Judge Aileen Cannon’s order suspending one of the Justice Department’s criminal investigations into former President Donald Trump, at least until a court-appointed official can review documents the FBI seized from Trump, is a trainwreck of judicial reasoning. Cannon mangles the law so completely that it’s hard to know where to even begin in criticizing her opinion in Trump v. United States.
For starters, Cannon, who was appointed to the federal bench by Trump days after he lost the 2020 election, argues fairly explicitly that Trump is entitled to special rules that apply to virtually no other criminal defendant, because he used to be a powerful person.
Seriously, Cannon argued that the rules don’t apply to Trump in large part because, as a former president, he faces “reputational harm” that is of a “decidedly different order of magnitude” than that facing another person who may be indicted.
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This opinion is an affront to anyone who believes that all Americans, whether a pauper or a former president, are subject to the same laws.
On a practical level, it could also allow Cannon or other judges to delay this criminal investigation into Trump indefinitely. Cannon’s opinion is not simply wrong, it plays with legal concepts, such as executive privilege, which she seems to barely understand. And it races to grant relief to Trump that could impose countless hurdles between the Justice Department and its ability to investigate Trump.
Indeed, just the portions of Cannon’s opinion dealing with executive privilege, which make up only a small part of the decision, are complicated and uncertain enough that they could potentially force months or even years of litigation to resolve. And, Cannon ordered the United States to halt its criminal investigation into the documents seized from Trump — something she decidedly does not have the power to do — until after the process she set up to review those documents is complete.
In the worst-case scenario for the Justice Department, in other words, Cannon may have claimed the power to delay investigation and possible prosecution of Trump for months or years. And it’s far from clear that higher courts dominated by Republican appointees will stop her.
How we got here
About a month ago, FBI agents searched Mar-a-Lago, Trump’s Florida residence, and removed several boxes of documents. Many of these documents were clearly marked as classified, some of them at high levels of classification. The Justice Department says it took these documents as part of a criminal investigation into potential violations of several statutes prohibiting authorized retention of national security documents, including the Espionage Act.
As part of its search, the Justice Department also says it took some non-classified “documents that were collectively stored or found together with documents with classification markings.” These documents were initially reviewed by a “privilege review” team, whose purpose was to identify any documents that might be protected by attorney-client privilege and screen them out so that they are not seen by criminal investigators. Additionally, if Trump is eventually indicted, and he believes that the Justice Department used any of these seized documents improperly, he could raise that point at his criminal trial and seek to have that evidence dismissed.
In virtually all criminal investigations, these procedural safeguards are considered sufficient to protect that defendant’s rights. But two weeks after the documents were seized, Trump’s team decided they weren’t enough. His legal team asked Cannon to add another level of review: appointing an official known as a “special master,” who will conduct their own review of the seized documents.
As Cannon notes, there is some precedent indicating that, in cases involving particularly egregious actions by criminal investigators, courts should impose additional safeguards. Specifically, Cannon relies on a nearly half-century old appeals court decision in Richey v. Smith (1975), which held that such extraordinary safeguards may be justified if certain factors are present. “Perhaps foremost” among these factors, the court said in Richey, is whether the government displayed “a callous disregard for the constitutional rights” of the person being investigated.
And yet, Cannon admits in her opinion that “there has not been a compelling showing of callous disregard for Plaintiff’s constitutional rights.” The fact that she nonetheless granted Trump’s request is one of the many red flags in her opinion. As noted above, Cannon believed that extraordinary relief is justified in large part because, as a former president, Trump would somehow face greater “stigma” if he is indicted than any other private citizen.
(To be clear, the Constitution does provide all citizens with a safeguard against the “stigma” of an arrest — police generally must have “probable cause” to arrest someone or to search their home. The Constitution does not say that former presidents enjoy heightened protections against searches or seizures.)
And so Cannon gave Donald Trump, the man who gave her a job as a federal judge, two forms of relief. She agreed to appoint a special master, and she prohibited the Justice Department “from further review and use of any of the materials seized from Plaintiff’s residence … for criminal investigative purposes” until the special master’s review is complete.
It’s not yet clear what this special master’s full duties will be, but Cannon strongly implies that the special master will screen the documents both for items that might be protected by attorney-client privilege and for items that might be protected by “executive privilege.”
The legal justification for this search for documents protected by executive privilege is highly dubious, and such a search could lead to considerable delay — delay that could be hugely consequential because Cannon has effectively forbidden the DOJ from using the evidence it has against Trump until the special master process plays out.
Cannon appears to have no clue what executive privilege is or how it works
The concept of “executive privilege” arises from a president’s need to receive candid advice from aides, who may be reluctant to give unpopular advice if they know that advice could become public in the future. As the Supreme Court said in United States v. Nixon (“Nixon”)(1974), one of its foundational executive privilege cases, “human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.”
A subsequent decision, Nixon v. Administrator of General Services (“GSA”) (1977) held that this privilege “survives the individual President’s tenure,” but a former president’s ability to keep information secret is much weaker than a sitting president’s, and it is especially weak when the sitting president determines that a former president’s communications should not remain secret.
Although President Joe Biden has not specifically weighed in on how executive privilege should apply to the Mar-a-Lago investigation, he previously determined that “an assertion of executive privilege is not in the national interest” with respect to Trump White House documents sought by the congressional investigation of the January 6, 2021, attack on the US Capitol. He is highly unlikely to side with Trump’s efforts to thwart a criminal investigation.
Moreover, even if Trump were able to override Biden’s judgment here, there are several other reasons why executive privilege should not apply to the FBI’s investigation into Trump’s possession of classified documents. For one thing, Nixon held that a criminal prosecution is the quintessential case where executive privilege may be breached. “The allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial,” Nixon explained, “would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.”
So, if Trump is eventually indicted, executive privilege should not bar the Justice Department from using the seized documents as evidence against him.
An even more basic reason why executive privilege should not apply to this investigation is that Trump is trying to assert executive privilege against, well, the executive. Nixon held that the concept of executive privilege is “rooted in the separation of powers under the Constitution” — that is, the separation of powers among the executive, legislative, and judicial branches.
So, if Congress or a court seeks a presidential document, that might raise executive privilege concerns. But the FBI, and the Justice Department more broadly, are part of the executive branch. And there are no separation of powers concerns raised by one part of the executive branch obtaining documents that allegedly belong to another part of the executive branch.
And then there’s the difficult task of determining which, if any, of the Mar-a-Lago documents are even arguably protected by executive privilege — a question that could potentially require months or even years of litigation to resolve.
The question of which documents are protected by executive privilege is not straightforward
Although the concept of executive privilege stretches back to the Washington administration, disputes involving this privilege are rarely litigated. As the Supreme Court said in Trump v. Mazars (2020), Congress and the White House have historically maintained a “tradition of negotiation and compromise” when the former seeks the latter’s documents.
For this reason, the Supreme Court has never fully articulated what sort of documents are and are not protected by executive privilege.
That said, the US Court of Appeals for the District of Columbia Circuit’s 1997 decision in In re: Sealed Case is probably the most robust attempt by a federal court to define the scope of this privilege. Sealed Case held that the “executive privilege” has two different forms.
The stronger form, known as the “presidential communications privilege,” applies to communications directly with the president, or communications “authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.”
Meanwhile, a weaker privilege, known as the “deliberative process privilege,” permits “the government to withhold documents and other materials that would reveal ‘advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’” But this privilege is extraordinarily weak. Indeed, it “disappears altogether when there is any reason to believe government misconduct occurred.”
Special masters are sometimes used by federal courts — albeit not very often — to screen out attorney-client privileged documents. And a special master is well suited to such a task because it is relatively easy to determine which documents might be protected by this privilege. Was the document a communication between an attorney and their client? Mark it as presumptively privileged.
But a special master is poorly suited to determine which documents might be protected by executive privilege. For starters, the DC Circuit’s decision in Sealed Case does not bind Judge Cannon, so it is unclear whether the special master should follow it or some other definition of the term “executive privilege.”
And even if we assume that the DC Circuit’s definition applies, how is a special master to determine that a particular document fits within this definition? Sealed Case held, for example, that the presidential communications privilege is “limited to communications ‘in performance of [a President’s] responsibilities,’ ‘of his office,’ and made ‘in the process of shaping policies and making decisions.’”
Now suppose that one of the documents seized by the FBI turns out to be a memo laying out how the price of gasoline in Michigan fluctuated between 2016 and 2019. Absent more evidence, how is a special master supposed to know if this document was delivered to Trump because he considered proposing some kind of price control on gasoline (and thus the document is privileged), or if Trump wanted to know the price of gas because he wanted to mention it in a campaign speech (and thus the document is not privileged because it was not produced “in the process of shaping policies and making decisions.”)
And even assuming that a special master could answer these factual questions, there are still a whole raft of legal questions that will arise. Suppose, for example, that President Biden formally declares, pursuant to his authority under GSA, that none of the documents seized at Mar-a-Lago should be subject to executive privilege. The significance of that declaration would need to be litigated, and it could need to be litigated for every single document that the special master flags as potentially subject to executive privilege.
And, again, for the entire period that these issues are being litigated, Cannon’s order suspending the criminal investigation into Trump could remain in effect — unless, of course, an appeals court steps in to block her.
DOJ can appeal Cannon’s order, but it’s not clear that will help much
Because Cannon’s opinion is so riddled with legal errors — my analysis of the opinion only scratches the surface of the many problems with this decision — the DOJ could always appeal the order and seek a higher court’s permission to resume its investigation.
But that order would appeal to the 11th Circuit, a GOP-dominated court where six of the 11 active judges were appointed by Donald Trump. In the fairly likely event that the DOJ draws a panel of Trump appointees (or other similarly ideological judges) to hear its appeal, that panel could sit on the case for months before issuing a decision that mirrors Cannon’s.
And what then, appeal to the Supreme Court, where Republican appointees enjoy a 6-3 supermajority?
In fairness, since Trump left office, the justices haven’t tripped over themselves to protect the former president. Last January, after Trump asked the Supreme Court to prevent the congressional committee investigating the January 6 attack from obtaining hundreds of pages of records from the Trump White House, the Court denied Trump’s request.
But even if this Court ultimately rules in the DOJ’s favor, such a ruling may not be handed down for years. And a significant delay could potentially allow Cannon’s order to remain in effect until well into the next presidential election cycle — or even later.
In the Mazars case, for example, the Court changed the rules governing congressional investigations of a sitting president, after House investigators sought some of Trump’s financial records. This decision ensured that these investigators would not see those records — if they ever do see them — until long after the 2020 election had already passed.
Similarly, last June the Supreme Court handed down a decision in Biden v. Texas, holding that a Trump judge in Texas egregiously misread federal immigration law when he ordered the Biden administration to reinstate a Trump-era border policy. But even though the Court eventually rejected this Trump judge’s order, it left that order in place for 10 months, effectively allowing the dead hand of the Trump administration to set border policy long after Trump was voted out of office.
Then, in July, the Supreme Court used a similar process to allow a different Trump judge to effectively override the Secretary of Homeland Security’s command and control of Immigration and Customs Enforcement (ICE). While it remains likely that the Supreme Court will eventually restore the Secretary’s lawful authority over ICE’s enforcement priorities, that decision may not come until next June.
The Supreme Court, in other words, has shown extraordinary willingness to use the judicial calendar to benefit the Republican Party. When Trump was in office, the Court often moved so quickly when Trump’s lawyers asked it to block a lower court order that Justice Sonia Sotomayor accused her colleagues of “putting a thumb on the scale in favor of” the Trump administration. But the Court shows no inclination to move quickly when a lower court judge errs in a way that benefits Republicans.
And so, Judge Cannon could effectively prevent Trump from being investigated for possibly stealing national security documents for months or even years. If the DOJ appeals her decision, the case may linger in appeals courts for a long time without resolution. But if it does not appeal, the DOJ will give up its shot to end this highly partisan judge’s supervision of one of the most sensitive criminal investigations in US history.
