On Labor Day, September 5, 2022, federal judge Aileen Cannon granted Trump’s request for a special master to review the 11,000 documents seized by the FBI from Mar-a-Lago on August 8, 2022, pursuant to a search warrant authorized by a federal magistrate.
She did not, however, give him everything he wanted when she wrote, “(T)he Court agrees with the Government … there has not been a compelling showing of callous disregard for Plaintiff’s constitutional rights.” (See story here.)
Cannon (bio here) graduated from Duke and the University of Michigan law school, where she was a top student, which landed her a clerkship with a federal appellate judge. She then worked for a major law firm before becoming a federal prosecutor. This is a very respectable resume.
She’s also a member of the Federalist Society, an ideology-based lawyers’ group that advocates “a textualist and originalist interpretation of the U.S. Constitution” (details here), a viewpoint disfavored by the majority of legal scholars and outside the mainstream of American constitutional law.
Trump, hoping to change that, drew on Federalist Society members for many of his judicial appointments. He nominated Cannon to for a retirement vacancy in the U.S. district court in south Florida, and she took office 10 days after the 2020 election. I’m curious why such a high-profile and sensitive case would be assigned to the newest and least experienced judge on a given court.
In any case, Judge Cannon’s order (read it here) has been widely panned on its merits. Multiple legal commentators criticized it in a Raw Story article (here), legal experts told NBC News it’s an “unworkable mess” (story here), and Trump’s own attorney general, William Barr, called it “deeply flawed” (reported here; another source says here he called it “a crock of shit.”). A commenter on HorsesAss.org, a Seattle-based liberal blog, went into more detail here (comment #112):
“The basis for relief is the presentation of irreparable injury to the privilege interests claimed by Trump in allowing the DOJ to continue their review (largely moot since the review is largely done). Cannon finds no adequate remedy available at law for any injury to Trump’s claimed privilege if the review is allowed to continue. That’s incorrect. Assuming the set of facts most favorable to the moving party, as is required of the court, whatever ‘executive’ privilege Trump may be assumed to retain over documents recovered in the search is not at risk of irreparable injury. If he is the rightful owner of any document retained for review by DOJ he can sue in federal court to get such a document back. A remedy is therefor available at law.
“If Trump is not the rightful owner of any document, and the document is retained in accordance with the PRA and NARA disclosure laws, then he suffers no injury. If there is no injury, then he is not entitled to any remedy.
“And if any so-called ‘privileged’ material is used as evidence in any way as the basis for a criminal indictment against him he can move for that evidence to be excluded and for the indictment to be dismissed. A remedy at law is therefor available.”
To clarify that explanation, I posted (at comment #117) this:
“In the U.S. there are two kinds of courts: Courts of law, and courts of equity. They coexist side-by-side in the same court and judge. For example, a Washington superior court can exercise both law and equity jurisdiction. The general rule is that equitable remedies can be applied only if there is no adequate remedy at law. An example of this is an injunction, which is an equitable remedy. An injunction may be issued to prevent an irreparable harm, such as a Forest Service permit to log an old-growth forest on public lands. A conservation group interested in preserving the forest has no remedy once the trees are gone.”
Then I added, “The district judge in this case … is presumed to decide matters before her impartially according to the law. It is further presumed that if she is mistaken as to the law, a higher correct will correct her.” That wasn’t entirely tongue-in-cheek. A judge, even when wrong about the law, is entitled to the benefit of doubt as to his or her integrity until actually shown to be biased or corrupt.
Therefore, I’m somewhat surprised that Elie Mystal Jr., a Harvard Law alumnus, and therefore a very well educated lawyer, accused Cannon of “bias and corruption.” (Even less charitably, if that’s possible, an MSNBC commentator snarked that Judge Cannon “publicly applied for the job of Supreme Court justice, in writing, yesterday, in [her] 24-page opinion,” see story here.)
Although Mystal writes for The Nation, a progressive magazine, he made this accusation on a TV show, not in an article. He offered no real explanation, nor any evidence, to back up his accusation. Instead, he ranted that “Trump judges do not believe in the rule of law, in precedent, in facts, in logic; they just believe in whatever’s going to help Donald Trump. … So when I say you can’t trust Trump judges, I don’t know what evidence you need for that fact.” (Read story and watch video here.)
Well, I do need evidence. And it exists. Of the dozens of baseless election lawsuits filed by Trump and his campaign, many were dismissed by Trump-appointed judges.
The courts proved a bulwark against Trump’s assault on democracy, and Trump judges were a vital part of that resistance. None of them departed from the rule of law, and Trump and his co-conspirators, along with Capitol rioters, have suffered one defeat after another in the courts. Judge Cannon’s ruling is rare, almost unique, legal victory for Trump, which may help explain why it provokes Mystal’s suspicion. But suspicion isn’t proof of bias or corruption.
I would add this: The Federalist Society lawyers appointed to the bench by Trump may have an ideological bias, but that didn’t come from Trump, and their rulings reflecting that bias are intended by them to implement that ideology, not help Trump. And it’s not like other judges don’t have ideological leanings.
I’m sorry if Mystal doesn’t like Federalist ideology (I don’t either), but that doesn’t make Federalist Society judges “corrupt.” Presidents get to appoint judges they agree with, subject to Senate confirmation, but history also shows that federal judges are remarkably independent. (Eisenhower famously said he made two mistakes as president and “they’re both on the Supreme Court.”)
Parenthetically, Bruce Reinhart, the federal magistrate who approved the search warrant, like Cannon is a former federal prosecutor; and he, too, has what you might call “biases.” He donated to Obama’s campaign (and also Jeb Bush’s), and was sharply critical of Trump in a 2017 blog post (see details here). But that doesn’t mean he wasn’t impartial, or biased against Trump, when he reviewed the search warrant application, any more than Judge Cannon’s special master ruling in Trump’s favor means she’s trying to help him. She’s entitled to a presumption that she’s trying to follow the law.
In general, though, legal experts agree the search warrant “hangs together” far better than Judge Cannon’s order. (This is a term law professors, law students, and lawyers use to describe how well a legal argument or ruling withstands scrutiny on its merits.) And it’s fundamental that legal rulings should be judged on their contents, not by who wrote them. When you evaluate a mathematical equation, you care about whether it’s right, not who the mathematician is. Same here.
Judge Cannon’s order can be appealed and overturned if she’s wrong. I don’t see evidence she’s biased or corrupt. It’s unprofessional for a practicing lawyer to say that about a judge because he disagrees with a ruling. In this case, a rookie judge possibly made a bad ruling by mistake.
But Mystal wasn’t speaking as a lawyer. He made a political speech to a general audience, and told them what they wanted to hear, which rightwing media does all the time. It sounded like he was venting his spleen, too. It’s within the bounds of free speech and fair comment; harsh, yes, but not censorious in that context.
But I wouldn’t have said that.
Related story: The FBI recovered documents so restricted that “some of the Biden administration’s most senior national security officials were not authorized to review” them, including one describing an unidentified foreign government’s nuclear capabilities (see story here).
Update: On October 3, 2022, a St. Louis newspaper accused Judge Cannon of “carrying Trump’s water,” and called for her recusal or removal. Read their editorial here. And on October 18, 2022, the Daily Beast described here the highly unusual way she got the case.