[ In her decision Monday, Cannon managed to cite the lone
independent “statement” in a recent Supreme Court opinion from
Justice Brett Kavanaugh, who wrote that a former president like Trump
does retain some executive privilege.]
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TRUMP WENT JUDGE SHOPPING AND IT PAID OFF IN MAR-A-LAGO CASE  
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Jose Pagliery
September 6, 2022
The Daily Beast
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_ In her decision Monday, Cannon managed to cite the lone independent
“statement” in a recent Supreme Court opinion from Justice Brett
Kavanaugh, who wrote that a former president like Trump does retain
some executive privilege. _

Photo Illustration by Kelly Caminero / The Daily Beast,

 

When former President Donald Trump summoned up years of bubbling
resentment and sued Hillary Clinton and everyone else
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involved in Russiagate
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earlier this year, he naturally filed his lawsuit in South
Florida—home to his oceanside estate.

And yet, when his attorneys formally filed the paperwork
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they selected a tiny courthouse in the sprawling federal court
district’s furthest northeast corner—a satellite location that’s
70 miles from Mar-a-Lago. They ignored the West Palm Beach federal
courthouse that’s a 12-minute drive away.

Trump’s legal team, it seemed, was specifically seeking out a
particular federal judge: one he appointed as president.

The tactic failed, and Trump instead got a Clinton-era judge whom he
promptly tried to disqualify for alleged bias. U.S. District Judge
Donald M. Middlebrooks called him out in a snarky footnote
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“I note that Plaintiff filed this lawsuit in the Fort Pierce
division of this District, where only one federal judge sits: Judge
Aileen Cannon, who Plaintiff appointed in 2020. Despite the odds, this
case landed with me instead. And when Plaintiff is a litigant before a
judge that he himself appointed, he does not tend to advance these
same sorts of bias concerns,” Middlebrooks wrote in April.

Months later, Trump is once again suing
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in the Southern District of Florida, this time seeking to hamper the
FBI investigation
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into the way he kept hundreds of classified records
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at Mar-a-Lago. Except this time, he got Cannon.

The strategy is already paying off.

On Monday afternoon, Cannon single-handedly hit the brakes on the most
politically sensitive and consequential FBI investigation
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ever undertaken. Convinced by Team Trump’s legal arguments that the
routine Justice Department methods for carefully handling seized
documents aren’t good enough when investigating this particular
former president, she ordered that a “special master” be tasked
with playing referee to dictate what happens with classified documents
that are evidence of a crime.

“The investigation and treatment of a former president is of unique
interest to the general public, and the country is served best by an
orderly process that promotes the interest and perception of
fairness,” she wrote in her order
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As they did last month at Mar-a-Lago, the feds typically rely on a
so-called “filter team” to separate constitutionally protected
communications between a suspect and their lawyer from evidence that
goes to the actual investigators working on the criminal case. But
Cannon ordered the appointment of a “special master”—from a list
of candidates who are amenable to both the DOJ and Trump—to further
oversee the handling of those documents. The fact that Trump may have
a say is a notable victory rarely granted to someone accused of crimes
as serious as violations of the Espionage Act
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Cannon held back on deciding whether the FBI should return Trump’s
personal items—like accounting documents, medical records, and
tax-related correspondence—even though the DOJ has indicated that
their placement next to some of the nation’s most highly classified
secrets officially makes them evidence of Trump’s criminal
recklessness that could be shown at a future trial.

Her ruling was widely criticized by former prosecutors and legal
scholars on Monday over the way it awkwardly lent credence to the idea
that an ex-president can somehow assert “executive privilege” over
government documents, even if federal law enforcement agencies
operating with the tacit approval of a current president are acting in
their capacity as the current executive branch.

“This special master opinion is so bad it’s hard to know where to
begin… her analysis of standing is terrible. Trump wouldn’t own
these docs anyway, so why does he get a Master over them?” tweeted
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Neal Katyal, a national security law professor who was previously the
nation’s top lawyer as the federal government’s solicitor general.

Katyal also criticized the way Cannon didn’t do what was largely
considered the right move: sending Trump’s lawsuit back to U.S.
Magistrate Judge Bruce E. Reinhart, who approved the search warrant of
Mar-a-Lago
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and already oversaw key elements of this matter.

“She let Trump forum shop for a judge, instead of letting the
magistrate judge evaluate these claims. The appearances here are
tragic,” Katyal wrote.

Cannon’s order was chock-full of innuendo, including odd swipes at
the Biden administration and jabs at investigative journalists for
their role in uncovering what exactly Trump did with these classified
records at Mar-a-Lago.

“The Court takes into account the undeniably unprecedented nature of
the search of a former President’s residence,” she wrote, citing a
potential lack of “customary cooperation between former and
incumbent administrations regarding the ownership and exchange of
documents” and stressing “the interest in ensuring the integrity
of an orderly process amidst swirling allegations of bias and media
leaks.”

She went even further, noting the importance of having an independent
referee oversee the handling of seized materials to ensure that Trump
wouldn’t suffer “irreparable injury” from “exposure to either
the Investigative Team or the media.”

Her comments notably come at a time when investigative journalists
have frequently led the charge on documenting evidence of Trump
administration corruption.

Cannon telegraphed much of her decision-making process during the
case’s very first public hearing on Thursday, when she entertained
the idea of blocking FBI special agents from reviewing the documents
they’ve already had for nearly a month—while still allowing the
Office of the Director of National Intelligence to continue using them
to assess the potential damage of having so many national security
secrets housed in desk drawers and boxes at a ritzy beach club.

“So would your position change,” Cannon asked a reluctant federal
prosecutor on Thursday, “if the special master were permitted to
proceed without affecting the ODNI's ongoing review for intelligence
purposes but pausing temporarily any use of the documents in criminal
investigation?”

According to a transcript
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the Justice Department’s top counterintelligence prosecutor, Jay I.
Bratt
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later summed up why it’s bonkers to have a former president assert
executive privilege against a current president to slow down the
FBI—and put some of the nation’s most closely guarded secrets
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right back into the hands of a former president who no longer has no
authority to have them
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“We have no idea where they would be stored; and again, this would
be giving access to people things that they do not have the right to
have access,” Bratt said, criticizing what he called “a fanciful
view that somehow they would… prohibit the Executive Branch from
reviewing the Executive Branch materials for a core Executive Branch
function.”

Her comments bewildered legal scholars and raised alarms at the time.

“Truly nonsensical what Judge Cannon may do here. Executive
privilege does not work this way,” tweeted
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New York University law school professor Ryan Goodman, who runs the
blog Just Security [[link removed]].

And yet on Monday, Cannon did just that, stopping the FBI while still
allowing the nation’s spy chief to keep using these seized documents
to conduct her damage assessment.

This isn’t the first time Trump has waved around his expired
credentials and claimed what some have called “leftover executive
privilege
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When he tried to stop the Jan. 6 Committee from obtaining his
administration’s records at the National Archives, the argument was
shot down
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by a federal judge who proclaimed that “presidents are not kings,
and plaintiff is not president.” The legal argument was also
resoundingly rejected
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by an appellate panel, and the Supreme Court gave him the cold
shoulder
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In Cannon, Team Trump will find a conservative-leaning lawyer who
spent more than a year waiting in line for a judicial appointment and
who, despite being a foreign-born Hispanic woman, wasn’t willing to
openly disagree with Trump’s racist remarks about a U.S. judge of
Mexican descent.

Cannon was born in Cali, Colombia, in 1981, just as Pablo Escobar’s
cocaine-trafficking Medellín Cartel started taking hold of the
country, with sicario assassins killing prosecutors and forcing scared
judges to hold court behind curtains. She grew up
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hearing stories about how her Cuban grandmother had to flee Fidel
Castro’s communist regime, and how her mother had to leave the
tropical island when she was only 7 years old. While attending Duke
University at the turn of the century, Cannon did a short stint as a
journalist at _The Miami Herald’s_ Spanish-speaking sister
newspaper, _El Nuevo Herald_, which closely covers the overwhelmingly
conservative expatriate community in South Florida.

According to government disclosure forms
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she joined the Federalist Society in 2005 just as she started law
school. She went on to do a clerkship with a federal appeals court
judge, Steven Colloton, who is known for conservative opinions,
including one that favored Christian objections to Obamacare’s
mandate forcing insurance companies to cover birth control and another
that upheld a South Dakota law requiring doctors to inform
abortion-seeking patients that women who have abortions are more
likely to kill themselves.

After a few years at the private law firm of Gibson, Dunn & Crutcher
in the nation’s capital, she returned to South Florida to become a
federal prosecutor in 2013. Senator Marco Rubio (R-FL) reached out to
her in June 2019 to recommend her to the federal bench. By September
of that year, she was already in touch with Trump’s White House
lawyers about the nomination.

Democrats in the Senate mostly either opposed her nomination or
withheld voting. Cannon asserted to Senator Diane Feinstein (D-CA) in
writing
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that she did not have any discussions about loyalty to President
Trump. But Cannon would not even address Trump’s hateful rhetoric
and damning comments about the judiciary. She dodged the topic when
Senator Cory Booker (D-NJ) brought up how then-candidate Trump in 2016
bashed the federal judge presiding over the civil fraud case against
the scammy Trump University with the claim that U.S. District Judge
Gonzalo Curiel had “an absolute conflict” because “of Mexican
heritage.”

“Do you agree with President Trump’s view that a judge’s race or
ethnicity can be a basis for recusal or disqualification?” Booker
asked in writing.

“As a judicial nominee, it would not be appropriate for me to
comment on the political statements of elected officials, including
President Trump,” Cannon responded.

She was confirmed by the Senate and started on the bench a week after
Trump lost his re-election bid in November 2020. Fast-forward two
years, and Cannon’s first major case involves the very president who
appointed her.

Cannon has shown her willingness to turn legal precedent that would
normally be expected to harm Trump into a tool that will help him.
During the Thursday hearing that led to this recent order, DOJ
national security lawyer Julie Edelstein cited a post-Watergate
scandal Supreme Court decision that cemented the idea that a former
president’s official papers belong to the American people. That
case, referred to as _Nixon v. GSA_, says that executive privilege
shouldn’t be cited to keep them private simply because it’s
convenient for the person who left office.

In her decision Monday, Cannon managed to cite the lone independent
“statement” in a recent Supreme Court opinion
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Justice Brett Kavanaugh, who wrote that a former president like Trump
does retain some executive privilege. She repeated what he wrote then,
that “a former President must be able to successfully invoke the
Presidential communications privilege for communications that occurred
during his Presidency, even if the current President does not support
the privilege claim.”

The only opposition vote favoring Trump in that Supreme Court decision
in January came from Justice Clarence Thomas, who remained silent. But
he might have something to say on the matter soon enough. If the DOJ
appeals this ruling, it could quickly make its way up to the appellate
courts, possibly in the form of an emergency request. If it does,
legal scholars have noted, the case could end up with the Supreme
Court judge assigned to hear extremely time-sensitive matters out of
Eleventh Circuit’s three southern states: Thomas.

_[JOSE PAGLIERY is a political investigations reporter at The Daily
Beast. He previously did investigative work at Univision New York,
CNN, and newspapers in South Florida. He enjoys exposing injustice and
corruption, so help him! Call or text with a tip: (305) 814-3006. Or
send an email: [email protected] or
[email protected] [[link removed]].]_

* Mar-a-Largo
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* Donald Trump
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* Capitol coup
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* Insurrection
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* espionage
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* Civil Society
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* transition of power
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* Judiciary
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* FBI
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