Trump Gets A Special Master

Pending Appeal

This ruling concerned Judge Aileen Cannon’s decision to appoint a Special Master to review the materials and documents that were seized by the FBI in its Mar-a-Lago Raid on President Trump’s residence. DoJ had requested that Judge Cannon stay her own decision to appoint the Special Master pending DoJ’s appeal of her decision. In other words, DoJ was asking Cannon to hold off on appointing the Special Master while they appealed her decision to the 11th Circuit. Cannon’s response was to say, Nope, and to appoint Judge Raymond Dearie to serve as Special Master. There’s an interesting story there that we’ll get to. Overall, Judge Cannon’s opinion is a delight to read. There will be plenty of legal analysis on what is a fairly straightforward ruling, so I’ll just highlight a few aspects of the ruling.

To give you a flavor of what was involved in the ruling, here are the legal standards that apply when a request for a stay of a judicial action is requested:

In considering a motion to stay pending appeal, district courts must consider

“(1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits,

(2) whether the applicant will be irreparably injured absent a stay,

(3) whether issuance of the stay will substantially injure the other parties interested in the proceeding, and

(4) where the public interest lies.”

... “The first two factors of [this] standard are the most critical,” and “[t]he party requesting a stay bears the burden of showing that the circumstances justify an exercise of [judicial discretion to stay an injunction].” Nken, 556 U.S. at 433–34.

So, in this case, DoJ had the burden of convincing the judge to exercise her discretion. By denying DoJ’s request Cannon is saying that 1) she regards DoJ’s case against appointing a Special Master to be weak and unlikely to succeed on appeal, and that 2) DoJ will suffer no irreparable harm.

Cannon begins her discussion by forthrightly rejecting the presuppositions that the DoJ Motion rests upon:

The Motion primarily seeks a stay of the September 5 Order insofar as it temporarily enjoins, in conjunction with the Special Master’s review of the seized materials, approximately 100 documents “marked as classified (and papers physically attached to them)” ... In isolating the described documents from the larger set of seized materials, the Motion effectively asks the Court to accept the following compound premises, neither of which the Court is prepared to adopt hastily without further review by a Special Master. The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that [Trump] therefore could not possibly have a possessory interest in any of them. The second is that [Trump] has no plausible claim of privilege as to any of these documents … (categorically asserting that the “classified records at issue in this Motion . . . do not include personal records or potentially privileged communications”)]. The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion.

Implicit in this paragraph, in my opinion, is that Cannon does not fully trust DoJ. The Department of Justice is sworn to do justice, but … the judge thinks a neutral third party is a good idea. Adding to that impression is that in the next paragraph Cannon points out DoJ’s refusal to cooperate in a reasonable way with Trump’s legitimate requests for a detailed inventory of the what was seized in the FBI Raid. In that connection she notes factors that clearly go toward the issue of the Raid being overbroad and abusive:

the Government seized a high volume of materials from [Trump’s] residence on August 8, 2022 …; some of those materials undisputedly constitute personal property and/or privileged materials …; the record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials …; and there are documented instances giving rise to concerns about the Government’s ability to properly categorize and screen materials …

and, for good measure, adds:

the Court declines to conduct a subset-by-subset, piecemeal analysis of the seized property, based entirely on the Government’s representations about what is contained in a select portion of the property.

I’ll skip over the first two of Cannon’s “limited analysis on three additional areas” and proceed to the third Cannon turns DoJ’s argument that everyone should be equal before the law on its head, by explicitly rejecting the notion of “unquestioning trust” in the DoJ’s determinations:

III. Relevant Principles

Lastly, the Court agrees with the Government that “the public is best served by evenhanded adherence to established principles of civil and criminal procedure,” regardless of the personal identity of the parties involved ... It is also true, of course, that evenhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice. Based on the nature of this action, the principles of equity require the Court to consider the specific context at issue, and that consideration is inherently impacted by the position formerly held by [Trump]. The Court thus continues to endeavor to serve the public interest, the principles of civil and criminal procedure, and the principles of equity. And the Court remains firmly of the view that appointment of a special master to conduct a review of the seized materials, accompanied by a temporary injunction to avoid unwarranted use and disclosure of potentially privileged and/or personal materials, is fully consonant with the foregoing principles and with the need to ensure at least the appearance of fairness and integrity under unprecedented circumstances.

Judge Cannon doesn’t expressly accuse DoJ of riding roughshod over the principles of evenhanded procedure, but it’s a fair guess that—based on her references to the bulk seizure of personal and privileged materials in the Raid—she’s struggling to see any appearance of fairness and integrity in the procedures DoJ has followed thus far.

It’s a breath of fresh air.

Now, regarding Judge Dearie, the Special Master:

Jonathan Turley @JonathanTurley

The proposed selection of former Chief Judge Raymond Dearie as special master in the Mar-a-Lago matter has lit up the Internet due to his signing off on the Carter Page warrant. However, the FBI lawyer was convicted of falsifying a critical email as part of that application...

Jonathan Turley @JonathanTurley

...Dearie not only has experience on intelligence matters and a past clearance but he has personal experience of the Justice Department misleading a court. Given the misrepresentation, the abusive Page warrant cannot be laid at his feet.

You could say that Dearie is a judicial victim of FBI abuses. Well, actual criminality, since Kevin Clinesmith was convicted in connection with the hoax FISA applications against Carter Page.