The wackassery continued this holiday weekend in Trump’s desperate effort to throw a wrench in the investigation of the mountain of expropriated government documents he was keeping in a storage locker by the pool at his country club. Yesterday, US District Judge Aileen Cannon agreed to appoint a special master to filter out not just attorney-client records, but anything which might be covered by executive privilege, as well as the former president’s personal property. And for good measure, she ordered the Justice Department to stop using the information it already reviewed in its ongoing criminal investigation.
How can a judge in a civil suit enjoin the federal government from conducting a criminal probe, particularly when there’s been exactly zero finding that prosecutors did anything other than strictly by the books?
Over the past two weeks, Trump’s lawyers have deposited several indignant piles of word vomit, heavy on innuendo and light on legal reasoning, on the South Florida docket. But Team Trump’s failure to make a coherent legal argument was no deterrent to Judge Cannon, who filled in all the blanks for them, and even spared them the trouble of going through the hassle of filing a Rule 41 motion for the return of personal property, under the guise of ensuring “at least the appearance of fairness and integrity under the extraordinary circumstances presented.”
“Settled law permits him, as the owner of the premises searched, to object to the seizure as unreasonable,” she tut-tuts, invoking a Fourth Amendment claim never asserted and ignoring the fact that such an objection should properly have been lodged with US Magistrate Judge Bruce Reinhart, who approved the original warrant.
The first bit of Trump’s homework that Judge Cannon completes for him is to go through the four-part analysis from Richey v. Smith, 515 F.2d 1239, to justify her own equitable jurisdiction. While conceding that “at least based on the record to date, there has not been a compelling showing of callous disregard for Plaintiff’s constitutional rights,” the court invents “an individual interest in and need for the seized property” and “irreparable injury” from deprivation thereof that was never argued in Trump’s motions and is certainly not established by the evidence on the record.
Normal criminal suspects are accorded no such deference — it’s pretty much axiomatic that the government gets to keep your shit, even when the warrant is somehow defective. And here, it wasn’t. Indeed, US Magistrate Judge Bruce Reinhart specifically authorized agents to seize items adjacent to the government documents because they are evidence of improper storage and possession. That’s why Trump’s passports got confiscated in the search when the FBI “seized the contents of a desk drawer that contained classified documents and governmental records commingled with other documents.” It’s pretty hard to blame the General Services Administration, or the coffee boy, or gremlins for stashing government property in your desk drawer commingled with your personal documents.
Nonetheless, Judge Cannon tasked the special master with weeding out the former president’s “personal effects,” treating his lawyers’ gobbledygook filings as a motion for the return of property under Rule 41 of the Federal Rules of Criminal Procedure, even though no such motion was ever filed, and anyway, this is civil proceeding.
The court also made much of the fact that the DOJ’s filter team misclassified one document as not attorney-client privileged, only to have prosecutors catch the mistake and give it back. She not only cites the acknowledgement of the error as evidence that the process is fatally flawed, but huffs in a footnote that the government hasn’t removed the agents who caught the goof from the investigatory team.
Even accepting the Government’s untested premise, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the Investigative Team. Perhaps most concerning, the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team.
This order invents a set of entirely new judicial standards for the person who appointed her to the bench, and Judge Cannon makes no effort to hide it.
“Plaintiff has claimed injury from the threat of future prosecution and the serious, often indelible stigma associated therewith,” she says, invoking a legally cognizable interest in not getting prosecuted that regular investigatory targets could only dream of.
“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,” she added later. “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.”
Why anything other than attorney-client materials collected pursuant to a duly executed warrant “ought to be returned” is not entirely clear, and certainly not based on arguments put forward by Trump’s lawyers. Nevertheless, Judge Cannon appears to be contemplating giving government property back to Trump, tasking the special master with filtering out material subject to a claim of executive privilege.
Any such document would appear to be the property of the executive branch by definition. Nevertheless, the Judge Cannon focuses on the theoretical residual privilege interest acknowledged by the Supreme Court in Nixon v. Administrator of General Services, 433 U.S. 425 (1977) in support of the proposition that “arguably” Trump’s invocation of executive privilege might override Biden’s waiver of it. She similarly gestures toward dicta in the denial of cert for Trump’s challenge to the National Archives disclosure of his presidential records to the January 6 Select Committee. But Nixon lost that case, and so did Trump, so it seems highly unlikely that any privilege claim invoked to shield his own criminal activity from investigation by the DOJ, which is a part of the executive branch, is totally doomed. And not for nothing, but the Presidential Records Act sets out a procedure and venue for the invocation of executive privilege, and it doesn’t involve absconding with documents and lucking onto the friendly docket of a 41-year old denizen of the Federalist Society parked in South Florida.
So now the Justice Department is foreclosed from using any of the evidence seized, as the parties are instructed to confer and come up with proposed candidates and procedures for the special master order. And prosecutors have to decide whether to appeal this batshit order, at least insofar as it enjoins them from doing their jobs. In a normal world, we’d just be looking at a delay of a few weeks, since the subset of documents covered by attorney-client and executive privilege is probably relatively small. But considering Judge Cannon’s gift to her patron, and Trump’s prior efforts to describe virtually every activity undertaken by his administration as presumptively privileged, God only knows what’s going to happen here.
Special Master Sidney Powell? Could be!
Liz Dye lives in Baltimore where she writes about law and politics.