U.S. District Judge Aileen M. Cannon’s ruling to allow a special master to review top-secret materials that former president Donald J. Trump purloined and left unsecured at his golf club has provoked a near-uniform consensus rarely seen in the current political environment: Her opinion is a mess and potentially dangerous.
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The sheer volume of criticism on the opinion is remarkable, as is the ideological range of voices expressing it, from Harvard constitutional scholar Laurence Tribe to former attorney general William P. Barr.
And that was before the most recent revelations about how explosive the contents of the snatched documents may be. The Post reports: “A document describing a foreign government’s military defenses, including its nuclear capabilities, was found by FBI agents who searched former president Donald Trump’s Mar-a-Lago residence and private club last month.” These are so sensitive that “many senior national security officials are kept in the dark about them.”
Yet Cannon proposes that a special master should paw through these documents to determine if a former president who improperly retained them can keep the executive branch from seeing its own documents. If the master should reach such a conclusion, does the judge propose we return the top-secret information to Trump?
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Cannon, in her ruling, fretted over the “reputational harm” that would result from seizing documents from a former president because he is a former president. What could personify the unequal treatment that erodes the rule of law more than that?
Her speculation about a viable executive privilege claim also had legal gurus scratching their heads. As former prosecutor Andrew Weissmann wrote for the Atlantic:
Although Cannon owes her seat to Trump, one might entertain the possibility that the inexperienced (read: unqualified) judge simply was confused. But there is reason not to give her the benefit of the doubt: She took the extraordinary step of rejecting, not simply ignoring, a persuasive amicus brief filed by a group of former Republican Justice Department officials that dismantled the notion that Trump has any legitimate executive privilege claim. Perhaps the brief hit its target too effectively, so the judge effectively put her fingers in her ears and waved it off, as if to warn other interested parties not to appear in her courtroom and try to expose her faulty reasoning. How could any person conclude that this judge is dispensing justice fairly or in good faith?
In an alternate reality — in which conservative jurists are concerned about national security, skeptical of the unitary executive theory and wary of judicial activism — it would be a no-brainer for the Justice Department to appeal Cannon’s decision to the notoriously conservative 11th Circuit. But we now have a federal judiciary laced with Trump appointees who cannot be relied upon to render a fair reading of the law. That’s an unpleasant fact and dangerous legacy of the Trump era that we will face for decades to come.
The Justice Department must therefore weigh the risks of drawing an intellectually corrupt appeals panel that will affirm the blatantly wrong lower court opinion, or suffering through Cannon’s order, hoping that a reputable special master can make quick work of the review. No one should envy the Justice Department decision-makers.
Sign up for a weekly roundup of thought-provoking ideas and debates
The sheer volume of criticism on the opinion is remarkable, as is the ideological range of voices expressing it, from Harvard constitutional scholar Laurence Tribe to former attorney general William P. Barr.
And that was before the most recent revelations about how explosive the contents of the snatched documents may be. The Post reports: “A document describing a foreign government’s military defenses, including its nuclear capabilities, was found by FBI agents who searched former president Donald Trump’s Mar-a-Lago residence and private club last month.” These are so sensitive that “many senior national security officials are kept in the dark about them.”
Yet Cannon proposes that a special master should paw through these documents to determine if a former president who improperly retained them can keep the executive branch from seeing its own documents. If the master should reach such a conclusion, does the judge propose we return the top-secret information to Trump?
Follow Jennifer Rubin's opinionsFollow
Cannon, in her ruling, fretted over the “reputational harm” that would result from seizing documents from a former president because he is a former president. What could personify the unequal treatment that erodes the rule of law more than that?
Her speculation about a viable executive privilege claim also had legal gurus scratching their heads. As former prosecutor Andrew Weissmann wrote for the Atlantic:
Moreover, Cannon’s attempt to divide the executive branch in two — allowing the intelligence community to proceed with the urgent national security review but preventing the Justice Department from investigating an explosive national security breach — is as untenable as it is unprecedented. And perhaps most egregiously, she takes the step of enjoining the executive branch from conducting its investigation, a shocking overreach that violates the separation of powers.
Although Cannon owes her seat to Trump, one might entertain the possibility that the inexperienced (read: unqualified) judge simply was confused. But there is reason not to give her the benefit of the doubt: She took the extraordinary step of rejecting, not simply ignoring, a persuasive amicus brief filed by a group of former Republican Justice Department officials that dismantled the notion that Trump has any legitimate executive privilege claim. Perhaps the brief hit its target too effectively, so the judge effectively put her fingers in her ears and waved it off, as if to warn other interested parties not to appear in her courtroom and try to expose her faulty reasoning. How could any person conclude that this judge is dispensing justice fairly or in good faith?
In an alternate reality — in which conservative jurists are concerned about national security, skeptical of the unitary executive theory and wary of judicial activism — it would be a no-brainer for the Justice Department to appeal Cannon’s decision to the notoriously conservative 11th Circuit. But we now have a federal judiciary laced with Trump appointees who cannot be relied upon to render a fair reading of the law. That’s an unpleasant fact and dangerous legacy of the Trump era that we will face for decades to come.
The Justice Department must therefore weigh the risks of drawing an intellectually corrupt appeals panel that will affirm the blatantly wrong lower court opinion, or suffering through Cannon’s order, hoping that a reputable special master can make quick work of the review. No one should envy the Justice Department decision-makers.
