just keeping them is not an answer; it exacerbates the problems.
They could have the ruling of a competing court in a different jurisdiction. Further, there may be investigations into what happened to things like the Presidential records that were generated after Twitler lost the 2020 election. We just do not know at this point. What it does appear is happening here is that DOJ has not wanted to indict anyone openly here that would move this case back to DC Circuit…at least not for now. Why? That’s a mystery with one or two maybe good answers and a lot of increasingly more probable bad answers.
exactly
It appears we need more originals, then. Didn’t NARA say that they are concerned that there are still classified documents missing? I hope Garland is beating the informant bushes for evidence of documents stashed at Bedminster or Trump Tower. Could he get a new search warrant from judge Reinhardt, swoop in and get the goods, and charge Trump before the Devil (Cannon) even knows he’s dead?
Just as an intellectual exercise, I hafta disagree here. “Best evidence” is what you can get, and if the originals are somehow unavailable (like pursuant to whatever Cannon ends up doing) copies are admissible with foundation of the unavailability of the originals, no?
Just checking online I see that about 500 heads of state and foreign dignitaries will be in London to attend the funeral of Queen Elizabeth II on Monday. That’s a big fat target for terrorist mayhem if ever there was one. I realize Trump didn’t have current classified documents in his possession, but if I were in Judge Cannon’s position I wouldn’t want to be doing ANYTHING to complicate or hinder the DoJ, FBI, and other intelligence services in assessing the damage done by Trump’s thievery and its possible implications for America’s security interests and the security interests of her allies around the world, particularly with an event such as the Queen’s funeral taking place in a few days’ time.
I certainly agree, but at this point I think it’s rather clear that Cannon works for Donald Trump, not the people of the United States.
You have evidence, or naw? Of course you don’t. Like so many new fangled commenters here lately (and a few old ones), you are just blowing shit out of your ass.
LOL evidence of what?
Take a stress pill, big boy.
[Knock it off. Moderators don’t need this kind of behavior. /~Rayne]
I admire and respect this site and Marcy in particular, but don’t understand the bullying behaviour just demonstrated here above. BMAZ tells a commenter they are “blowing shit out of your ass” and Rayne admonishes the commenter to “knock it off” on their comment to “take a chill pill.”
BMAZ, it seems to me SHOULD take a chill pill. Does being a moderator allow one to bully commenters who make a rather inane comment that Cannon is working for Trump instead of the people of the United States? I think that seems to be self evidently true. Cannon DOES appear to be working for Trump. Marcy, I think, would agree Cannon seems to be working for Trump.
Yet the commenter is full of shite and a bad actor, while BMAZ second guesses and name calls and behaves like a bully.
I don’t like it, and yes, I know BMAZ, you don’t really give a shite what I like and I know, I AM full of shite…
Your attacks on Garland remind me of your tasteless comments about Pelosi. And yes, that’s when you and I first interacted, BMAZ. I’m surely not the only follower of this site that thinks BMAZ is a bully. Garland is doing what he thinks is best, and I’ll stick with him.
But Marcy rules!
[If you do not like the way the comments are moderated, find the exit. You are not obligated to participate. /~Rayne]
Hi there. Thank you for your continued support. Also, please learn to spell shit.
I suspect DOJ will be more aggressive in the 11th Circuit. They could certainly do so. Let’s assume that part of the reason they focused on the 100 classified documents is that those are the documents that are essential for the criminal investigation, national security investigation, and any indictment(s). Those documents are almost certainly agency documents. (The clemency document might be an outlier but it may well be a DOJ document.) Pursuant to the definitional section of the PRA, agency documents fall outside the statute. DOJ could file an additional declaration with the court of appeals and a more detailed list (or highly redacted versions of the documents as a sealed exhibit etc.) to show the court that these are agency documents: not Presidential records. That is dispositive of the ownership issue: the President cannot scribble on an agency record and then declare it a personal document. And it takes this set of documents out of the Clinton audio-tape decision – those were documents generated by a President. Nothing in that decision provides a basis for arguing that the President can declare the NSA’s documents his own personal memoirs. That leaves the Executive Privilege argument which should not fly, and certainly not with respect to this set of documents – they are state secrets under the Nixon precedent. And the detailed listing (akin to a Vaughn list) could demonstrate that there are no personal attorneys that had anything to do with these documents. This more robust affirmative showing is then offset by what? Nothing. Nothing but a district court judge apparently bent on thwarting a criminal, security, and counterintelligence investigation.
Redacting hundreds of classified documents is insanity. Even the titles of the documents, when taken in aggregate, could lead to grave national harm.
For example, “one harmless piece of information” combined with “another harmless piece of information” in a single email can be classified. Thus communication from individuals in the agencies we are talking about require a derivative classifier to give her ok.
Disagree. And I’ll get slammed for it here, but I’ll say it anyway as I feel it needs to be.
DOJ are still operating under the assumption that norms and precedent still matter. They also lack the bold mindset needed to counter those who don’t and game the system in their favor.
The 11th and SCOTUS are stacked in trumps favor, so it is best to assume they will do his bidding just as Cannon has done.
The DOJ is up against an adversary that values its goals more than they do optics, polling data, norms, or precedent. I see no signs that they understand this.
Aileen Cannon seems to have adopted the same unassuming persona as Louisiana’s Sen. John Kennedy: an unoriginal caricature of a dull, good ol’ boy from the deep South. Only when you come within striking distance do you hear the rattle from her tail, and see the fangs sharpened by first-class degrees from Duke and Michigan Law
I suspect that she and her patrons, she must have them, are convinced that the Republican Party’s and the neoliberals’ futures rest on what happens to the person and reputation of Donald Trump, even after he has departed to the great McDonald’s in the sky.
If Trump suddenly died, I wonder if they would try to continue the legal battle over these documents, with Jr., Eric, or Ivanka asserting that they inherited everything.
wasn’t the warrant served both on Donald Trump and the Office of Donald Trump?
The thing that worries me the most about this decision is the precedent established in Kennedy v. Bremerton School District. You might be wondering what a “religious liberty” case has to do with Trump purloining government documents.
I’m not talking about the legal precedent set in that case. I’m talking about the “we can lie about the facts to get to our preferred result” precedent. Gorsuch’s opinion in Kennedy starts like this:
All three of those sentences are egregiously false and the justices who joined that opinion knew it. They knew they were lying because they read the record, and Justice Sotomayor pointed out the falsity of the statements.
To take the statements in turn, Kennedy did not “offer a quiet prayer of thanks” after football games (his prayers were loud and demonstrative) and he did not lose his job because he prayed after games.
Kennedy was on duty, representing the school, and responsible for the students under his care when he organized group prayers for those students.
Nor were his students “otherwise occupied”. There was photographic evidence in the record that disproves that bit of nonsense.
I look at the way SCOTUS blatantly lied their way to that decision and I worry that the same thing will happen here.
Yup, this is why I’m with bmaz on this that it was an epic f-up to let this thing get any momentum. I dont buy that hindsight is 2020 view either. At this point, especially given Bremerton, Dobbs, etc…you have to know that the SCOTUS isn’t not going to save you. At best, letting it get there is a horrible delay, and at worst, we are finally confronted with the reality that SCOTUS (as Kagan pointed out the other day) is now a “we’ve got the votes” institution, a political wing, except for now, not subject to any oversight. They simply make perfectly logical arguments based on lies, and when called out on it, double down on the lies.
This is just an extension of the post-truth Trump era, the stain it has left on institutions. Marcy showed just how it was done here with Cannon using a hypothetical to invent evidence. The thing is, you have to at this point think that these people will go right to the grey areas, cheat, steal, lie, do whatever it takes to win, and you have to have a strategy for that type of opponent. Garland and DOJ are far too conventional for this, and you can tell when Marcy based the legal pundits that thought Cannon’s end around was NBD. She’s right to do so, because they are the types that are at DOJ who cant see the reality of how this is played nowadays. They needed to push back fully from the start. But Garland gave them an opening, and they f-ed him with it.
On the plus side, I think after this goes through to SCOTUS and ends badly, we shouldn’t have any people left who haven’t realized that the masks are off, and we can come to an agreement that SCOTUS is utterly broken. What we do at that point, when it is probably too late, is another issue, and obviously depends on the midterms result.
Exactly.
That’s why the Garland pick was, as I said before an error. We needed someone like Bobby Kennedy.
Merrick was a good pick for the wrong season/era
I personally think we are headed for a Civil War
Another unsettling case involves a federal judge in Florida ruling earlier this year that the Navy could not remove a Covid vaccine refuser who tested positive from the guided missile destroyer he commanded. As a result the Navy could not deploy the ship.
As Russia was ramping up its preparations for the Ukraine invasion, a right wing judge decided he could interfere with a major military decision by the US Navy.
Eventually the Navy reassigned him, but only after the Supreme Court ruled that other personnel could be reassigned in a separate case, and the case may get further litigation.
https://news.usni.org/2022/04/19/out-of-commission-destroyer-co-assigned-to-shore-duty-lawyers-in-covid-19-vaccination-suit-say
This was obviously a ridiculous interference with executive branch authority — there is simply no reason a judge should be interfering with deployments this way. I think what we’re seeing is a move by right wing judges to provoke a direct conflict with the executive branch, and Cannon won’t be an end to it, any more than the shredding of Roe v. Wade will be the end of radical judges attacking a wide range of American institutions.
Turns out, it was even worse. The dude never even lost his job:
https://www.seattletimes.com/seattle-news/the-story-of-the-praying-bremerton-coach-keeps-getting-more-surreal/
“I know that you want to make this very complicated.”
But wait, there’s more! From @nycsouthpaw…
“An example of what happens when the Supreme Court bases a decision on a set of deliberately false factual assertions: reality finds ways to intrude and make fools of everyone.” Article linked, no paywall.
https://twitter.com/nycsouthpaw/status/1571350672137666560?cxt=HHwWgICy5YzHx84rAAAA
I don’t get it. Why is the DOJ phucking around with some judge who admitted the case was not in her jurisdiction?
I think Cannon did not address the following “concerns:” (dkt 89) within the DOJ’s concerns in their motion to stay (dkt 69 page 17 footnote 5).
“The government similarly does not understand the Order to restrict senior DOJ and FBI officials, who have supervisory responsibilities regarding the criminal investigation, from reviewing those records in preparation for such a briefing.”
She said her order permitted it.
Am I naive to think that Dearie won’t be reviewing the documents anytime soon, if ever, since DOJ will be appealing to the 11th, and on to SCOTUS? So many are presuming Cannon’s ruling is a done deal…
Am I also naive to think, in the unlikely chance that SCOTUS upholds Cannon’s ruling intact, that DOJ, the IC, and ultimately Biden, will simply refuse to turn over the classified documents, protecting national security using the “you and what army?” strategy?
Yes.
As a former FISC judge, Dearie is likely to move expeditiously. It might take him only days to review the 100 or so documents marked classified that the DoJ wanted to exempt from Cannon’s ruling. He may determine what he thinks should be done with them just as fast.
The problem is that Trump will object to anything but, “The government gives all the originals back to Trump.” And then Cannon reviews it all from scratch, as if Dearie had never done any work.
And, as EW points out, Cannon appears to claim the authority to replace Dearie at any time, for any or no reason. Were she to do that, she is likely to replace him with someone who would make her look judicious.
Note that NYC lawyer friends tell me Dearie is famous for moving very slowly. So, not sure how expeditious he is going to be.
If this is Dearie from 14 years ago :
https://www.washingtonpost.com/national-security/2022/09/16/raymond-dearie-special-master-trump-documents/
…it would be hard to imagine this going quickly.
Would it be that Dearie’s investigation won’t start until Trump’s lawyers receive clearance from the USG? Which, I assume, would be a drawn-out process as well.
Unless so ordered by Cannon, nothing requires Dearie to wait to do his own work, much of which has to be done before Trump’s lawyers get to see any of these documents.
In fact, to meet his current Nov. 30 deadline, he should start immediately. He doesn’t know how big the mountain is he has to climb here.
That is the thing, it is not just 100 documents, it is all of them to do the job right. He has to know the totality of what was there.
Dearie has ordered lawyers for both sides to appear before him at the Brooklyn federal courthouse on Tuesday afternoon.
Again, is there any indication this is not a fairly normal status conference?
But isn’t it all moot when DOJ appeals? I assume the 11th would grant a stay pending appeal, and if they don’t, DOJ simply refuses to turn over the classified docs.
My point is, Dearie won’t likely get to review the docs now because DOJ will get a stay pending appeal.
It’s only moot if the DoJ wins the appeal. Even then, unless the DoJ can get it removed, the case would ordinarily be remanded to Cannon for further proceedings.
It would seem that there is only one option for a possible “you and what army” strategy to work, and that means the 100+ national security docs can never be turned over to Dearie at all. Once he has them, he will likely be replaced by Huck who will see to it that the docs go beck to TFG courtesy of Cannon.
My own question is what is Roberts likely to do if the 11th Court rules for the Gov and TFG appeals to SCOTUS? With his concern for the Court’s vanishing reputation as a fair arbiter of the law would he be inclined to lobby the other justices to let the 11th District’s ruling stand rather than allow TFG to run roughshod over the Gov, national security, and American jurisprudence?
What evidence do you have for this proclamation?
My conjecture about the documents is based on several points Marcy makes in this post, particularly in the first para: “Having considered her order, I’m fairly certain that this is a plan not for a Special Master, but rather a plan to seize back the materials.” Then later in the piece, Marcy notes other suspicious stipulations, i.e., Cannon’s order: “instructs the government to give Dearie the actual documents seized, not copies”; and “she has also reserved for herself the right to replace Dearie for no reason.” Marcy’s vivid phrase “claw back the documents” had an impact on me as well.
The above is alarming, and the final para of the post (“It is really really easy to see how Cannon replaces Dearie with Paul Huck Jr, who is basically a Republican lobbyist, and with him starts to invent more harms she can then adjudicate”) convinces me that Dearie is a decoy (or a sitting duck).
Based on the above, it sure seems that DOJ must not relinquish the documents.
Will this angst ever end?
Ok, this made me laugh:
These are astonishingly obvious facts you have unearthed and paint a picture of what is coming. Every pundit on TV is calling her an idiot, instead of working back from her goal to her actions. The pundits are institutionalists who think everyone goes by their oath. They are completely out gunned when they come up against someone who is focused on her own goals, not legal/justice goals. The pundits do not understand the application of power. Cannon is going to get the goods back to trump and squash this in place, the 11th circuit under thomas will approve her actions. The DOJ is trapped on this one, national security out the window. This is astonishing.
Not necessarily. Imagine how much more power folks like Cannon would be weilding right now had Twitler not been booted out of the White House in 2021? So there is hope that things will correct somewhat.
Agreed tho, the damage by Team Twitler seems to continually grow while the DOJ seems to twiddle its thumbs between bouts of going through the motions.
I do not believe that higher courts will turn a blind eye to all the facts and law Cannon had to ignore to issue her decisions. .
Dobbs. Shelby County. Citizens United.
SCOTUS just ruled against Trump on EP this past January.
They made no such ruling; in fact, they refused to hear the case, allowing the Appeals Ct. decision to stand which held that Trump also in fact had an EP interest and presented weighty issues for consideration but that interest in that particular case was outweighed by Congress’ investigatory interest, and so never made it to need to rule on those weighty issues. There is still a lot of room for EP case law to eventually grow.
Not quite. The S.Ct.’s January 19th decision upheld the appellate court’s ruling that EP did Not prohibit the Archivist from sending to Congress presidential records that Trump had argued were protected by EP from disclosure to a competing branch of government.
Where the S.Ct. disagreed with the appellate court was over its discussion regarding the power of a former president to assert EP over presidential records created during his term.
It kicked the can down the road, holding that that discussion was premature, because the appellate court had found that Trump’s attempted assertion of EP would have failed, even had it been asserted by the sitting president.
For that reason, it held that the appellate court’s analysis regarding whether and how a former president could assert EP – and how any conflict between him and the sitting president on that issue should be resolved – was premature, dicta, and non-binding.
https://www.supremecourt.gov/opinions/21pdf/21a272_9p6b.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/913002F9EFB94590852587A60075CC4F/%24file/21-5254-1926128.pdf
You have to compare apples to apples.
Look to how this Supreme Court has decided in the government’s favor, for example in United States v. Zubaydah and Federal Bureau of Investigation v. Fazaga.
First time post. For all of us who don’t have a subscription to WestLaw, it would be a great benefit to folks like me, if the legal minds here would include at least a one sentence description of the substance/meaning of precedent when citing it.
Thanks for this forum.
You want me to provide you with WestLaw cites? Please evidence a continuing monthly donation to this website of $250.00. That is what it costs.
Welcome to emptywheel. This is not a site which caters to neophytes. Policing how the site operates is general considered a no-no.
You should be smart enough to do your own research without a subscription to Westlaw (which, if you’re smart enough to know what Westlaw is, you should damned well know how to do your own research).
For example, googling “United States v. Zubaydah” produces ample material including this free overview: https://www.oyez.org/cases/2021/20-827
And if you use the search tool on this site, you’ll fine 350 posts mentioning “Abu Zubaydah”: https://www.emptywheel.net/?s=Abu+Zubaydah
Thanks for the welcome. And the admonition is warranted. I was whining, and at the wrong folks.
No excuses. Except that I was very tired and completely exhausted by the “Cannon phenomenon.”
It seems inconceivable, and maddening, that she is able gum up the works so thoroughly.
Next morning I googled “Abu Zubaydah,” got enough – and realized my error.
OK, in addition to a smaller amount, I’ve donated half of a monthly Westlaw subscription,
though it can be used however, and maybe Westlaw is not the best use of funds.
As I said, thanks for this forum — I mean it.
Assuming so, thank you. I was a bit facetious as to the WestLaw thing. But between myself and my firm, the money paid to WestLaw over the years would buy a very nice Ferrari or Porsche. Probably a couple of them. The $250.00 monthly of today is actually reasonable comparably. But it was never just a computer access point, they also control a LOT of the physical books we rely on. And the internet can be edited in a way that books cannot be. The written record still counts.
“The Court of Appeals for the Eleventh Circuit rules, narrowly, that the lower Court’s ruling stands only for former Republican presidents, based on these not at all contrived, pretextual reasons.”
A couple of observations:
1) The choice of Dearie—despite his impeccable CV—strikes me as suspicious. TFG’s lawyers presented the court with a forced choice: (a) a certifiable, conflicted clown and (b) Dearie. Knowing Cannon was in the bag, they knew they would get Dearie. That raises (not begs) the question: do they believe they have some leverage of some kind over him? No idea on my part other than a consistent pattern of similar behavior for years and years on their part (vide, e.g., Pam Bondi, Justice Stevens).
2) I’m baffled at the pre-Order contempt for TFG’s lawyers. Certainly, they put on a Columbo-like disheveled entry into the case. That move (along with all the typos and grammatical errors and misstatements) made it easy to underestimate their true intent. However, they won. That cannot be denied AT THIS STAGE of the proceedings. Now, “sophisticated” lawyers are busy gaming out how to get around her ruling. Again, victory for them. I am nearly convinced that TFG’s recent flight from NY jurisdiction to the friendly confines of SDFL was intentional, premeditated, strategic. As was his tactical appt of Cannon. And, now that they got their initial delay (monkey wrench in the wheels of justice)—which is all they needed from her, TFG will be bringing on serious appellate lawyers for the next stage. It’s fun to make fun of TFG’s lawyers and bemoan Judge Cannon, but right now they’ve gotten all they wanted. The ridicule and tut-tutting gets no one anywhere. This is trench warfare; short-term gains are all that matter. I suspect BMaz above is correct (citing Wheeler) and this thing should have been removed to DC from the jump.
3) I’m shocked (given point 2 above), DOJ didn’t force the issue and make TFG swear under penalty of perjury that he de-classified those documents and show his proof. Even now, since TFG brought this motion, I’m wondering whether there is some procedure for Discovery on the part of DOJ to put the plaintiff to the proof of his lawyer’s assertions.
Jim H.
The problem for DOJ here is that these aren’t claims made by the Plaintiff but implied claims that the judge herself has added to the case. DOJ is out-matched here by the sheer audacity of Cannon acting as criminal defense plaintiff lawyer rather than as Federal judge…in a court case before her in a Federal civil case. If they’re very lucky, they’ll quash her nonsense on appeal.
Frankly, I believe this case is headed to the Supreme Court either way. DOJ should be acting accordingly. They appear to not be so far.
Hmm. Maybe this is going to the Supreme Court quickly after all. If the 11th’s three judge appeals panel doesn’t issue a stay giving the DOJ the ability to continue using the classified documents seized in its investigations then apparently it can appeal directly to the Supreme Court?
What happens if 45 claims he cannot afford the special master fees?
My personal response would be “then you shouldn’t have asked for one.”
His access to funds would be investigated by the court and his claim proven wrong, which would make it a false statement and subject him and his lawyer(s) to potential further liability. But not before Cannon, apparently, who seems to have bowed down before him in prayer.
A meme is going round that rather than fuck up this thing from the beginning, Trump’s lawyers have actually done a stellar job pawning the DoJ. They’re winning!
I disagree. Their lawyering has only been effective because they were able to filter it through a corrupt federal judge, who redid their piss poor work and invented new law and practice – tilted the playing field – to help their client. That arises from Trump’s innate ability to spot corruption among his appointees, and to put it to his own use. Cannon, for example, does not appear to be taking orders so much as making a bid to be a player.
Underestimating Trump’s litigation experience and determination to fight to the last peon is also a problem. It’s an attrition strategy that doesn’t seem rationale, until you factor in that he doesn’t care who falls in its service. It’s like Russia relying on winter rather than its troops to defeat Napoleon.
A media problem is also the punditry that sold the naive claim that regardless of who appointed them, most federal judges rise above politics and at least adhere to basic law and practice. Have none of them looked at the Supreme Court lately. FFS.
The difference being that the Russians didn’t create the winter nor the crisis of the invasion.
For purposes of the analogy, the Russians relied on a known seasonal event rather than staff, prepare, and use their own army. They did the latter, but not sufficiently to defeat the invader.
The cost was the decimation of their land from Moscow through the Pale, a cost only Putin seems willing to repeat. Trump has similar leanings, so long as what’s lost is not his.
No one should ever hire Evan Corcoran to do any legal negotiating for them as part of dispute resolution where there is a dispute between parties.
One would be hard-pressed to find someone who resulted in any worse outcome for their client than Corcoran did to Trump: on a relatively simple transition phase document transfer issue that past administrations have had similar issues on, they got their client’s properties raided by the FBI.
Although it’s no small matter that Trump is not necessarily the most ideal client to have, in any case.
I’ve never been afraid to ask a stupid question. I very much respect the postings on this site.
As a worried citizen of the world can anyone tell me if Trump is going to win yet again through gaming the system, get re-elected, and cause the universe to come crashing down on all our heads? Can the DOJ, or anyone else stop him?
We are not a Magic 8-Ball.
We could be by indicting him this afternoon
I appreciate that Magic isn’t involved. I guess I was hoping that you, the poster who seems to me is one of the most authoritative on things legal here, might be able to reassure me that the legal case against he who shall remain nameless is strong enough that he won’t be able to walk into the oval office again, even though the DOJ has made mistakes. Of course, the White House is not the only place from which he can wreak havoc!
Two points:
1) The question, as stated, is a good one. We face dire political problems. There are a thousand ways our task could go wrong, and only a few ways it could go right. Success is temporary, whereas failure would be very long-lasting.
2) Posting the question in this context suggests there may be some unstated assumptions behind the question, i.e. some unstated wishful thinking.
The fact is, our political problems need to be solved by political means. The criminal justice system cannot solve political problems, and we should not ask it to. This was true during the Mueller investigation and it’s true now.
Criminal justice is necessary but nowhere near sufficient. Please let’s not sit around waiting to see whether this-or-that criminal investigation will solve our problems. It won’t. It can’t.
The investigative process is fascinating to watch, but most of our focus should be elsewhere. For most of us, there’s not much we can do to help the investigation. Meanwhile, there are a thousand other things that we can do and must do. Talk to your peers about the issues. Volunteer to help a local political candidate. Sign up to be a poll worker on election day. Et cetera………..
You are correct that there is wishful thinking involved. My wish would be for a cathartic moment when the ex-president would be clearly exposed as a con man, a liar, and a cheat, especially to his followers, but then I think I’ve seen plenty of those moments already come and go and, still, there he is.
While I agree that political problems need to be solved by political means I’m not so sure the solution, which in my opinion would be new, young, and inspiring candidate that can pull a big majority of voters to an overwhelming electoral win is even feasible anymore. I actually thought America got there with President Obama… more fool me.
But my question was actually about the nuts and bolts of criminal or other liability. A lot of talking heads and op-eds infer that it’s a certainty that laws have been broken and, under the law, he will have to face consequences at some point. Is it just talk or is there any way to understand the likelihoods?
A lot of these replies assume that Dearie will perform the review, but if you read the order, the “workflow” is actually allowing Trump’s lawyers to perform the review and then having the special master perform a quality control check on their review before ultimate determination is made by Judge Cannon.
This really isn’t even a “special master” or forensic neutral ruling. It’s essentially a discovery request demanding that the government produce docs to Trump and requiring Trump to make a privilege log.
I am far more familiar with civil procedure regarding discovery than criminal procedure but this seems to completely invert the process by allowing the defendant to direct an investigation.
But even more fundamentally – this doesn’t solve any problem. The entire order seems designed to guarantee that each document is treated as either personal or privileged and returned to Trump. If that’s the intended result — why not just order that directly?
[Welcome to emptywheel. Please use a more differentiated username when you comment next. A single letter or initial is insufficient for this purpose. Thanks. /~Rayne]
To answer your last question, one reason is that there’s no legal basis to do that, and it would be immediately appealable on an emergency basis.
There’s no legal basis for other things Cannon has just done, but they aren’t yet as egregious as just ordering the return to Trump, without review, of documents that aren’t his and which it would be illegal for him to possess, read, or use.
Is anyone out there on the rooftops shouting Marcy’s clear points about Cannon’s fodder (antics) to the people in DoJ who could turn things around and rein in this Trumpy judge’s devious and false proceedings? Does anyone in DoJ realize what’s going on and what a Trumpy hold Cannon’s got going on this? I’d just hate to think the good observations that get clarified here by our worthy emptywheel contributors only stay within the confines of EW. Who else reads these posts other than EW post-ers? Will Garland & co. ever realize the extent to which Cannon has twisted things around to go her Trumpy way? How can we avoid being dragged down Cannon’s rabbit hole? I sure hope the eventual DoJ appeal will hold water, even though having matters get to SCOTUS just sounds like more of a mucky Trump-infected quagmire to me that will never allow for the proper resolution we should have.
Hi. You do realize saying that here is merely a shout into an echo chamber, yes?
General question; how much of the criminal case is Cannon privy to at this point? Is she working from the unredacted search warrant and other documetation from the criminal case, or just what team DT presented and DOJ’s redacted material?
EDIT: that is… “…and DOJ submittals specific to this civil case?” The edit function didn’t work for me this time.
IANAL.
In my opinion, she’s avoiding until as late as possible reading herself into as much of the criminal side of this as possible. She may or may not have access to fully unredacted documents having to do with the warrant and seizure materials issued by the Federal court, etc. She has been trying to avoid looking at any of the specific classified documents seized in August by DOJ, the disposition such which she is making rulings. Actually reading and seeing these document herself would mean that she is now on the hook for interferring in a criminal national security investigation should her previous suppositions and pronouncements in the civil trial now glaringly appear to be what they are on their face—obstruction of access to US classified materials stolen from the government.
At some point, if her charade continues, she will have to look at some of those documents. Once she does look at some of these USG classified documents, she can no longer act as if she doesn’t understand what issues are implicated by withholding these documents from the government in its counter-intelligence investigations and other criminal proceedings within the DC Circuit (and possibly other jurisdictions?).
That’s the reason for my question in fact – how long can she play dumb. IF the documentation she’c currently entitled to is limited by the nature of DTs civil complaint she can play dumb. But if she’s been compelled to be read in on the criminal case to any degree (my question) how long can she keep it up? It seems like things could easily spiral out of control for Cannon, as the the civil case is mooted by the the primary criminal one. But IANAL either and don’t know butkiss about how the civil and criminal cases formally relate.
What criminal case?
DOJ’s DC based warrant was a for criminal case no? But I get the point. One judge can throw everything into a muddle
The warrant was issued in SDFL. Not DC.
Reinhart, a federal magistrate judge in SDFL, issued a search warrant in connection with a criminal investigation. That precedes an indictment and prosecution. As of yet, the DoJ has not obtained or started either, so there’s no “case.”
Thanks both.
Dearie gets to do his work as SM in Brooklyn? Twelve hundred miles away from Cannon’s court? I hope the USG gets to bill Trump for all the staff time, secure handling and transport.
https://twitter.com/emptywheel/status/1570883304894730240
Yes, but the actual documents are a lot closer than 1,200 miles. And, by all appearances, this is basically a status conference, so it is fine.
Presumably, you mean the docs are in Metro DC. Gosh, what if the DoJ could move all these matters there, eh?
I think yes. But could not prove that. And, yes, seems like a nice central location going forward!
Naive question from a non lawyer. If the fix so to speak is in, why not just indict Trump with what they have? Seems better than watching these people play games.
Evidence per the DOJ standards?
Again, not a lawyer. For stealing the classified material. Skip the BS, just arrest him. If the other side can prove it was okay for him to have stuff, good for them
First they came for Trump….
Then they came for Carl W.
Your proposition seems pretty much like Screw ‘Em All and Let God Sort Them Out. That way lies madness.
Question: if doj walks in Monday morning and inductance trump for illegally having these documents, is Canon more or less important? What is the connection between the two?
My (not a lawyer) understanding is that the documents the FBI retrieved from Mar-a-Lago on 8/8/22 would be the best of the 3 tranches of documents to indict Trump on, as the search of MAL occurred AFTER Trump and/or Trump’s people declared in June 2022 that there were no more NDI documents left on the premises.
Of those 8/8/22-retrieved documents, the DoJ would need to find for court purposes a “Goldilocks” document that reveals just enough NDI information to prove their point that the law was violated by Trump, but the document would have to be one that is not so sensitive that it cannot be revealed to a jury.
However, FL District Court Judge Cannon has currently stymied the DoJ’s full use of those documents retrieved from MAL in August 2022, pending special master review.
Trump had previously returned to NARA (in Jan 2022 and June 2022) other PRA and NDI documents he had been keeping at MAL. The DoJ might have a harder time in court using those documents to prove Trump was obstructing justice, because the docs were returned afterall. (But maybe there are Goldilocks documents among those earlier files that the DoJ could use to prove Trump kept the documents past his lawful access and then stored them not in a manner that respected laws about how to protect classified documents/NDI information?)
My in-the-future concern, assuming Trump runs for President despite being indicted, is that I don’t think the U.S.Constitution bars an indicted person or prisoner for that matter from running for President.
Optimistically, I am hoping the U.S. electorate would not elect an indicted person or prisoner President.
Tremendous explanation. Thank you very much.
It seems to me that it doesn’t serve justice if Trump did he is accused but was lucky enough to not leave a Goldilocks document behind. But, again, I understand what is going on much better now. I am happy they appealed, and think that either Cannon gets what she deserves or they should go ahead and indict him and go with what they have.
That’s why the charge against Trump we really want to see is the sedition charge – if I recall correctly, once convicted he can’t hold office again.
Tremendous explanation. Thank you very much.
It seems to me that it doesn’t serve justice if Trump did he is accused but was lucky enough to not leave a Goldilocks document behind. But, again, I understand what is going on much better now. I am happy they appealed, and think that either Cannon gets what she deserves or they should go ahead and indict him and go with what they have.
Question: if doj walks in Monday morning and indicts trump for illegally having these documents, is Canon more or less important? What is the connection between the two?
[This is a duplicate of a reply to community member earlofhuntingdon at 9:59 pm. Did you intend this comment or the reply to earl? One of them needs to go. /~Rayne]