Aileen Cannon, the Trump-appointed judge recently known for twisting the law in knots in ways that undermine one of the Justice Department’s criminal investigations into former president Donald Trump, has issued a new order that, well, twists the law into knots.
Last month, the FBI executed a search warrant at Mar-a-Lago, Trump’s Florida residence, and seized several boxes of documents. They include 103 documents with classified markings, some of them indicating that the information contained in those papers is classified at the highest levels. According to the Washington Post, among these papers was “a document describing a foreign government’s military defenses, including its nuclear capabilities.”
Trump’s legal team has been waging a campaign in Cannon’s court to hinder the DOJ’s ability to look into those documents. Cannon on Thursday gave Trump another win in that campaign, although her latest order does slightly narrow one of Trump’s earlier victories in her courtroom.
The Constitution provides several safeguards against unreasonable searches and seizures by law enforcement. The FBI must have probable cause to justify a search of a private residence, and it must obtain a warrant issued by a neutral magistrate.
Although DOJ complied with these constitutional requirements, Cannon issued an order earlier this month arguing that Trump is entitled to special protections that are rarely afforded to any criminal suspect, in large part because of Trump’s “former position as President of the United States.”
Specifically, Cannon ordered the Justice Department to halt its criminal investigation into Trump until a court-appointed official known as a “special master” reviews the seized documents.
Although Cannon’s original order permitted DOJ to continue a parallel national security investigation assessing how Trump’s possession of these documents may have damaged national security, DOJ informed Cannon in a motion filed last week that these two investigations “cannot be readily separated,” in large part because they are being conducted by the same personnel.
In last week’s motion, DOJ asked Cannon to allow its criminal investigation to continue with respect to the 103 classified documents. On Thursday, Cannon formally denied that request, and appointed Raymond Dearie, a senior federal judge, as that special master to review all of the documents seized from Trump for indications that they may be protected by attorney-client or executive privilege. Cannon also instructs Dearie to begin his review with the classified documents.
DOJ has already indicated that it will seek relief from a federal appeals court, possibly as soon as Thursday night. The case is called Trump v. United States.
But there are several things worth digging into with Cannon’s order first.
Cannon’s new order suggests that Trump could somehow own classified government documents
Cannon’s original order rests on the proposition that Trump has made a plausible case that he has a “right to possess at least some of the seized property.” But, as the Justice Department noted in last week’s motion, Trump “does not and could not assert that he owns or has any possessory interest in classified records.”
Classified documents by definition belong to the federal government and not to a private individual — indeed, the whole point of classifying a document is to prevent that document from coming into the possession of anyone whom the government does not want to see it.
Moreover, the FBI says that some of the relevant documents are marked as “classified/TS/SCI,” a designation that refers to “sensitive compartmented information” — information that is typically stored in specialized facilities to prevent the information from getting out.
In her recent order, Cannon essentially says that the FBI cannot be trusted when it claims that these documents are classified. “The Court does not find it appropriate to accept the Government’s conclusions,” Cannon writes, that “all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records.”
Such skepticism of a law enforcement agency’s assertions might be welcome in another context. But, again, the Constitution lays out the requirements that the FBI must comply with in order to seize documents and use them in a criminal investigation — probable cause plus a warrant — and the FBI complied with these constitutional obligations.
If Trump believes that some of these documents were unlawfully seized from him, he can raise that argument at his criminal trial, if he is ever indicted, and seek to have the documents excluded from that trial. He could do, in other words, what every other criminal defendant is permitted to do.
But Cannon is giving him additional protections that virtually no criminal suspect enjoys, based largely on the fact that he used to be president.
Cannon gives the Justice Department a little more leeway, but probably not enough that they can safely make use of it
Recall that Cannon’s original order said that the FBI could continue its national security investigation into how Trump’s possession of these documents may have damaged the nation’s intelligence interests, but that it must pause its criminal investigation. In response to DOJ’s argument that these two investigations are difficult to disentangle, Cannon essentially replies that “difficult” does not mean “impossible.”
One of the government’s filings, she notes, “states that it would be ‘exceedingly difficult’ to bifurcate the personnel involved in the described processes.” But “exceedingly difficult,” she claims, is not the same thing as “inextricably intertwined.”
That said, Cannon’s latest order does contain some language suggesting that DOJ can continue some parts of its criminal investigation.
Though Cannon forbids the Justice Department from “presenting the seized materials to a grand jury and using the content of the documents to conduct witness interviews as part of a criminal investigation” — a restriction that effectively precludes DOJ from indicting Trump until Cannon’s order is lifted — she does write that “to the extent that the Security Assessments truly are, in fact, inextricable from criminal investigative use of the seized materials,” then the criminal investigation may continue.
In practice, however, it is far from clear that the Justice Department can take advantage of this concession by Cannon. Cannon’s new order contains only limited descriptions of what DOJ can and cannot do. And it is possible that the FBI will be unwilling to make its own judgment calls so long as it knows that a seemingly hostile judge may hold them in contempt if she disagrees with the FBI’s judgment.
Cannon seems to have no idea how classified documents work
One other line in Cannon’s opinion is worth noting. In its motion from last week, the Justice Department argued that “the Court’s order would irreparably harm the government and the public by unnecessarily requiring the government to share highly classified materials with a special master.”
As the Supreme Court held in Department of the Navy v. Egan (1988), “For ‘reasons . . . too obvious to call for enlarged discussion,’” determinations about who should be allowed to see classified documents “must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.”
But Cannon’s order effectively brings the special master, who does not have a “need to know” the information in the classified documents that is grounded in national security concerns, inside the community of individuals who are allowed to see specific highly classified documents. That places her order at odds with Egan, and with ordinary practices governing the nation’s most highly guarded secrets.
In any event, the most important upshot of Cannon’s order is that DOJ is now free to seek relief from a higher court. It is likely that they will do so as fast as their lawyers can draft the appropriate motion.