We have been told countless times during the Trump Era that “no one is above the law.” Now we discover that this is mere word salad. Trump judicial appointee Aileen Cannon, in her opinion supporting her decision to grant Trump’s motion for a Special Master to review all of the documents the FBI removed from Mar-a-Lago on August 8, 2022, indicated quite clearly that the disgraced former president is not subject to the same laws that apply to the rest of us. She bent over backwards not to offend the man who put her on the bench via an astonishing decision that will delay the Justice Department’s criminal investigation of Trump for an indeterminate period. What makes this worse is that the more time passes before DOJ can determine what happened to the contents of the 48 empty folders containing now missing classified documents that the FBI found at Mar a Lago, the less likely that they will be found. They may already be in Moscow, Riyadh and/or somewhere else.
Two excerpts from Cannon’s decision make plain that Cannon deems Trump above the law: “As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own,” and “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.” Clearly, she has put Trump in a class by himself.
The Special Master will be tasked with reviewing more than 11,000 government documents for ones potentially subject to executive privilege or attorney-client privilege. This despite the fact that the Justice Department has already conducted such a review and did actually identify a number of documents that might qualify for the attorney-client privilege. During the Special Master’s review, she is enjoining the Justice Department from proceeding with its investigation.
There is no precedent for anything like this. Thwarting a criminal investigation because a judge doesn’t want to “offend” has no judicial basis.
The government is appealing this seriously flawed ruling. Unfortunately, such an appeal could take months and any decision by the 11th Circuit Court of Appeals could also take months.
Cannon, unlike the many Trump-appointed judges who heard and decided Trump’s 60-plus court challenges to the 2020 election results in a fair and impartial manner, demonstrated by this decision that she is nothing but a political hack. That label is backed up by the unusual step she took when the case was initially on her docket: even before hearing oral arguments, she announced publicly that she was inclined to grant Trump’s motion. This kind of judicial behavior is way out of bounds.
Moreover, her decision demonstrates that she does not understand executive privilege, which is intended to protect presidential communications with advisors from disclosure to parties outside the executive branch. Surely, she knows that the Justice Department is part of the executive branch. As such, it should not be barred from access to those communications. Confusing the matter even more, Cannon is allowing another executive branch agency, the Office of the Director of National Intelligence, to continue to evaluate the risk to national security deriving from Trump’s illegal retention of classified documents in the unsecured (read: open to anyone, including foreign spies) precincts of Mar-a-Lago. It makes no sense to treat two executive branch agencies differently with respect to executive privilege.
I should also note that Trump’s motion is part of a civil suit. There is no precedent for a judge in a civil suit prohibiting the government from conducting a criminal investigation. Also, this poor excuse for a judicial opinion failed to find that the Justice Department did anything wrong, which might be expected given the sanctions she has imposed on it. The incoherence of this judge and her decision is mind-boggling.
In arriving at her poorly-reasoned decision, Cannon had to contort herself into a judicial pretzel while ignoring Supreme Court decisions from the Nixon Watergate era that unambiguously counter her argument. In addition, the decision makes several leaps of faith far beyond what the Trump lawyers argued or what was established by the evidentiary record.
Even Trump Attorney General and Chief Sycophant, William Barr, believes that Cannon’s opinion is preposterous gibberish. Adjectives invoked by legal scholars who have commented on this decision range from “laughable” to “bizarre” to “nonsensical.”
This is the kind of monumentally unqualified judge the country gets when it blunders into choosing a president who has nothing but contempt for the rule of law. Both Trump and Cannon believe that laws are only for the little people.
September 12, 2022