(Before reading, if you haven’t already, Read Parts I - III so you get the thread of posts.)
Saturday was my birthday when I turned none-of-your-business old. I looked forward to spending the long Labor Day weekend quietly with family. Two of the days were great. This grandkids were fun and full of life, the weather was warm and inviting.
But Labor Day is always on a Monday, and Monday is rarely a great day. And so it was yesterday. Torrents of rain descended on us, flooding streets and no doubt a few basements. Barbecues were no doubt canceled and my beloved Sox likely would have been canceled except that they played in Tampa - in a domed stadium. The Sox lost 4-3. Better they should have gotten rained out!
To match the gray mood that matched the gray day, Judge Aileen Cannon of the southern Federal District Court of Florida issued her order regarding Donald Trump’s motion for a Special Master to review the documents lawfully seized from his residence on August 8. It was all I feared it would be. If not a legal victory for Trump, it was at least a procedural win. The court granted Trump’s barely coherent coloring book motion(s) for a Special Master to review the documents taken from Mara a Lago.
In Part I of this series, I warned that hard cases make bad law. All the various iterations of investigations into Trump’s activities while president could well result in charges being filed in various courts throughout the country. Clearly, we’ve already seen the legal fracas in the southern Federal District Court in Florida. There’s the Georgia investigation into voter fraud. Ostensibly a potential civil case, the New York Attorney General is looking into Trump’s finances. And we know that there’s a federal grand jury in the District of Columbia investigating all aspects of the January 6, 2021 insurrection/attempted coup.
That may be a short list. Time will tell. But one thing is certain, any case brought against Trump will likely be treated differently, not because he’s a famous celebrity, but because a position he once held and was finally removed from. This one aspect, Trump’s former position, threatens to skew all other legal considerations going forward. This is unchartered legal terrain if charges are brought against him. At no time in our history has a former president been charged with a crime.
Richard Nixon came the closest to legal consequences but was saved by a sweetheart pardon deal with his successor Gerald Ford. This was to spare the republic of an ongoing spectacle of seeing Nixon - by then a former president - criminally prosecuted for his acts as president. Also to gave heft and gravitas to Ford’s declaration that our “long national nightmare” (Watergate and related acts) was over.
Today we are living another nightmare, born of the MAGA inspired fever dream that began in 2015. From his descent down the “golden escalator” to the present, Donald Trump has sought to divide us, prey on our fears of the countless “others” who were said to threaten mostly white male privilege, destroy long held democratic and legal norms, and who tried to establish an autocracy with Trump as its head autocrat.
Trump stoked the fears of millions on his quest for and retention of power. He made it permissible for racists to be openly racist. He tried to institute a false patriotism in his followers of sunshine patriots. Thankfully there were few winter soldiers in Washington on January 6, 2021.
And while this list of social, cultural, and political corruption could be easily expanded, these efforts could be explained in one simple sentence. He showed and encouraged us how to hate. He showed us it was ok to hate the “others” in our midst, that it was acceptable for us to regard those with whom we disagreed as “enemies,” and that our legal and political institutions were and are corrupt.
He held himself and was viewed by his supporters as a secular Christlike savior, not only one who would die in order that all our sins could be forgiven, but in a broader sense redeem us by ushering in a new age of “illiberal democracy” where law and order is maintained, punishment is meted out swiftly, and social stability is enforced.
In 2020, 75 million of our fellow citizens voted for this antithetical view of our country’s values and traditions. Trump corrupted one of our two major political parties. Members of that party were already predisposed to Trump’s dystopian view of America, others saw the new political regime as a vehicle to personal advancement, while others were spineless sycophants quietly avoiding the leader’s wrath.
And this dynamic directly affects what gets done in government. Nowhere is this more obvious than the nominations of judges to fill judicial vacancies. Most obvious were the three nominees who were confirmed to the Supreme Court. In this instance, the president, a majority of the senate, and the nominees themselves all shared the same world view - a restoration of a past that in reality never existed. To do that, law would need to be applied to eliminate the progress that took decades to achieve and replace it with the inequities of the past.
While much attention was focused on the high court, hundreds of judges were nominated to federal judgeships throughout the country. Their basic qualification was not their legal ability and commitment to impartially apply to law in cases at bar, but a shared commitment to a common world view.
It is in this milieu that we look at Judge Aileen Cannon’s Labor Day order. I won’t recite or litigate the motions submitted on behalf of Trump or the DOJ. If your interested you can read them in my previous Parts I-III. A quick recap: Trump sought a particularized Inventory of items seized, the appointment of a Special Master to review which items were privileged or personal, and the return of the documents. These requests were made to the court’s equitable jurisdiction.
Not surprisingly, the DOJ made a number of objections to Trump’s standing it this matter, his lack of personal interest in all but a few of the 11,000 items seized, and that the appointment of a Special Master was superfluous given that in the nearly three weeks since their seizure, “filter” teams had reviewed the documents and segregated the privileged from the classified/non-classified presidential documents. Two of the arguments were made under the court’s legal jurisdiction, and third made as a factual matter relevant to the court’s equitable jurisdiction.
Let’s clarify, perhaps too simply but useful for this discussion, the differences between the court’s legal and equitable jurisdictions. Legal simply is an application of a statute, rule, or regulation to an issue before the court. Equitable jurisdiction is a fairness principle when there is no adequate remedy at law.
In my view, which are shared by others, the DOJ had an overwhelming legal argument. So Cannon went exclusively (while inadvertently touching on the legal) with the equitable. Recall that, like a poor pitcher, she tipped her pitch, prior to any responsive pleading by DOJ, when she stated that she was “inclined” to grant Trump’s motion. Her order realizing her inclination, while in many ways shocking, was no surprise.
I’ve been wrestling with how much detail I wanted to get into, how far in the legal weeds I wanted to go. I think it best to hit on three themes: the reason she exercised equitable jurisdiction, the question of standing, and executive privilege.
Equitable Jurisdiction/Standing
The Judge writes about the unprecedented nature of the events leading to the filing of this case. She paints Trump’s interactions with the National Archives regarding the return of documents he improperly retained as “conversations.” She wrote about Trump “agreeing” to return 15 cartons to the Archives in January 2022. She omitted any mention of the classified documents contained in those cartons.
She wrote about the springtime contacts that occurred between Trump and the Archives and his return in May of items “inadvertently” omitted from the January transfer. She did not mention the document signed by a Trump attorney attesting that no other classified documents remained with Trump. That attestation did not age well in light of the over 100 classified documents Trump continued to illegally retain.
Judge Cannon glossed over the application for and issuance of the search warrant. She implied amazement that, given the ongoing “conversations” between Trump and the Archives, a warrant was sought at all! Throughout this portion of her order she essentially states - without any supporting evidence - that she hasn’t any confidence in the professionalism or the integrity of the DOJ’s ”filter” and review processes.
Stressing the unprecedented nature of this case, the Judge cites to cases where the government overstepped its authority. The problem here is that the cases offered as persuasive supports for her distrust of the government all touch on more ordinary legal issues of overstepping legal and constitutional authority to seize and retain documents. Cases involving betting slips and tax bills do not arise to the level of classified documents.
The problem here, aside from irrelevancy (admittedly a pretty big aside) is that the government’s seizure and retention of individuals’ documents was that they were, the individuals’ documents! The rightful possession of the seized documents in this matter is at the heart of Trump’s attempt to (indirectly) challenge the seizure of the documents and the government’s defense of that seizure.
An issue not addressed, and mentioned only in passing, is the relevance of the Presidential Records Act. This went to the heart of standing but rather than attempt to deal with a threshold issue, the Judge swept it into the “equitable” standing for a homeowner to challenge not just the entry to his home but also the seizure of his documents.
So just like that, the Judge snapped her fingers and Trump had an equitable standing to challenge the government’s entry to Trump’s residence, but also the seizure of presidential records and classified documents. Neither of these issues were in contention in this matter, yet the personal interest of the items seized were conferred on Trump. Presidential Records Act? We don’t need no stinking Presidential Act!
Executive Privilege
Judge Cannon donned her wellies and waded into the murky water of executive privilege. She slogs past Nixon v. U.S. and Nixon v. GSA and goes right to Trump v. Thompson. This was a case involving a subpoena ordering the submission of Trump presidential documents housed by the Archives to the January 6 Committee. After losing at the district and circuit court levels, because under precedents dating from Nixon, Trump would not have been able to exercise executive privilege if he was the sitting president. The Supreme Court upheld the circuit court court but declined to decide if Trump’s status as a now former president would have made any difference to his privilege claim.
But it isn’t like she cares about the previous decisions because she has a great quote by Justice Brett Kavanaugh. Briefly here:
“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. Concluding otherwise would eviscerate the executive privilege for Presidential communications.”
This is a great quote if she wanted to acknowledge a claim of privilege, a claim she notes in Fn. 15 was never explicitly made by Trump. She’s right as far as she went, but Trump’s crack legal team conflated attorney-client and executive privileges into one ambiguous privilege and she knows it.
By now we should know that Judge Cannon is light on details, law, and precedent, so why wouldn’t she skirt the the rest of Kavanaugh’s quote. After he wrote the above quoted passage, he wrote:
“To be clear, to say that a former President can invoke the privilege for Presidential communications that occurred during his Presidency does not mean that the privilege is absolute or cannot be overcome.”
Ummm, same case, same author, two possibly contradictory statements. Certainly the second quote at least modified the more dogmatic first quote. Just like everything else in this case, she took what she liked and disregarded the inconvenient. It was almost like she sat with Team Trump.
One more item, at the end of her dissertation about all of the above, and in the order providing a Special Master, was the order instructing the suspension of any DOJ investigation involving the seized documents or the fruits thereof. Include this in the cornucopia of “unprecedented” acts in this case. I only hope that if someone challenges a search and seizure, say of tax records (one of her cited seizure cases), that person asks for and obtains a Special Master and a cessation of all investigation emanating from those records. But don’t bet the rent money on it.
Finally, in exercise of her equitable jurisdiction, Judge Cannon stated the it was important not to just act fairly, but to be seen as acting fairly. In the milieu in which we find ourselves, this is not a surprising outcome. This is the mad hatter jumping through the looking glass, an Orwellian exercise in truth is lies and lies are fair. By holding one individual’s interest in potential reputational damage over similarly situated individuals who are subject to search and seizure or being publicly charged with a crime, Judge Cannon confirms, lest there be any doubt, that there are two systems of law: one for the rich and (in)famous and another for the rest of us.
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