Give Judge Cannon credit for boldness in so transparently lending Trump, bestower of her sinecure, a hand with his most recent legal troubles related to pilfering government documents. Of course, that credit may be undue, a mistaken assumption of cleverness that doesn’t really exist. The casual observer faces the usual struggle: is he witness to the pursuit of an ethically bankrupt, but at least intentional, agenda, or to the product of insufficient wattage? In the end, does it matter?
To little surprise, Cannon granted Trump’s request for a special master to review the materials the FBI recovered from his Florida home. Audible in her ruling are the grinding gears, the process by which a certain type of brain struggles to reconcile duty (application of the law) with long-term aspirations, the obvious and witless pursuit of political and very much personal goals. What does the proper administration of the law have to do with it? Not much.
Straightforward application of law to facts was clearly not her aim. Instead, pace Chief Justice Roberts, a grateful Cannon set out to bank street cred with Trump and her Federalist Society mentors. After all, why pass up a future chance at the 11th Circuit or even the Supremes by a modest show now of loyalty that will, for a while, delay a federal investigation. To get Trumpers to see her as one of them was a way of affirming, to them and herself, the legitimacy of her appointment.
The concept of special masters isn’t complicated. If there’s a risk that prosecutors will get hold of (and use) information they shouldn’t because it might benefit from a legal privilege, a neutral third party looks at the materials to segregate the privileged from the non-privileged materials. That the facts in Trump’s case don’t warrant one forced Cannon to labor hard for a justification. Alas an incoherent and disingenuous mess was the best she could do.
For starters, the issue of special masters — which courts have the “equitable” power to resolve — is reserved for “exceptional” circumstances. But even as she acknowledged that such power “must be ‘exercised with caution and restraint,’” she soared on an unrestrained flight of fancy, in the course of which she omitted, misled, and distorted facts and law, while telling us that she’s “[m]indful of [her] limited powers in this domain”. Corrupt or deluded; you decide.
She took a case she shouldn’t have. (Legitimate judges don’t care for forum shoppers.) She never questioned entertaining Trump’s request, even though the FBI’s removal of materials from Trump’s home was the subject of existing proceedings before Judge Reinhart. Aside from the mystery of how the case got magically assigned to her, she very much wanted it once it was. How many other chances would she have to get this much public exposure, or to express gratitude to the guys who got her her job?
How, then, did she qualify the circumstances as “exceptional” as required for the appointment of a special master? Easy; she simply said so. She “[took] into account the undeniably unprecedented nature of the search of a former President’s residence”. That the search was unprecedented is true, of course, insofar as it these circumstances hadn’t occurred before. But the execution of search warrants is routine FBI work. Unprecedented was a former president’s making off with stuff that didn’t belong to him.
Cannon cited no law for the proposition that courts must adjudicate matters involving a criminal suspect who happens to have been president in the past differently from matters related to any other suspect. Or that a suspect’s identity by itself makes the circumstances legally “exceptional” so as to warrant the appointment of a special master. Even Bill Barr, no novice in the perversion of justice, rightly called the the argument for a special master idea a crock of shit.
Cannon correctly noted that, for Trump to succeed under Rule 41(g), he had to “have an individual interest in and need for the seized property”. When he failed to specify what that interest was — it seems he remains clueless as to what he had and what portion of that was his — and having already decided to help him, she concluded, on zero facts, that some of what the FBI took belonged to Trump. She conjured the interest for him, and demanded that all 11,000 documents be examined by a special master to protect it.
To prop up her argument, she rejected DOJ’s commonplace offer to provide Trump, the suspect, the materials that the FBI filter team believed might be privileged. After Trump’s review, the parties could agree on what was and wasn’t privileged. They’d submit for Cannon’s adjudication whatever remained in dispute. But she wanted to “consider it holistically,” probably because it was the only way a ruling from her could have the broader political impact that she wanted.
Cannon went on to mischaracterize what the US Government said. According to her, the Government “acknowledged that it seized some of Trump’s personal effects without evidentiary value”. In fact, the Government said no more than, “Personal effects without evidentiary value will be returned.” The reason for her dishonesty is obvious, namely, the need to grasp at something, anything, that would justify her balancing the equities in Trump’s favor on the issue of a special master.
One other factor the law required Cannon to consider was whether Trump would be “irreparably injured” if he didn’t get his stuff back. She decided that “being deprived of potentially significant personal documents [medical, tax, and accounting info] … alone creates a real harm”. Her solution? To require separate review of some 11,000 documents (versus a disputed sub-set thereof) that the FBI took. That’ll derail things for a while, she must have convinced herself; and she’s right.
She also said Trump “faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public”. Pure invention. There is no evidence from which Cannon could conclude that there has been a leak. Instead, she took DOJ’s recognition, offered purely as a general proposition, that, leaks do occur, to hint that there have been leaks by DOJ in this case, even though none have occurred. From the absence of a government guarantee about what others might do, she infers harm to Trump.
Telling is Cannon’s omission of the fact that, since the warrant’s execution, it’s been Trump who has pressed the DOJ to disclose publicly what it had preferred to keep under wraps as part of their investigation. Clearly, rather than being harmed, Trump believes he benefits from public disclosure. We can guess why, on this record, Cannon inferred harm. It was the only way her ruling would make even the slightest sense. No harm, no equity in Trump’s favor, no special master.
Cannon gave credence to Trump’s claim of “injury from the threat of future prosecution and the serious, often indelible stigma associated therewith” by citing a wrongful indictment case. “[T]he public remembers the accusation, and still suspects guilt, even after an acquittal.” True enough, but Cannon proposes that, because of Trump’s “former position as President of the United States,” the stigma associated with the subject seizure is in a league of its own”. She leaves us guessing why this is so.
Cannon also said that a “future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.” Assuming that harm to Trump’s reputation is really a thing, Cannon knows that the likelihood of an indictment based on property that is personal to Trump and unrelated to an investigation of his criminal activity, is nil. She needed this straw-man to justify a special master and, worse, a delay in DOJ’s investigation, solely to protect Trump.
How long this protection remains useful is questionable. DOJ will press its case. It may even appeal Cannon’s ruling, though she is unlikely to care in the sense that she won’t be adjudicating a future Trump-related criminal matter. Her job is done. She succeeded in sending the unmistakable signal of political loyalty to Trumpers and to Republicans generally. They can count on her. That her work product is abominable may be true, but it’s also irrelevant at a time when only outcomes matter.
