Opinion: Judge’s ruling for Trump is astonishing

Cannon had previewed this result — both with her questions and statements at Thursday’s hearing — as well as in her initial scheduling order before the Justice Department even had an opportunity to be heard. But when it arrived, the judge’s written order struck many legal experts, including me, as being extremely weak in its legal analysis. Here’s why.
To exercise jurisdiction, Cannon had to find “exceptional circumstances,” which in turn refers to a set of criteria for the judge to consider. A similarly high burden applied to the judge’s decision whether to appoint a special master and whether to enjoin the Justice Department from possessing the seized materials — notably, only one of these things, the special master, was requested by Trump’s team; Cannon helpfully volunteered the other. Each of these requests also had their own legal requirements, with the burden again on Trump to show he was entitled to the relief sought.

On all these legal questions, Cannon’s consideration of these issues was superficial and conclusory. For example, she determined that Trump would be irreparably injured in part because he has a need for the documents seized, in part because information about these items may be leaked to the press and harm him and in part because these documents may subject him to criminal prosecution.

But the judge neither cited nor sought any information about what documents Trump alleges he may need. (Anyone subject to a search arguably has a similar need without justifying special master review.)

On the second issue, she concluded that leaks may harm Trump without mentioning or having in the record any facts from which one could find that any leaks to date could be attributed to the government as opposed to Trump. (He has been significantly more vocal about the search than the government has.)

Finally, the notion that irreparable harm as a legal matter can be demonstrated by the execution of a legitimate, judicially authorized search warrant is unprecedented. Again, every person subjected to such a search could claim harm, rendering the argument ineffective as to Trump.

To issue an injunction against the Justice Department, Cannon also had to find that Trump had carried his burden of proof by showing he had a likelihood of success on the merits of each of his claims, including executive privilege, for which she ordered a special master review.

The judge provided no support at all that Trump will ultimately succeed in this legal argument. Indeed, there are multiple legal reasons that Trump’s executive privilege argument is almost certain to fail.
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Cannon was correct that the Supreme Court hasn’t spoken definitively on the exact point of whether a former President can ever assert such a privilege over the sitting President’s contrary determination, but there is a big difference between saying something is not 100% off the table and saying that the argument has a likelihood of prevailing.

And one final questionable part of the court’s order: It’s not entirely clear on what jurisdictional basis Cannon ordered the Justice Department to refrain not just from reviewing but also from “using” the seized documents in any way, and how far that goes.

Does that mean that if one of the investigating agents saw a name on a document, he could not now approach that person for an interview? What if the interview is scheduled; may it proceed? If the team had decided on another round of subpoenas based on what it’s learned, must it hold off?

Under what authority does a judge order not only that the Justice Department and FBI put questioned documents aside but also orders them to forget all about investigative steps they’ve taken in the two weeks before Trump’s attorneys got their act together to file a motion?

All of this means that the order is extremely vulnerable to being overturned on appeal, assuming the 11th US Circuit Court of Appeals panel hearing it consists of at least two unbiased judges inclined to follow the law.

So the million-dollar question for the Justice Department is: Should it appeal? In making its decision, the department will likely consider two things: How harmful could Cannon’s opinion be as precedent moving forward as to others subject to search warrants who may seek a similar special master review? How much will the injunction harm the Trump investigation, and is it therefore worth trying to get it lifted?

Cannon’s opinion is unlikely to be helpful to other defendants. She leans heavily on the “exceptional” nature of searching a former President’s home when considering jurisdictional questions as well as whether a special master should be appointed. She also emphasizes multiple times the need for ensuring the appearance of fairness and integrity that presumably would not apply to a search of a more typical subject.

And because Cannon fails to engage legally at all on the executive privilege question, it’s not as if her opinion leaves a bad precedent there.

Consideration of the second question may push the Justice Department toward appealing, however.

An appeal would cause a delay but likely not as much as the process for finding and gaining security clearance for a special master, coupled with the time it would take the master to conduct a review and return the documents.

There is also the uncertainty over what Cannon has enjoined the Justice Department from doing (and whether it’s legal). So far, the department has litigated aggressively with respect to this search warrant. We should know soon whether that practice will continue with an appeal of the judge’s order.

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