After 37 Days, Raymond Dearie Ends the Harm Judge Aileen Cannon Deliberately Inflicted on Donald Trump
As I have written, by her own standards, Aileen Cannon deliberately inflicted harm on Donald Trump in order to justify her intervention in the Trump warrant. On September 5, she ruled that being deprived of his own documents would inflict harm.
being deprived of potentially significant personal documents [] creates a real harm
But on September 1, she refused the request by DOJ’s filter attorneys to return the Category B documents identified in the filter team status update, all the most obviously personal documents seized.
Cannon then pointed to those personal documents in the language justifying her intervention.
The second factor—whether the movant has an individual interest in and need for the seized property—weighs in favor of entertaining Plaintiff’s requests. According to the Privilege Review Team’s Report, the seized materials include medical documents, correspondence related to taxes, and accounting information [ECF No. 40-2; see also ECF No. 48 p. 18 (conceding that Plaintiff “may have a property interest in his personal effects”)].
All of those personal documents were Category B documents.
Cause the harm, then intervene to fix it.
Raymond Dearie has finally ameliorated the harm Judge Cannon was personally responsible for sustaining against Trump since September 1.
Since both sides agreed that DOJ can give back those Category B documents, he ordered DOJ to give back those originals.
The parties also agree that the original Filter B Materials should be returned to Plaintiff. Id. Accordingly, the Court directs the Privilege Review Team to release the original Filter B Materials to Plaintiff by October 10, 2022.
So by October 10, DOJ will finally be able to end the harm that Judge Cannon was sustaining. Altogether, Cannon will have been responsible for at least 37 out of 60 days harm done so far, and possibly as many as 40 days out of 63 days of harm total that she says was done to Donald Trump.
And that reduces the fictional 200 000 pages by what amount?
BTW I am switching to EwanWoodsEnd
[Thanks for updating your username to meet the 8 letter minimum. I’m changing your username on this comment from “Ewan” and will watch for the new name here forward. /~Rayne]
The government having the few documents now to be returned were the supposed harm that Cannon used to justify her intervention in a proceeding that properly belonged before Judge Reinhart. They represent the fulcrum, not the lever.
But if the “harm” ends on Oct. 10th, doesn’t it take with it any further figleaf claim for her to exercise jurisdiction AT ALL?
Don’t expect logic in Cannon’s positions. After all, she refuses to take the word of classification authorities that classified documents are classified.
Was there much logic in 1857?
Pervert law and logic to maintain power..
Taney 101?
What rule of law in 1857?
Slaveowners did the same thing.
Restrict liberty and moderate speech as we do all the time here?
To much on point for the on
pointers.
Great job as usual EW.
Chuck full of Nutz and always full for being empty?
Not only did Cannon create that specific potential harm to Trump, but Trump allowed her to do it, i.e., Trump didn’t tell the judge, in so many words; “They’re willing to give these documents back right now. I must have them back right now. Not having them is harming me. Why won’t your Honor let me have these documents back right now?”
Imagine how Trump would be talking about Cannon if he really wanted those documents back when the government first offered to return them, but Cannon refused.
Because Cannon’s unjustifiable charade fit Trump’s purposes, Trump went along with the charade.
Trump’s thinking in this is along the lines of: “Cannon is right that the radical left wing FBI and DOJ are causing me harm, but I’m not going to demand the harm be remedied right now, even though the government is offering to remedy it right now, because I don’t care that I look like a blustering hypocrite, I’m only a former president, for what reason would I create an appearance of integrity, given that my friend the wonderful and genius level Honorable Judge Cannon doesn’t give a flying F at the moon about appearances of integrity?”
Individual-1 is apparently back to beating the ‘Feds planted these docs’ drum, so would we expect Cannon to issue a ruling demanding that the feebs show the provenance of the classified documents? It would seem a logical conclusion for a judge so willing to accept TFG’s claims at face value and would delay things even more. Bonus delay points with the USG access restricted, as IIRC the currently active order already does.
As a small aside, I am not sure what could possibly have caused Trump real harm in those documents listed. Is Trump in some danger of losing an office football pool over not having the email from the Head Coach in hand? Is that his Fantasy Football league draft list or something? Cannon speaks of potential harm; we now have a list and what is/was the ACTUAL harm?
Trump is claiming “privilege” over two folders that are marked as containing correspondence between Trump and the Archivist. Nothing about the date of that correspondence. Typically, Trump doesn’t identify which privilege, A/C or EP.
For starters, there would be no A/C privilege on correspondence he sent to a third party, such as the Archivist. And the Archives would have its copy, to which the DoJ would have access. If the correspondence dates from after Trump was president, he has no EP to assert. If before, privilege might attach, but under current law, it would be Biden’s to assert.
It’s possible there is A/C privileged material filed along with non-A/C privilege. It seems more likely that Trump made personal notes, etc., on that correspondence. That might incriminate Trump or be embarrassing to him, but it’s highly unlikely to be either EP or A/C privilege material. Moreover, any A/C privilege might be subject to the crime fraud exception.
https://www.theguardian.com/us-news/2022/oct/07/trump-exclude-documents-inquiry-mar-a-lago-fbi-special-master
This review was just A-C or work product. Now it gets shared with the case team who fights about EP.
Thanks.
Earlofhuntingdon, I’m slightly confused about one point you make. Isn’t it still very unlikely that any president could assert EP between agencies of the executive branch? And then add on to that a former president asserting that the current president can’t see something that belongs to the executive branch?
I don’t know how to make the nice indented quotes that sometimes appear in comments, but I’m referring to your phrase “If before, privilege might attach, but under current law, it would be Biden’s to assert.”
I know there’s a whole question of whether President N-1 can assert EP over the wishes of President N, but I understood a really nutty part of this whole thing being the idea that EP shields parts of the Executive Branch from other parts of the same branch. So, if NARA is part of the Executive Branch, how could any of that internal communication ever be subject to any privilege? Is this where we should expect Cannon to overrule Dearie?
Update: I see Dr Wheeler’s reply while I was typing up my question, but I think my question is still (at least in my mind) valid: if the fight over EP is between Trump and the Case Team, isn’t it still everything I was asking above?
Yes, it’s improbable that Trump could assert any EP. Under existing law, it’s the current president’s to assert. And currently, EP exists to shield executive branch deliberations from other branches of government. There’s nothing to support asserting it against the executive branch itself. Moreover, current practice allows for exceptions to EP, which include criminal investigations.
Those are reasons Dearie would have required Trump to identify his claims of EP: on the one hand, to avoid disclosures to other branches of government, and on the other, within the executive branch itself. Cannon nixed that requirement, allowing Trump to avoid having to assert a specific privilege and what rationale he relies on to do it.
One little quibble.
I think it is extremely likely, if not an absolute certainty, that Trump will assert EP. I also think it is improbable that any court would sustain that assertion.
But make no mistake: Trump will assert it.
I agree. The challenge will be to find lawyers willing to make his increasingly outlandish arguments. Finding and paying for them will be harder still if the DoJ ever indicts him – or finds troves of more stolen documents in Manhattan or Bedminster.
So much coherent logic here on this site. In particular I have always liked yours.
Up against a post-factual, post-logic generally truth-indifferent tribalism. Which, of course, requires enablers in positions of power to continue to prevail.
“Moreover, current practice allows for exceptions to EP, which include criminal investigations.”
Why would an exception be necessary, as the investigating body is a part of the executive branch?
[Welcome back to emptywheel. I assume you really meant to comment as “Parker Dooley” and not “p,” yes? If your comment doesn’t publish right away, check for typos in the username+email address fields. Thanks. /~Rayne]
It’s an alternative argument, meant to show there are several reasons Trump’s arguments should fail.
JonathanW wrote,
To indent a quote, simply begin text with the HTML element “blockquote” enclosed within a code tag, two uppercase keys left of the question mark. To mark the end of the quote, repeat the code with the addition of a forward slash, /, at the beginning of the code “blockquote” (absent quotation marks).
JonathanW, here a handy guide to embedding URLs in text.
For indented quotations, just type [blockquote] at the beginning and [/blockquote] at the end of the passage to be quoted, but replace the square bracket thingies with the “less than” and “greater than” symbols.
There may be more efficient ways to do this, I defer to the experts. This exhausts the extent of my knowledge on this topic.
You must be exhausted!
Thanks! I went googling for more; found this WordPress guide.
I appreciate the info on using italics, etc., but I don’t think I’ll bother with trying to make hyperlinks; too many opportunities for me to make a mistake. I’m a tad dyslexic.
I’m a bit confused about B-076. The plaintiff is not claiming privilege but the defendant is? That’s not correct though since both parties agree there is no privilege.
re B-076:
Seems like a claim of privilege was mentioned by plaintiff at some point but then when Dearie asked specifically what it was they basically didn’t send him anything…so he ruled it ain’t and sent it back to them anyways? Not sure if that’s what happened but that’s a reasonable assumption based on today’s order. I note he also directed DOJ to maintain a copy of all B-docs returned to plaintiff so the DOJ can revisit those documents if/when further determinations on privilege are argued/settled, etc.
That seems plausible regarding B-076. However, there was another number mentioned in the unsealed notice by the privilege review team officer (ECF 40 of August 10, unsealed by ECF 130 on October 3), page 9, footnote 11: B-351. What happened to that one? Or has there been a new bates numbering since?
[Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; you’ve commented previously as “Konny.” “Constance” meets our new 8 letter limit but we have another community member with the same name. Please differentiate your username with your next comment. Thanks. /~Rayne]
In DE 40, on p.9, prior to the parenthetical marked by n.11:
In DE 138, on p.2, under the heading, “II. Filter B Materials”:
And further in DE 138, on p.3:
Thus, it looks to me like — regardless of potential privilege — both parties agree that the Filter B Materials get returned to Trump, and Judge Dearie so directs.
I think that’s end-of-story on B-351. It gets returned to Trump. Who really cares about actual status — when there’s no argument over the disposition of the document. The court is deciding what to do.
Wanna make sumpin’ of it?
We all agree.
This is a circle jerk
So for fucks sake — we are dealing with a nut factory
Send in Sam and Dave and arrest Trump
I’m confused: did Dearie actually affirmatively “do something” here, or did Cannon just fold on the harm thing?
Dearie poked a finger in Cannon’s eye and said “You don’t like it? Take me off the case and take the lumps yourself.”
gotcha, thanks
I think Dearie is doing a great job here. He wants to deal first with the only documents that could be subject to claims of AC privilege.
The appointment of a Special Master was never necessary, as the DOJ would have, and did try, to resolve the privilege issue proactively within normal procedure.
Once this issue is disposed, the rest of the Special Master process is going to expose the ridiculously fraudulent claims being made by Trump. His lawyers will not make ANY claim of ANY kind of privilege over the thousands of presidential records because they CAN’T, unless they want to incriminate Trump.
It is illegal for Trump to have any of these records.
If his lawyers make a privilege claim about them, then they are admitting that he had them, that he stole them, that he concealed them and that he obstructed an investigation to recover them.
They will make NO CLAIMS about those records. They may try to delay the process by making some ridiculous complaint about the process in order to delay the process, but they will claim NOTHING about them.
What’s more, once Trump does not get a Supreme Court hearing, he must speed the review process up, or risk having the process ended by the Eleventh Circuit before Cannon can make any rulings that could help wreck the prosecution of the case.
This episode of criminal obstruction of an investigation aided and abetted by a crony judge will have delayed Trump’s indictment by three months, but it will have gained him nothing when he is indicted, and it doesn’t help him avoid conviction, either.
Even more interesting will be how Trump decides to procede with this circus after the Republicans lose the election and there is no hope of Trump becoming Speaker of the House and creating a constitutional crisis in order to upend the investigation.
This delusional hope is the reason for this delay in the first place. I fully expect Trump to be inciting terrorist attacks and armed revolt when the Republicans lose.
I fully expect any hair brained attempt by rightwing crackpots to fulfill his murderous demands to be summarily CRUSHED.
The defeat of the Republicans is going to be decisive. There will be few close calls, and the ones that we have, will not determine control of Congress or about ten state legislatures where the Republicans will be kicked out of power.
There will be lots of protests by a few thousand people in a handful of states.
There might be some armed attacks, but they will be so swiftly and overwhelmingly quelled that we will suddenly see all the loudmouths finally shut their mouths.
And then you will see a terrified Trump, demanding that Dearie hurry up and finish the review, while he faces indictments in Florida, New York, DC and Georgia.
And then the Eleventh Circuit will close the door, and Judge Cannon will join the idiots who are suddenly very quiet, and shut her mouth. Sorry Trump.
And then begins the several months in 2023 when Trump is traveling between one jail and the next jail, to appear in one court after another court, and one grand jury after another continues to indict him.
Tax fraud. Election Fraud, Seditious Conspiracy. More Tax Fraud. Bank fraud. Espionage. Money laundering. Wire fraud. Bribery. Blackmail. Extortion. Rape. More Money laundering.
More crimes. More investigations. More lawsuits.
Violating the Klan Act.
Hundreds of Republicans will be arrested. Hundreds more insurrectionists will be hunted down. Republicans will continue to lose elections, get fired from positions of authority, and be sued.
Donald Trump has destroyed the Republican Party.
Seems a tad optimistic.
I too am doubting Thomas.
(sorry for name typo, especially on a throwaway comment)
[Edited, thanks for head’s up. /~Rayne]
Tom Marney, I don’t know you, but I LOVE your prognosis. If only.
But quite bracing. I like it!
Quite an imaginative and fruitful list of crimes you put together here. I would love to see that. Many years ago Wife was a city editor for a small town daily paper, and we were at a Saturday night day off pizza party, when the hourly news update on the radio spoke of the “Saturday Night Massacre” ongoing in DC as Nixon went after his special counsel prosecutor by firing the AG, Deputy AG, until Robert Bork agreed to fire the special prosecutor.
We went to the newspaper office wire room, and had access to the AP, UPI, NYT, WaPo newswires, which were running continuing updates on Nixon’s Meltdown that night in DC. We watched stories update as 5 Bells rang out over and over. [ Bells ringing to notify wire editors that breaking news was happening, the more bells, the more important. 5 Bells was Kennedy Assassination, Bay of Pigs, Twin Towers level news! ] We worked nights, and so stayed to watch that story unfold until 2 or 3 am.
Your list of crimes would create that level of news worthiness. We can only hope!
I remember that night too. There was no 24/7 TV news back then, so I had to wait for the next issue of TIME to arrive to get a better idea of what happened. I think it was TIME that went over the top a little and referred to it as “the Bloody Saturday Night Massacre”.
5 bells +
Yes!!! All this. Plus the Cardinals win the National League pennant, the World Series is a home run contest between Pujols and Judge, and on Christmas morning, a beautiful gray pony!!!
A person can dream!
“This delusional hope is the reason for this delay in the first place. I fully expect Trump to be inciting terrorist attacks and armed revolt when the Republicans lose.”
Been reading some of the scholars who study these things and the consensus seems to be an authoritarian political party is most dangerous when it realizes it can’t take power through the electoral process. Since such authoritarians believe they are the only legitimate people to wield power, they tend to violent overthrow of government.
May you be correct it’s only a few thousands of crazies here and there instead of an organized attack on democracy when the Republicanists go down in flames on Election Day.
I don’t know about your conclusion that Judge Dearie has solved/ended this. I have complete confidence in Loose Cannon’s willingness to ignore what the parties and Judge Dearie agreed to and to just impose her own version of what is “Just and best and most transparent.”
Ding! Ding! Ding! We have a winner!
Judge Cannon has adopted Trump’s motto: “I alone can fix it!”
Whenever Donald Trump appears in public, there should be a brass band standing by ready to play “Hail to the Thief”.
I like “Jail for the Thief” myself. It’s got a good beat and you can dance to it.
Oh, she may well. But she’ll do it before the time DOJ files its opening brief on the appeal.
I’ll do a follow-up but Dearie is trying to put himself out of a job.
A job he probably never sought …
Well, we’ve certainly seen Cannon perform a series of stupid human tricks already. But if she acts as fast as you’re predicting (I.e., in the next seven days) she is going to have to say, in effect, “I haven’t seen the great bulk of the documents yet, and neither has Judge Dearie or the Trump team—as the scanning is just underway—but I just know in my heart of hearts that all these documents are protected by executive privilege and cannot be used by the government in a prosecution.” In other words, under the schedule she set (precluding rolling production and designations) she can’t say something as idiotic as the above until mid November. If she short-circuits her own wretched invention, even the Federalist society would have to hide from her. The case at the 11th Cir. will be briefed, though probably not argued, by the time she launches a Gōtterdämmerung.
I’m sure Cannon will continue to interfere in creative ways, but if she wants to stop the return of personal documents to Trump she has to act before October 10 and I haven’t seen anyone predict that will happen.
Yeah.
We all expected the demon to disappear if we just waited long enough. Instead the bull shit has grown even stronger
MSNBC just characterized the DOJ and Garland’s approach to this theft as “cowardly”
Not sure I would use that word but
we need to rev up the engines.
Keep in mind that if the Dems don’t retain the House, all hell breaks loose. Jordan starts investigating Pelosi and Hunter and Joe Biden and the January 6 committee is shut down. If Musk then controls twitter, Trump will reemerge with his taunts and lies. Should Trump be somehow indicted, if he or DeSantis get elected in 2024, the pardons will spew from the White House. Not a pretty picture.
It’s obviously best if the Dems win the midterms. Failing that, it seems like it’s best if Trump is indicted before the midterms.
Hollywood,
Your summary is a pick-me-uper to the perils for our democracy.
Consider how many “bombshells” reports that Trump has side stepped.
Once I was an idealist – not any more.
Remember it’s been 640 days since the attack on the Capitol.
I hear the lyrics from the Beatle’s “Yesterday” ….
Now it looks as though they’re here to stay?
What are “C Materials”?
The Special Master Order” (DE 138) issued yesterday (Oct 7) by Judge Dearie, on p.2-3, under the heading marked “I. Filter A and C Materials”, apparently refers to two sets of potentially-privileged, seized materials. Specifically, on p.3:
“Filter A and C” is ambiguously parsable. It could read “Filter A” and “C”, or it could read “Filter A” and “Filter C”. Doubtfully, it could perhaps be “A and C” — one set, after all.
In any case, these two apparent sets, “A” and “C”, are distinct from the “Filter B” materials which are discussed on pp.3-4.
Reviewing the previous docket entries: DE 130 (at p.1) refers only to “Exhibits A and B [ECF Nos. 40-1, 40-2]”. Similarly, DE 71 p.4, n.6 mentions only “Exhibit A or B” with reference to DE 40. And DE 40 itself, throughout, refers only to “Exhibits A and B”.
Presumably “Filter A” corresponds to “Exhibit A”. Again, presumably, “Filter B” corresponds to “Exhibit B”.
What are “C Materials”? “Filter C Materials”?
Firmer than presumably. The privilege status report (DE 40) in several places relates Bates-number “FILTER-A-???” to “Exhibit A” and Bates-number “FILTER-B-???” to “Exhibit B”, e.g. p.5, n.6.
Going back to DE 138 — damn, I just noticed that in my comment above, there’s an error. I inadvertently wrote pp.2-3, when I should have specified pp.1-2 there. And I inadvertently wrote pp.3-4, when I should have specified pp.2-3 there. Sorry.
Going back to DE 138, on p.1 it’s seen that Bates-numbers “FILTER-A-001 through A-005”, for example show up under the heading “I. Filter A and C Materials”.
The question still is, what are “C Materials”? “Filter C Materials”?
Republicans support Herschel Walker, despite his apparent severe dementia, his alleged domestic violence, his gross hypocrisy about his sexual life and abortion, and that he lies about as many large and small things as Donald Trump.
They aren’t just being hypocritical or engaging in realpolitik. The theatrically outlandish support, despite the glaring hypocrisy required to give it, is a model for how hesitant Republican voters could vote for Walker, anyway, despite their own misgivings. Because Democrats.
Apropos timing of tRump indictment — I have consulted with leading experts (my two cats) and we collectively agree that the optimum time for the DOJ, or anyone else, to announce an indictment would be one minute after the last polls close on 11/8 (excluding Hawaii because they are just too late to make nationwide news and they don’t count anyhow).
That gives us one month to stock up on popcorn and one month for medical professionals to brush up on how to treat exploding heads, although from my perspective, any exploding heads belonging to republicans or credulous/both siderist media should just be left to explode and then left for the rodents and the insects. But that is just me and people may disagree — they would be wrong, but I respect their right to be wrong, at least on this issue. Besides, that would make the lines at Costco shorter and make it easier to find parking spots, so win-win.
You will have to forgive me — UCLA is winning at halftime so I am in a good mood.
Go Bruins!