3 Notes from the Latest Pro-Trump Order of Judge Eileen Cannon in Mar-a-Lago

Judge Eileen Cannon, Trump-appointed and recently known judge twist the law into knots In ways that undermine one of the Justice Department’s criminal investigations into former President Donald Trump Issue a new order This, well, turns the law into a contract.

Last month, the FBI I carried out a search warrant in Mar-a-Lago, Trump’s Florida residence, and confiscated several boxes of documents. include 103 documents with secret marksSome of them indicated that the information contained in those papers was classified at the highest levels. According to the Washington Post, these papers include “a document describing the military defenses of a foreign government, including its nuclear capabilities. “

Trump’s legal team is campaigning in Cannon Court to block the Justice Department’s ability to look into those documents. Cannon Thursday awarded Trump another victory in that campaign, although her latest order is slightly narrower than Trump’s previous courtroom victories.

The constitution provides several safeguards against unreasonable searches and seizures by law enforcement agencies. The FBI must have probable cause to justify the search for private housing, and it must obtain a warrant issued by an impartial judge.

Despite the Justice Department’s compliance with these constitutional requirements, Cannon issued an order earlier this month arguing that Trump deserves special protection rarely afforded to any criminal suspect, in large part because of “Trump.”Previous position as President of the United States. ”

Specifically, Cannon ordered the Justice Department to halt its criminal investigation into Trump until a designated court official known as “Special Mr.” reviews the seized documents.

Although Canon’s original order allowed the Department of Justice to continue a parallel national security investigation to assess the impact of Trump’s possession of these documents on national security, the Department of Justice informed Cannon in a motion made last week that These two investigations are “not easily separated,” In large part because they are made by the same individuals.

In a motion last week, the Department of Justice asked Cannon to allow it to continue its criminal investigation regarding 103 classified documents. On Thursday, Cannon formally denied that request, and appointed Raymond Deere, a senior federal judge, as that special tutor to review all of the documents seized from Trump for indications that they might be protected by attorney, client or executive privilege. Cannon also instructs Derry to begin his review of the classified documents.

The Department of Justice has already indicated that it will seek an exemption from the Federal Court of Appeals, possibly as soon as tonight. The case is called Trump against the United States.

But there are several things worth looking into with ordering a Canon first.

Canon’s new order indicates that Trump may somehow possess classified government documents

Cannon’s original order is based on the assumption that Trump made a reasonable argument that he had “The right to possess at least some confiscated property. But, as the Justice Department noted in last week’s proposal, Trump “has not done so.” He cannot assert that he owns or has any possessive interest in confidential records. “

Classified documents by definition belong to the federal government and not to a private individual – in fact, the whole point of classifying a document is to prevent that document from ever becoming in the possession of anyone the government doesn’t want to see.

Furthermore, the FBI says that some of the relevant documents have been marked as “Rated / TS / SCI“Sensitive fragmented information” – information that is normally stored in specialized facilities to prevent information from going out.

In its last ranking, Canon basically says that The FBI can’t be trusted When you claim that these documents are classified. “The Court does not consider it appropriate to accept the government’s conclusions,” Cannon writes, that “all of the approximately 100 documents isolated by the government (and “the papers actually attached to them”) are classified government records.”

Such skepticism may be the assertions of the law enforcement agency Welcome to another context. But, again, the Constitution sets out the requirements that the FBI must comply with in order to seize documents and use them in a criminal investigation – probable cause plus a warrant – and the FBI has complied with these constitutional obligations.

If Trump thinks some of these documents were illegally seized, he could Raising this argument in his criminal trial, if ever indicted, seeks to exclude the documents from that trial. In other words, he can do what every other criminal defendant is allowed to do.

But Cannon gives him additional protections that no criminal suspect enjoys, based in large part on the fact that he used to be chief.

Canon gives the DOJ a little more space, but it probably isn’t enough so they can safely utilize it

Remember, Cannon’s original order said that the FBI could continue to investigate national security into how Trump’s possession of these documents harmed the country’s intelligence interests, but that it should pause its criminal investigation. In response to the Justice Department’s argument that these two investigations are difficult to separate, Cannon essentially replies that “difficult” does not mean “impossible.”

She noted that one of the government’s filings “stated that it would be ‘extremely difficult’ to divide individuals involved in the operations described.” But it claims that the phrase “extremely difficult” is not the same as “inextricably intertwined”.

That said, Canon Latest request It contains some statements that the Department of Justice can continue some parts of its criminal investigation.

Although Cannon prohibits the Department of Justice from “submitting confiscated material to a grand jury and using the content of the documents to interview witnesses as part of a criminal investigation” — a limitation that effectively prevents the Department of Justice from indicting Trump until Cannon’s order is lifted — she writes that “To the extent that security assessments are really, in fact, inseparable from criminal investigations’ use of seized materials,” then the criminal investigation may continue.

In practice, however, it is not at all clear that the Department of Justice can take advantage of this privilege offered by Canon. Canon’s new system contains only limited descriptions of what the Department of Justice can and cannot do. It is possible that the FBI would not be willing to make its own judgments as long as it knew that a seemingly hostile judge would despise them if they disagreed with the FBI’s judgment.

Canon seems to have no idea how confidential documents work

Another line in Canon’s opinion is noteworthy. In its proposal from last week, the Department of Justice argued that “a court order would irreparably harm the government and the public by needlessly requiring the government to share highly classified material with a private master.”

The Supreme Court also ruled in Navy Division vs. Egan (1988), “For reasons.” . . It is very clear that calling for an extended discussion “,” Decisions about who should be allowed to see confidential documents must adhere to the broad discretion of the responsible agency, and this must include a broad discretion to determine who has access to them. “

But Cannon’s order effectively brings the private lord, who has no “need to know” information contained in classified documents based on national security concerns, into the community of individuals allowed to see certain top-secret documents. This puts her request at odds with Eganand ordinary practices that govern the nation’s most closely guarded secrets.

In any case, the most important consequence of Cannon’s order is that the Department of Justice is now free to seek relief from a higher court. It is likely that they will do so as quickly as their attorney can formulate the appropriate proposal.

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