A federal judge’s extraordinary decision on Monday to interject in the criminal investigation into former President Donald J. Trump’s hoarding of sensitive government documents at his Florida residence showed unusual solicitude to him, legal specialists said.
This was “an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation,” said Stephen I. Vladeck, a law professor at University of Texas.
Siding with Mr. Trump, the judge, Aileen M. Cannon, ordered the appointment of an independent arbiter to review the more than 11,000 government records the F.B.I. seized in its search of Mar-a-Lago last month. She granted the arbiter, known as a special master, broad powers that extended beyond filtering materials that were potentially subject to attorney-client privilege to also include executive privilege.
OUTSIDE ARBITER
Read the judge’s ruling granting President Donald J. Trump’s request for a special master to review the materials seized from his Florida home.
Judge Cannon, a Trump appointee who sits on the Federal District Court for the Southern District of Florida, also blocked federal prosecutors from further examining the seized materials for the investigation until the special master had completed a review.
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In reaching that result, Judge Cannon took several steps that specialists said were vulnerable to being overturned if the government files an appeal, as most agreed was likely. Any appeal would be heard by the Court of Appeals for the 11th Circuit in Atlanta, where Mr. Trump appointed six of its 11 active judges.
Paul Rosenzweig, a former homeland security official in the George W. Bush administration and prosecutor in the independent counsel investigation of Bill Clinton, said it was egregious to block the Justice Department from steps like asking witnesses about government files, many marked as classified, that agents had already reviewed.
“This would seem to me to be a genuinely unprecedented decision by a judge,” Mr. Rosenzweig said. “Enjoining the ongoing criminal investigation is simply untenable.”
Born in Colombia in 1981, Judge Cannon graduated from Duke University in 2003 and the University of Michigan Law School in 2007. After clerking for a Republican-appointed appeals court judge in Iowa, she worked as an associate for a corporate law firm for three years before becoming an assistant federal prosecutor in Florida.
In her Senate questionnaire, she described herself as having been a member of the conservative Federalist Society since 2005. Mr. Trump nominated her in May 2020, and the Senate confirmed her on Nov. 12, nine days after he lost re-election.
“Judge Cannon had a reasonable path she could have taken — to appoint a special master to review documents for attorney-client privilege and allow the criminal investigation to continue otherwise,” said Ryan Goodman, a New York University law professor. “Instead, she chose a radical path.”
A specialist in separation of powers, Peter M. Shane, who is a legal scholar in residence at N.Y.U., said there was no basis for Judge Cannon to expand a special master’s authority to screen materials that were also potentially subject to executive privilege. That tool is normally thought of as protecting internal executive branch deliberations from disclosure to outsiders like Congress.
“The opinion seems oblivious to the nature of executive privilege,” he said.
The Justice Department is itself part of the executive branch, and a court has never held that a former president can invoke the privilege to keep records from his time in office away from the executive branch itself.
The department had argued that even if a special master were appointed, there would be no legal basis for that person to examine issues of executive privilege. It cited a 1977 Supreme Court case involving the papers of former President Richard M. Nixon, who had tried to use executive privilege to shield them even though the sitting president disagreed.
But Judge Cannon wrote that she was not convinced and believed the Justice Department’s stance “arguably overstates the law.” In that case, she said, the Supreme Court also stated that former presidents retained some residual power to invoke executive privilege.
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This was “an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation,” said Stephen I. Vladeck, a law professor at University of Texas.
Siding with Mr. Trump, the judge, Aileen M. Cannon, ordered the appointment of an independent arbiter to review the more than 11,000 government records the F.B.I. seized in its search of Mar-a-Lago last month. She granted the arbiter, known as a special master, broad powers that extended beyond filtering materials that were potentially subject to attorney-client privilege to also include executive privilege.
OUTSIDE ARBITER
Read the judge’s ruling granting President Donald J. Trump’s request for a special master to review the materials seized from his Florida home.
Judge Cannon, a Trump appointee who sits on the Federal District Court for the Southern District of Florida, also blocked federal prosecutors from further examining the seized materials for the investigation until the special master had completed a review.
Advertisement
Continue reading the main story
In reaching that result, Judge Cannon took several steps that specialists said were vulnerable to being overturned if the government files an appeal, as most agreed was likely. Any appeal would be heard by the Court of Appeals for the 11th Circuit in Atlanta, where Mr. Trump appointed six of its 11 active judges.
Paul Rosenzweig, a former homeland security official in the George W. Bush administration and prosecutor in the independent counsel investigation of Bill Clinton, said it was egregious to block the Justice Department from steps like asking witnesses about government files, many marked as classified, that agents had already reviewed.
“This would seem to me to be a genuinely unprecedented decision by a judge,” Mr. Rosenzweig said. “Enjoining the ongoing criminal investigation is simply untenable.”
Born in Colombia in 1981, Judge Cannon graduated from Duke University in 2003 and the University of Michigan Law School in 2007. After clerking for a Republican-appointed appeals court judge in Iowa, she worked as an associate for a corporate law firm for three years before becoming an assistant federal prosecutor in Florida.
In her Senate questionnaire, she described herself as having been a member of the conservative Federalist Society since 2005. Mr. Trump nominated her in May 2020, and the Senate confirmed her on Nov. 12, nine days after he lost re-election.
After Judge Cannon was assigned to Mr. Trump’s special master lawsuit, she made the unusual move of publicly declaring that she was inclined to instate one even before hearing arguments from the Justice Department. But she could have done so in a far more modest fashion.“Judge Cannon had a reasonable path she could have taken — to appoint a special master to review documents for attorney-client privilege and allow the criminal investigation to continue otherwise,” said Ryan Goodman, a New York University law professor. “Instead, she chose a radical path.”
A specialist in separation of powers, Peter M. Shane, who is a legal scholar in residence at N.Y.U., said there was no basis for Judge Cannon to expand a special master’s authority to screen materials that were also potentially subject to executive privilege. That tool is normally thought of as protecting internal executive branch deliberations from disclosure to outsiders like Congress.
“The opinion seems oblivious to the nature of executive privilege,” he said.
The Justice Department is itself part of the executive branch, and a court has never held that a former president can invoke the privilege to keep records from his time in office away from the executive branch itself.
The department had argued that even if a special master were appointed, there would be no legal basis for that person to examine issues of executive privilege. It cited a 1977 Supreme Court case involving the papers of former President Richard M. Nixon, who had tried to use executive privilege to shield them even though the sitting president disagreed.
But Judge Cannon wrote that she was not convinced and believed the Justice Department’s stance “arguably overstates the law.” In that case, she said, the Supreme Court also stated that former presidents retained some residual power to invoke executive privilege.
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‘Deeply Problematic’: Experts Question Judge’s Intervention in Trump Inquiry
A ruling by a judge appointed by former President Donald J. Trump surprised specialists and could slow the documents investigation.
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