ICYMI, the Trump hack impeding the criminal investigation of the Mar-a-Lago documents caper does him another solid:
Judge 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 are classified at the highest levels. According to the Washington Post, these papers include “a document describing a foreign government’s military defenses, including its nuclear capabilities.” [snip]
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.” [snip]
... Cannon is giving him additional protections that virtually no criminal suspect enjoys, based largely on the fact that he used to be president. [snip]
How about lifting the order stopping the criminal investigation pending a special master's review of the stolen classified documents?
... 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.” [snip]
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.
And the role of the special master?
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.
The DOJ, as it indicated earlier, will appeal to the 11th Circuit Court. Professor Tribe weighs in:
Hard to imagine Cannon really expects to get away with this garbage, but she evidently thinks the Eleventh Circuit is in the tank with her. Only they can prove her wrong. https://t.co/6uTV4FkQDM
— Laurence Tribe (@tribelaw) September 16, 2022
