He disagreed, however, with Trump’s arguments that there had been a “stupid disregard” for his constitutional rights in the search.
An important victory for Trump
The main takeaway is simple: The decision is a major legal victory for Trump.
Cannon took issue with the doubts Trump’s lawyers have raised about the unprecedented search of the Florida hotel, questioning whether investigators can be trusted to properly sift through the thousands of documents that were seized. The judge rejected the Justice Department’s assurances that its internal filtering team had already sorted material that might be subject to attorney-client privilege.
Finally, the special appointment of the master may only delay the federal investigation into the documents sent to Mar-a-Lago, but now it introduces a new layer of uncertainty and unpredictability in the investigation.
The former president didn’t get everything he asked for — the judge didn’t order that any materials taken from his home be returned to him, for example.
The following quick steps are based on rules for a specific master
Cannon left undecided many important questions about how the special master would work. He made a plan for how things would move forward for at least a week and focused on solving those logistical issues.
He ordered Trump’s lawyers and prosecutors to “release” a lot of big-ticket items: Who are the proposed candidates to serve as special master? What will their specific “responsibilities and limitations” be? What should be their schedule and speed? And how much will they be paid for their work?
Both sides were told to submit a “joint filing” by Friday, detailing their responses to these questions. Based on how the case has progressed so far, it seems unlikely that the two sides will agree on much. Both will be able to write their thoughts on how they want this to go forward.
Cannon said he would “immediately” issue a court order detailing “the full details and mechanics of this (special) review process” after the joint filing.
He noted the need to resolve disputes between the parties regarding “whether certain seized documents constitute personal or presidential records” and “whether certain seized personal effects have evidentiary value.”
Programs to review “executive preferences”
Trump had said that the master’s special review needed to go beyond documents covered by attorney-client privilege, and that material covered by executive privilege should be filtered out as well.
Executive privilege refers to private communications of presidents and their advisers and other types of internal communications within the executive branch that are restricted from being released to the public. While disputes over the privilege have arisen in congressional investigations, the reach of the executive privilege — particularly when a former president argues it should be used when a current president refuses to assert it — is an unsettled area of the law.
Cannon’s order requires a special master to examine documents based on “executive privilege” issues, making the task more extensive than the attorney-client privilege review that occurs when a special master is appointed. (Documents subject to attorney-client privilege will be part of this master’s special review as well, according to Cannon’s order.)
He did not elaborate on the criteria that a special master should consider.
In his ruling, Cannon said that the Supreme Court did not eliminate “the possibility of a former President overruling a sitting President on executive rights issues.” He quoted from a 1977 Supreme Court case regarding documents from President Richard Nixon’s White House, as well as from a Supreme Court order earlier this year that allowed the release of Trump White House documents to House investigators on January 6.
Cannon quoted the Supreme Court as saying in a recent case that the questions are “unprecedented and cause great concern” when it comes to situations where a former president claims to claim executive privilege over equipment that has been waived by the incumbent. .
Cannon acknowledged that, when all is said and done, Trump’s claim of executive privilege may fail, but said that he “doesn’t challenge the former President’s ability to raise that privilege as a matter of precedent.”
The intelligence review will continue
The judge does not prevent the US intelligence community from continuing to examine the documents as part of its assessment of the potential threat to national security.
Director of National Intelligence Avril Haines told Congress last month that the intelligence community would be assessing “the potential threat to national security that would result from the disclosure of the documents.” The intelligence community has also been working with the FBI since mid-May to investigate some of the documents seized from Mar-a-Lago, CNN previously reported.
Although the FBI investigation is related to at least three possible offenses — violation of the Espionage Act, obstruction of justice and criminal handling of government records — the intelligence review is primarily concerned with determining whether the disclosure of material that was placed on Trump. resorts and residences can put sensitive intelligence sources at risk.
Trump received special attention as a former president
The judge repeatedly referred to the “extraordinary circumstances” present in that particular dispute, given that it involved an “unprecedented” search of the former president’s home. He also said there was a risk of “stigma” that would come with charges that were brought wrongly and said the threat was even greater in this case because Trump is a former president.
“As a function of Plaintiff’s former position as President of the United States, the stigma associated with subject shock is in a league of its own,” he wrote. “Future lawsuits, depending on any level of property that should be recovered, would cause damage to the reputation of a different order of magnitude.”
There were other precedents in Cannon’s arrangement to place Trump, as a former president, in a special class of defendants. He said that Trump’s reliance on “collaboration between the former and current administrations on” the sharing of documents also limited his chance to intervene. (The Department of Justice has pointed to several examples in the case of the Trump team moving slowly in the negotiations).
In a footnote challenging the DOJ’s arguments that special masters are typically appointed to review searches of attorneys’ offices, Cannon wrote that he “didn’t see why this concern wouldn’t apply, at least to a large extent, to the office and home of the attorney general to form the president.”
What can the Justice Department do now?
The decision does not close the Justice Department’s criminal investigation. Trump is still in legal jeopardy. But the decision will limit what investigators can do, and may slow things down a bit, as special reviews continue.
A Justice Department spokeswoman said Monday that officials are “investigating the comments” and considering “next steps.” The one-sentence statement did not explicitly refer to an appeal, although that is the obvious option for prosecutors.
If prosecutors appeal, the cases will be heard by the 11th U.S. Circuit Court of Appeals, which is in Atlanta. The court has four permanent judges appointed by Democratic presidents, and seven by Republican presidents, including six by Trump.
A panel of three judges will be randomly selected to hear the appeal. Whichever side loses in that round will have the opportunity to ask the entire 11-member court to rehear the appeal “en banc.” The losing side can also appeal to the Supreme Court, which has a conservative majority.
DOJ officials may choose to appeal only part of Cannon’s multifaceted decision.
Judge Cannon is a Trump appointee — does that matter?
Federal judges frequently handle cases involving the president who placed them on the bench. The fact that Cannon was appointed by Trump, and that Trump filed this case, are not grounds for Cannon to withdraw from the case, although he could if he thought it created a perception of injustice.
For his part, Trump has a history of bringing the judicial branch into politics, by attacking “Obama judges” and saying openly that he expects those appointed to do his legal bidding. But this skewed attitude toward judicial credibility appears to be one-sided, with Trump hoping for political credibility while most judges try to ignore his out-of-court rhetoric and focus on the truth.
How does the DOJ’s so-called “60-day rule” for investigations apply?
A lingering question about this and other investigations involving the former president is how the Justice Department will view the so-called “60-day rule” as it applies to investigations related to Trump.
The “rule” is an internal DOJ policy that discourages public investigative measures that could affect an election 60 days before Election Day. Trump allies have claimed the investigation of Trump administration documents goes against this rule, even though Trump himself is not a candidate.
It is unclear whether the DOJ was revising its approach to investigating documents in light of the law, and whether prosecutors are doing so, nor is it clear whether the appointment of a special master affects those plans.
The investigation appears to be in the very early stages. Prosecutors have explained that in public court cases. And the kinds of lawyers who have been publicly involved in the investigation — mainly those from the DOJ’s National Security Division — also suggest the probe is in its early stages, former agency officials have said.