Update to Trump Appointed U.S. District Judge Aileen Cannon Needs To Be Impeached For Political Favors From The Bench.

Where-ever law ends, tyranny begins. The equality of all citizens under the law is a lynch-pin of the modern notion of the rule of law in a democratic state.” – John Locke (1689).


The Department of Justice in artful pleadings gave Judge Aileen Cannon an offramp from which to walk back her horrendous opinion and save face, an opinion which was roundly condemned by legal experts from both the right and the left. What she did was indefensible.

Instead of taking the opportunity to do the right thing, Judge Aileen Cannon decided to double-down on her original idefensible opinion with one which is even less defensible.

We have a rogue judge who sees her only duty as defending Donald Trump, to bestow political favors for putting her on the bench, and the national security interests of the United States be damned. Judge Aileen Cannon is a national security risk as much as Donald Trump. She is in violation of her oath of office. She must be impeached.

NBC News reports, Federal judge appoints special master to review documents seized at Mar-a-Lago:

A federal judge appointed a special master to review documents the FBI seized from former President Donald Trump’s Florida estate while denying the Justice Department continued access to roughly 100 classified documents for use in its criminal investigation.

In an order Thursday, U.S. District Judge Aileen Cannon named Raymond J. Dearie, a senior U.S. district judge for the Eastern District of New York, to review all of the materials seized on Aug. 8. The Trump team had proposed Dearie, and Justice officials had previously signaled its approval for him as a potential arbiter to determine if any of the documents are protected by attorney-client or executive privileges.

The Justice Department had asked for a stay of the judge’s previous motion so it could continue to review the seized documents for use in a criminal investigation. Cannon denied that request, saying she isn’t prepared to accept all of the department’s assertions at face value without the special master review process. 

Note: Trump’s lawyers never asserted in their pleadings that classified documents had been declassified by Trump. DOJ submitted an affidavit from the FBI’s assistant director for the counterintelligence division of the FBI that the documents are classified and have not been declassified through the appropriate procedures. So this judge is siding with Donald Trump’s out of court statements that he verbally declassifed the documents, and the judge is questioning the veracity of the director of the department who oversees classified documents, and she does this without any factual basis recited in the record.

More importantly, the search warrant for government documents did not turn on the classification of the documents, it is irrelevant to Trump being in possession of government documents which he is not entitled to possess, and for two counts of obstruction of justice, for which the Magistrate Judge found probable cause that a crime has been committed, and that Trump is in possession of evidence of that crime. This seems to keep getting larrantost in media reports.

“The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion,” Cannon wrote in the Thursday evening ruling.

The Justice Department had argued that the Sept. 5 order impeded the intelligence community’s review of any national security risks posed by improper storage of the documents.

Cannon on Thursday, however, insisted that her order didn’t restrict the government from continuing to review the seized materials for intelligence classification and national security assessments or from briefing members of Congress.

The order, she said, blocked the government “from further use of the content of the seized materials for criminal investigative purposes,” such as presenting the materials to a grand jury and using them for witness interviews for a criminal investigation pending Dearie’s recommendations.

This is unheard of. She is enabling a criminal suspect to block a criminal grand jury investigation into his criminal conduct. The time to raise these evidentiary defenses is after an indictment.

The government is likely to appeal Thursday’s decision. The Justice Department said in a court filing last week that it would appeal Cannon’s previous order to the 11th U.S. Circuit Court of Appeals.

This latest opinion must be appealed so that this horrendous opinion does not become a precedent.

Dearie, a former federal judge nominated by President Ronald Reagan, was among a pair of candidates recommended by Trump’s legal team for the role of special master. The Justice Department, which had proposed two candidates of its own, later approved of Dearie for the role.

Cannon laid out the duties of the special master to include conducting a “privilege review” of the documents and checking them against the property inventory, as well as making recommendations about personal items, documents and presidential records that might be under dispute between the parties.

Cannon said the special master would also be responsible for evaluating any claims about the return of property.

The judge set a deadline of Nov. 30 for Dearie to conclude his review and classifications.

Note: Towards the end of her discussion on the burden of showing “irreparabe harm” for an injunction, Judge Cannon says “As Plaintiff articulated at the hearing, the investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness.” In other words, she is giving an ex-president special privileges over every other citizen of the United States. So much for “blind justice.” This judge is cavalierly violating her oath of office, as if she will never be held accountable:

Title 28 § 453. Oaths of justices and judges

Each justice or judge of the United States shall take the following oath or affirmation be- fore performing the duties of this office: ‘‘I, ___ ___ , do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.’’

Ian Millhiser adds, Three takeaways from that Trump judge’s latest order in the Mar-a-Lago case:

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.”

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 tonight. 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 that 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’s 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.

I would expect to see an emergency appeal to the 11th Circuit Court of Appeals filed before the end of the day.