At some point we are going to have to begin impeachment proceedings for Trump appointed judges from Leonard Leo’s list of unqualified ideological judges from the Federalist Society.
Federal Judge Aileen Cannon, nominated by Donald Trump and who assumed office exactly one week after Election Day on November 13, 2020, is moving up to “number one … with a bullet!,” as the disc jockeys used to say, for impeachment.
Donald Trump and his incompetent lawyers forum shopped where they could file their ridiculous lawsuit in order to get a Trump appointed judge more loyal to him, for the lifetime appointment to a well-paid judgeship, than to the rule of law. They apparently found what they were looking for in Judge Aileen Cannon.
Politico reports, Judge signals she’s likely to back Trump request for Mar-a-Lago special master:
A federal judge said [in a “preliminary” order] Saturday she’s inclined to grant Donald Trump’s request to bring in an outsider to oversee the review of more than two dozen boxes of materials the FBI seized from the former president’s Florida estate earlier this month.
In her brief order, which she emphasized was not a final decision, U.S. District Court Judge Aileen Cannon also directed the Justice Department to produce by Tuesday “a more detailed” list of items seized from Trump’s residence on Aug. 8 as well as the status of the government’s ongoing review of those materials, which includes the use of a “filter team” to screen for attorney-client privileged records.
The FBI executed a search warrant of the Mar-a-Lago estate aimed at recovering what a magistrate judge said were “highly classified” documents in Trump’s possession. The search was part of a criminal investigation into alleged (1) “willful retention” of classified information, (2) theft of government records, and (3) obstruction of justice.
Cannon, who was nominated by Trump and confirmed by the Senate about a week after his defeat in 2020, said she plans to hold a hearing Thursday in West Palm Beach on the former president’s request for a special master. She typically convenes court in Fort Pierce, Fla., about an hour’s drive north of there.
The judge’s two-page order giving “notice of [her] preliminary intent to appoint a special master in this case” came less than a day after Trump’s attorneys late Friday made a pitch for an independent review of the materials seized from his Mar-a-Lago estate and before prosecutors filed any reply.
Brandon Van Grack, a former National Security official at the DOJ, explains in a twitter thread:
Judges don’t need a security clearance to review CL info. So if Judge Cannon requests access to any of the CL docs seized at MAL, DOJ would be hard-pressed to deny the request. However, her order should not be read as a request to review CL info at this time. 2/
— Brandon Van Grack (@BVanGrack) August 28, 2022
As for defense counsel, their access to CL info is governed by CIPA, which regulates DOJ’s disclosure of CL info in criminal cases (separate rules govern civil cases). CIPA balances the rights of defendants w/ interests of the US govt to protect CL info. 4/
— Brandon Van Grack (@BVanGrack) August 28, 2022
Defendant’s counsel must obtain an appropriate security clearance to receive access to CL info. That has led to cases where a def's counsel can't obtain the requisite clearance and so the defendant needs to obtain add'l counsel. 6/https://t.co/CkSK185mzL
— Brandon Van Grack (@BVanGrack) August 28, 2022
It’s also possible for persons who previously had a security clearance—like spies—to be denied access to CL info they once possessed. This is often an area of significant dispute between the parties and normally requires the judge to weigh in. 8/
— Brandon Van Grack (@BVanGrack) August 28, 2022
In cases involving mishandling of CL info, some of it must be disclosed to defense counsel because the criminal charge involves identifying the specific CL docs that were allegedly mishandled. The CL info must also be shown, in some fashion, to a jury. 10/
— Brandon Van Grack (@BVanGrack) August 28, 2022
In the case of MAL, with hundreds of documents at issue, there may be some CL docs that would be too sensitive to provide to defense counsel and/or a jury, such as the ones marked TOP SECRET/HCS or SI. However, there would likely be plenty of other CL docs to use. 12/
— Brandon Van Grack (@BVanGrack) August 28, 2022
The procedures and issues above are seldomly at issue in cases and require particularized knowledge and experience. At DOJ, a special section handles CIPA cases—the Counterintelligence & Export Control Section, which is running the MAL case. 14/
— Brandon Van Grack (@BVanGrack) August 28, 2022
Cannon gave no indication how she viewed Trump’s claims that the search was unnecessary and extreme. Instead, she asked Trump to file a brief responding to the Justice Department’s produced list of seized materials. She also asked both sides to describe specifically the role they envision for a special master. [Note: There is no “special master” for executive privilege cases. Also, there is no “special master” for classified information cases. So what is this judge doing?] And she asked DOJ to reveal the status of its filter review, and whether any investigators outside of the review team had seen the seized materials.
The Department of Justice declined to comment on the ruling.
Appointments of special masters to oversee the handling of evidence seized in federal criminal investigations are unusual, but typically have occurred when prosecutors seize records from an attorney’s office. Judges in Manhattan used the mechanism in recent years in connection with investigations into two Trump attorneys: Michael Cohen and Rudy Giuliani.
Then there is the spectacle of this Trump nominated judge assisting Trump’s incompetent lawyers to help her to help them. Mark Sumner at Daily Kos makes some salient points. Trump’s hand-picked judge breaks all legal rules to give him the ‘ridiculous’ ruling he wanted:
It should have been possible to see what was coming, when Donald Trump’s team of highly unqualified attorneys managed to submit Trump’s complaint incorrectly, and the judge gave them a do over. Then the complaint came in missing everything necessary, and the judge sent instructions on exactly what she wanted to see. And now the Trump-appointed judge has broken with all legal precedent, and written wholly new law in the process, to give Donald Trump exactly what he wanted—a special master. [Not yet.]
Judge Aileen Cannon didn’t stop with saying she intends to appoint a special master, she insists that the federal government provide a more detailed list of the documents taken, a list to be shared with Trump. Only she seems to have missed even more steps than Trump’s attorneys, like even sending the suit to the supposed “defendant,” or giving any reason why [she] can intervene in any way.
How any of this would work, and how anyone would appoint a special master to review documents classified at the highest possible level … seems not just impossible, but ridiculous. But then, this is entirely new legal ground … the kind that should only exist in the Twilight Zone.
Actual legal experts have some opinions about this ruling.
Wow. She has not even heard opposition. I've never ever seen an order like this. She doesn't even describe what the Special Master would do. This is an insane order as a journalist you should describe it as such. She could have just set a briefing schedule.
— Armando (@ArmandoNDK) August 27, 2022
Sarah Burris adds, Legal experts bash ‘pandering’ judge running to Trump’s defense — and predict he’ll be charged with obstruction:
Former prosecutors Cynthia Alksne and Glenn Kirschner sounded the alarm about the judge who granted Donald Trump’s demand for a “special master” to review the documents at Mar-a-Lago for any possible attorney-client privilege, while speaking to MSNBC fill-in host Michael Steele.
Kirschner pointed out that never in his 30 years practicing law has he ever seen a judge make a ruling before she’d heard from the opposing side.
“I went back and looked at U.S. District Judge Aileen Cannon’s order, and here is what she said,” Kirschner began. “Before I read this one sentence, Michael, mind you that she entered this tentative order before the Department of Justice prosecutors even had an opportunity to weigh in on the issue. She said quote, ‘The court hereby provides notice of its preliminary intent to appoint a special master in this case.’ And she has only heard from Trump’s defense team.”
He said that he’s never heard a judge announce a “tentative ruling” before both parties have been heard.
“I think this indicates a judge who has extraordinarily poor judgment at best, and at worse is biased in favor of Donald Trump,” he continued. “As a footnote, I think it is worth mentioning that she was confirmed by the Senate, Mitch McConnell’s Senate after Donald Trump lost the presidential election.”
Alksne straight-up called it “pandering. I think that is the legal term for this garbage.”
She went on to say that there likely won’t be a so-called “special master” appointed. The government seems to be indicating that they’ve already searched through the documents with those who have the appropriate level of clearance. The appointment of a special master would mean that they had to find someone who has the highest level of clearance to handle such documents in a secure facility. The problem, however, is that there is no “special master” for executive privilege cases. The Justice Department is likely to appeal the decision to a higher court that will overrule Judge Aileen Cannon, and likely, publicly humiliate her.
“I do not think there will be a special master,” Alksne explained. “He has requested a special master, basically, because Rudy got one in the attorney-client case. This isn’t an attorney-client privilege case. They’ve cited the wrong statutes as they are to appoint the special master. There is no special master and executive privilege cases. And in the Presidential Records Act, executive privilege cases — those must be filed in D.C. This is filed in Florida. So, it is in the wrong jurisdiction. And there is no special master for classified information cases. So, I think it is only a matter of time when the pandering ends by the Trump judge that there will not be a special master and that this is a delay tactic.”
Kirschner called “pandering” a nice characterization.
“There’s also the possibility of an obstruction of justice charge. Trump may have escaped accountability under the obstruction of Robert Mueller’s probe, but he no longer enjoys the protection of the executive branch and the Justice Department’s decision not to indict a sitting president. Kirschner called the likely charges of obstruction “more than just a possibility.”
“The reason it is such an important criminal charge that the FBI agent who drafted the affidavit, in support of the Mar-a-Lago search warrant, included in what they are criminally investigating, is because it does not matter the nature of the documents,” said Kirschner. “They could be classified, they could have been magically declassified by Trump, not really, but that is what he is claiming. They could be confidential secrets, secret SCI special access programs. They could be whatever, and the fact that Trump and company secreted them, concealed, them and refused to produce them even after being subpoenaed for them — is what makes this obstruction of justice regardless of the classification of those documents.“
Alksne also said that the blacked-out portion of the affidavit is likely the “obstruction” part of the case against Trump.
“It is the heart and soul of this investigation,” she explained. “And the decision on prosecution ultimately will be based, in my, opinion, on the obstruction if there is national security damage. That assessment is being undergone right now.”
More:
I completely agree with Orin. And even if a Special Master is appointed, it does not change Trump’s criminal liability one whit. It just means, at most, that some of the documents will be returned to him in the interim. Wouldn’t shock me if DOJ does not oppose the Special Master. https://t.co/fuZEnLIZzy
— Neal Katyal (@neal_katyal) August 28, 2022
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Trump’s incompetent lawyers playing for delay did’t count on this, “Trump’s Mar-a-Lago documents already examined by FBI, Justice Dept. tells judge”, https://www.washingtonpost.com/national-security/2022/08/29/trumpspecial-master-documents/
FBI agents have already finished their examination of possibly privileged documents seized in an Aug. 8 search of Donald Trump’s Mar-a-Lago home, according to a Justice Department court filing Monday that could undercut the former president’s efforts to have a special master appointed to review the files.
The “filter team” used by the Justice Department to sort through the documents and weed out any material that should not be reviewed by criminal investigators has completed its review, the brief filed by Justice Department prosecutors says. The filing came in response to a decision Saturday by U.S. District Judge Aileen M. Cannon to hold a hearing this week on Trump’s motion seeking the appointment of a special master.
Poliitco adds, “DOJ indicates Trump’s demand for special master may be too late”, https://www.politico.com/news/2022/08/29/doj-trumps-demand-special-master-00054062
The government indicated Monday that Trump’s demand — which came nearly two weeks after the search of his Mar-a-Lago estate — may have come too late.
The Justice Department told a federal judge that its review of the records seized identified only a “limited set” that might “potentially” be attorney-client privileged.
The department indicated that the privilege review — conducted by a “filter team” designed to screen attorney-client information from investigators probing potential criminal violations related to national-security-related documents stored at Trump’s Florida residence — has been completed.
The review appears to have only sought to isolate any potential attorney-client privileged documents and left unaddressed Trump’s claims that some of the documents are covered by executive privilege.
[Reminder: An ex-president has no executive privilege, the privilege belongs to the incumbent prresident. Also, there is no executive privilege defense to mishandling of national defense information.]
The filing Monday from Justice Department attorney Jay Bratt and U.S. Attorney for Southern Florida Juan Antonio Gonzalez suggests at least part of what Trump sought may be moot.
Bratt and Gonzalez noted that the filter-team procedures had been approved in the search warrant, granted on Aug. 5 by Magistrate Judge Bruce Reinhart. They referred Cannon to the recently unsealed affidavit underlying the search, which laid out the process.
“[T]he Privilege Review Team will search the ‘45 Office’ and conduct a review of the seized materials from the “45 Office” to identify and segregate documents or data containing potentially attorney-client privileged information,” the affidavit indicates.
When the privilege team discovers potential attorney-client information, the procedures offer three options: to ask Reinhart for a determination, to withhold the documents from the investigative team or to ask Trump to waive privilege to permit investigators to review the documents. DOJ indicated those procedures had been followed.
Similarly, the procedures permit the filter team to transmit any records they deem unprivileged to investigators. It’s unclear if the team has already done so in this case.
The prosecutors also noted that the intelligence community is conducting a separate review of the records to determine their classification level and to assess the national security concerns implicated by the documents.
The filing Monday did not say explicitly whether Justice Department investigators have actually reviewed the records seized on Aug. 8, including any flagged in the privilege process. A more detailed filing from the Justice Department is expected by Tuesday night.
Cannon has set a hearing for Thursday in West Palm Beach to address Trump’s request for a special master, typically a retired judge, to oversee the process. While Trump has claimed that many of the records are covered by executive privilege, legal experts have raised doubts about how that would apply in this context.
Under the Presidential Records Act, ownership of official White House records transfers to the National Archives when a presidency ends. There are procedures for assertions of executive privilege after a president leaves office, but Trump’s authority to make such a claim without the backing of President Joe Biden is murky.