What I'm reading: A judge's extraordinary intervention for Donald Trump

Guess who appointed her?

U.S. District Court Judge Aileen Cannon owes her position to Donald Trump and to the Republican senators who confirmed her to a lifetime judgeship after Trump lost the 2020 election. On Monday, she issued a ruling that left legal experts stunned. Not only did Cannon order the appointment of a special master to review documents obtained during last month’s search at Mar-a-Lago, she enjoined the Justice Department from using the material to pursue its criminal investigation.

University of Texas law professor Steve Vladeck called the ruling “preposterous,” adding, “So much for the hope that Judge Cannon was bending over backwards to look like she was accommodating Trump. This is twisting the law into a pretzel in ways that are as unsupported in precedent as they are unlikely to be followed in any future cases. Just a sad day for the courts.”

Even Trump’s former Attorney General Bill Barr characterized the decision as “deeply flawed in a number of ways.”

Some good reads breaking down the many problems:

Marcy Wheeler, who blogs as “emptywheel,” walked through Cannon’s “funny ideas about being owned.” Among other things, the judge implied “that the seizure of these documents two months after Trump swore he had turned over all documents marked classified in his possession is not immediately incriminating.”

Andrew Weissman, who worked on special counsel Robert Mueller’s investigation, offered this analogy in his essay for The Atlantic on “A Ruling Untethered to the Law”:

To understand the illogic of her decision, imagine the following scenario. I rob a bank of $1 million and stash the bags of cash in my hotel room. My gloves and wallet fall into one bag by accident. The police search my hotel room pursuant to a court-authorized warrant that permits seizure of the cash, gloves, and wallet. The judge appoints a special master to review the evidence seized, including every last dollar, even though I have no right to the return of anything that was seized. And she enjoins the criminal case for the duration.

The New York Times’ Charlie Savage quoted several legal experts on the judge’s “oblivious” findings on executive privilege. (Former presidents don’t have executive privilege, and it can’t be invoked to keep material from the executive branch.)

In this Twitter thread, former Acting U.S. Solicitor General Neil Katyal explained the faulty analysis related to standing and “irreparable harm” as well as executive privilege.

Legal nerds may enjoy Notre Dame law professor Samuel Bray’s piece for The Volokh Conspiracy, which examines Cannon’s many mistakes in how she asserted “equitable jurisdiction” as grounds for her intervention.

At Slate, Norman Eisen and Fred Wertheimer focused on a practical question: should the Justice Department appeal this ruling? Either path carries risks.

Speaking of risks, how much harm could Trump have done by keeping boxes of classified material at his insecure Florida resort? A lot, according to today’s breaking news from Devlin Barrett and Carol D. Leonnig for The Washington Post. One of the documents found at Mar-a-Lago in August described “a foreign government’s military defenses, including its nuclear capabilities.”

Some of the seized documents detail top-secret U.S. operations so closely guarded that many senior national security officials are kept in the dark about them. Only the president, some members of his Cabinet or a near-Cabinet-level official could authorize other government officials to know details of these special-access programs, according to people familiar with the search, who spoke on the condition of anonymity to describe sensitive details of an ongoing investigation.

Iowa Republicans have mostly kept quiet as evidence mounts that Trump stole classified material, among other records that belong to the National Archives. I’ll seek comment again from everyone who has bragged about landing Trump’s endorsement for the November election.

P.S.—You know how they say there’s always an Iowa connection? The connection here is that Cannon once clerked for Eighth Circuit Court of Appeals Judge Steven Colloton in Iowa.