I spend most of my days reading legal filings and court dockets. I am usually disappointed. However, the past few weeks have given me a sliver of hope that not every single judge is politicized and compromised.
We shouldn't be excited when a judge acts fairly and impartially and follows norms and customs, or at least what they perceive to be norms and customs, because there is nothing "normal" about what the Biden DOJ has been doing lately. However, I am heartened by this ten-page order written by Judge Cannon in the Trump v. United States matter.
You can read the entire order here.
To break it down: President Trump asked that a Special Master be appointed to filter the material seized in the raid on his home. He did so because it became abundantly clear that the DOJ wasn't acting in good faith and had scooped up a swath of material they shouldn't have, including tax records (I wonder why they would want those?), medical records, passports, clothing, newspaper articles, and assorted gifts he had been given. He couldn't adequately assess what may have been taken, though, because the inventory list compiled by the government has left a LOT to be desired.
The DOJ pushed back against that and said it wasn't necessary because it would slow them down and cause an issue with their ongoing security review. They say they are currently assessing how grave of a threat to national security it was that President Trump possessed documents at his heavily guarded home that they say are marked with sensitive markings.
There's an argument about whether those documents are truly classified, but that is a topic for another column.
The judge agreed with President Trump; the situation is entirely novel, this has never happened before, the harm to the former President could be significant (especially if the DOJ is wrong), and the situation warranted a Special Master. She demanded that the parties provide her with a list of potential candidates. They did.
But, the government also scolded the judge for her ruling, let her know they would be appealing, and asked her to stay, or pause, the Special Master from being able to look at a specific subset of documents that they had determined were so sensitive, the inclusion of those documents within the Special Master review, would harm the country, maybe irreparably. Ok, I kid a bit about the last part, but it isn't much of a stretch.
Of course, President Trump's legal team disagreed with that and filed a response explaining why. Yesterday, the judge ruled on a few things; whether the government would get their "pause," who the Special Master would be, the timetable for his review, and who would pay for it. The following are excerpts of her order on the stay portion of things that had me pretty elated, namely because they show that we are in the courtroom of a judge who actually gets it.
First, it's important to note that when a judge is considering whether to grant an extraordinary request like the one the government has made, they look at several factors. Two of the most important? Is their case likely to succeed on the merits in general, and then whether or not they are going to be injured if the judge doesn't rule in their favor. Should a judge move ahead and grant the request, it means that both of those two things are likely true, in addition to some other criteria that aren't weighted as heavily.
The judge took time to push back against two assertions the government made. The government expects every court to believe everything they say by sheer virtue of them being "the government." This judge won't do that. The issue for the DOJ is that the two assertions are likely the centerpiece of any potential indictment they could bring against Trump.
- All of the 100 documents that are marked classified that the DOJ wishes to exclude are indeed "classified government records."
- President Trump has no possible claim of privilege related to any of those documents.
The judge says she isn't going to just take their word for it, hence the need for a Special Master in the first place.
Then the judge talks about the fact that it is undisputed that the DOJ took personal items outside the scope of the search warrant and that there are documented reasons to doubt the government's ability to filter all of those things out in a fair manner. She also goes after the DOJ for the terrible job it did with the property inventory and the problems that Trump has had trying to work these issues out before he filed suit in her court.
The judge reminds the DOJ what the special master appointment actually means with a sort of incredulous tone. Here is how I imagine it would go if they were in person.
Judge Cannon: I don't understand the issue here. You guys have to wait about a month for this review to be finished before you can potentially use any of the documents that remain for a criminal indictment. Whatever the Special Master determines is outside of scope wouldn't be used by you anyway. In the interim, you can still investigate or bring charges on other things that don't have to do with the content of the documents you seized. You can still question people about how the documents moved around and when. You can EVEN BRIEF CONGRESS and continue your national security review you say is so important!
But then, she kills them with their own leaks.
If this material you seized is so important and vital to national security, why in the hell are you leaking its contents to the media now that you have it in your possession??
And then another statement I will just let you read. It's about damn time.
This case is just getting started. The DOJ has filed its appeal in the 11th Circuit. I don't suspect they will win, but if for some reason they do, it will then go to the SCOTUS. When it gets there, I can bet they definitely won't win. The DOJ seems to be in a rush, and all of this process and fighting against something they should be perfectly willing to consent to (should they be acting above board) is really slowing their timetable. There is absolutely NO REASON why the government wouldn't WELCOME a special master who could confirm they've done everything by the book as they say and hand them an easy path to whatever indictment it is they are looking to throw at President Trump...Except, it doesn't seem that they've done ANYTHING by the book, and a Special Master is going to remove their ability to use mountains of documents that they desperately need for "Trump guilt" in the court of public opinion or a court of law. I expect the leaking to escalate in pace rather quickly now.
Hurrah for Judge Cannon, who is at least allowing the American people a teeny bit of perceived fairness.