A federal judge on Thursday appointed a particular master to examine documents seized from former President Donald Trump’s Mar-a-Lago estate, citing alleged “media leaks” and rejecting the Justice Department’s argument that Trump does not have any “possessory interest” over documents which are property of the federal government.
Trump-appointed Judge Aileen Cannon of the U.S. District Court for the Southern District of Florida appointed U.S. District Judge Raymond Dearie to examine a lot more than 11,000 documents seized by the FBI last month. Cannon wrote that she cannot accept the DOJ’s argument that Trump shouldn’t have possessed classified documents until Dearie completes his review.
“The Court will not think it is appropriate to simply accept the Government’s conclusions on these important and disputed issues without further review by way of a neutral alternative party within an expedited and orderly fashion,” Cannon wrote.
Cannon gave Dearie, who was simply appointed by Ronald Reagan, until November 30 to perform the review. Cannon wrote that she will not believe the federal government would “suffer an irreparable injury” to its investigation due to the delay but cited the risk of “leaks to the media” without offering types of any leaks.
Cannon also rejected the DOJ’s request to resume its criminal investigation in to the documents but allowed the federal government to examine documents “for purposes of intelligence classification and national security assessments.”
The DOJ argued that both reviews can’t be separated and plans to appeal the ruling.
The only real matter which Cannon sided with the DOJ was over who pay the expense of the special master review, ordering Trump to cover the price instead of split it 50-50 with taxpayers, as Trump’s lawyers proposed.
The DOJ in a filing the other day warned that the delay might lead to “irreparable harm” to national security.
“To be able to measure the full scope of potential harms to national security caused by the improper retention of the classified records, the federal government must measure the likelihood that improperly stored classified information might have been accessed by others and compromised,” the DOJ warned in the document.
The DOJ in a subsequent filing argued that Trump had no to possess classified government documents and that Trump’s attorneys had never claimed to the court he declassified certain documents despite the fact that he’s got repeatedly pushed the dubious claim publicly.
“Even though Plaintiff had declassified these records, and also if he somehow had categorized them as his ‘personal’ records for purposes of the [Presidential Records Act]neither which has been shownnothing in the PRA or any way to obtain law establishes a plausible claim of privilege or any justification for an injunction restricting the government’s review and usage of records at the biggest market of a continuing criminal and national security investigation,” the DOJ said.
Cannon in her order cited “ongoing factual and legal disputes” on the documents as grounds to order a third-party review, drawing pushback from legal experts.
Want an everyday wrap-up of all news and commentary Salon provides? Sign up to our morning newsletter, Crash Course.
“Judge Cannon’s denial is based on this untruth: ‘ongoing factual and legal disputes,'” wrote Ryan Goodman, a law professor at NYU School of Law. “What factual dispute? Trump never asserted he declassified the docs. Trump never asserted he made records personal. What legal dispute? Trump conceded the executive privilege argument.”
Former federal prosecutor Andrew Weissmann called Cannon a “partisan hack” and described the ruling as a “profoundly partisan good article.”
“She says it really is ‘disputed’ that the documents are classified, but Trump never said in court he declassified them and submitted NO evidence, therefore the only evidence before her is they are and so are so marked. She is really totally in the tank here,” Weissmann tweeted.
Harvard Law professor Laurence Tribe called out some of Cannon’s ruling where she cites the “position formerly held by the plaintiff” as one factor in her decision.
“Cannon is openly trashing the principle that are equal prior to the law. Not in her court, they’re not!” he wrote on Twitter.
“This is simply not just disagreeing with Cannon on a law point; it is a fundamental violation of her oath of office and distortion of the rule of law,” Weissmann agreed.
Former Solicitor General Neal Katyal called Cannon’s intervention a “terrible, terrible abuse of our legal system.”
“It had been also entirely unnecessary,” he told MSNBC. “The Justice Department gave this judge a chance to walk back her nutso earlier opinion and instead she thought we would dig her heels in.”
Conservative attorney George Conway, a prominent Trump critic, told CNN that the ruling is “absolutely a disgrace.”
“I don’t believe it does take quite definitely to overturn it,” he said. “Bill Barr the other day told the brand new York Times that the initial motion by Donald Trump’s lawyers was a ‘crock of shit.’ This opinion is worse than that.”