September 17, 2022
“Presidents are not kings,” wrote then-Judge Ketanji Brown Jackson in a 2019 opinion. At that time, Donald Trump asserted a sweeping doctrine of executive privilege that, if accepted by a federal court, would have rendered him basically untouchable.
The former president did not learn from that opinion. After the F.B.I. raided his Mar-a-Lago compound in Palm Beach, Florida, he asserted the search was illegal, the classified government documents found at his residence were actually declassified documents belonging to him and that he did nothing wrong.
Trying to block officials from following legally mandated congressional subpoenas is bad enough, but now global security is at stake. Documents with the nuclear secrets of at least one foreign power were found, along with information about American agents posted abroad to protect and defend this great nation.
The most classified documents possible were strewn throughout Mar-a-Lago by a man who has shown that he will stop at nothing to destroy the U.S. and its democratic institutions for trifling personal gain.
Overseeing this case is a very different judge from Justice Jackson. Appointed by the former president in the waning days of his administration, Judge Aileen Cannon of the Southern District of Florida is a member of the ultra-conservative Federalist society, whose members have heavily contributed to the decline in public faith in courts.
The former president took the Justice Department to court over the search, asking the judge to appoint a special master to look over the documents, which would significantly delay the D.O.J.’s investigation into potential crimes (like maintaining an unauthorized collection of state secrets) committed by the former president.
Before the ruling was handed down, Judge Cannon voiced concerns over the “stigma” of an investigation and the “reputational harm” that the former president would supposedly suffer without a special master being appointed. This remark was troubling.
Jeffrey Robbins, a former assistant United States attorney, chief counsel for the minority of the U.S. Senate Permanent Subcommittee on Investigations and U.S. delegate to the U.N. Human Rights Council, affirmed, “The very notion that the ordinary course would cause Trump reputational damage is wholly speculative, and supported by nothing in the record.”
Bradley Moss, a lawyer specializing in national security, asserted “I have never seen mere ‘reputation damage’ used as a basis to delay a criminal proceeding involving allegedly classified information. It is a criminal investigation and documents with classification markings were found at [the former president’s] home; there is going to be reputational damage.”
Judge Cannon’s comments also sparked concerns of two parallel legal systems, with one system for most people and one carved out for the former president.
Further compounding this concern was her observation that the search of Mar-a-Lago and subsequent seizure of the documents was in a “league of its own.” Well, stealing government documents containing what should be the most closely guarded secrets in the world is also in a league of its own. So is this ruling.
Mr. Moss said, “It is difficult to say [the former president] is not getting extra breaks and privileges right now. I have never seen a judge so blithely disregard classification markings and national security warnings from an agency before, particularly when the opposing party has not provided any evidence on the record to contradict the agency’s assertions.”
Now, Judge Cannon only got the case because the former president’s lawyers filed their case in Ft. Pierce, where Judge Cannon is the only federal judge, bypassing the judge who authorized the original search warrant, Bruce Reinhart of the Southern District of Florida. Judge Cannon could have referred the case back to Judge Reinhart or recused herself owing to her appointment by the former president, but she failed to do either of these.
Does this mean Judge Cannon is biased in favor of the former president? As Mr. Robbins said, “One wants to be careful about ascribing a sharp pro-Trump disposition to any judge, but there is no shortage of elements of the various orders she has issued which support that take.”
Judge Cannon made the former president’s dreams come true on Thursday when she ruled that the D.O.J. could not resume its very time-sensitive inquiry, not even into the roughly 100 classified documents, and appointed a special master named by the former president’s lawyers and approved by the D.O.J. to see if the documents really pertain to the D.O.J.’s investigation.
“She is essentially disregarding decades of case law and providing relief unique to Mr. Trump and only to Mr. Trump,” said Mr. Moss. “Her rulings betray a bit of subject matter ignorance and naivete on this matter.”
The special master, Judge Raymond J. Dearie of the Eastern District of New York, will go through over 11,000 pages of documents, a process which Judge Cannon recommended to terminate by Nov. 30.
Both her recommendation for a speedy review and another concession that the D.O.J. could investigate the movement of the documents, without the contents of the documents themselves, were small reassurances.
Yet, nothing seems certain in this case, with the Justice Department filing a Friday appeal that would not challenge the special master (which would just make everything drag on for an even longer period). They instead challenged the most urgent part of Judge Cannon’s opinion and are trying to get the F.B.I. to be able to access the documents to continue their investigation and hopefully patch this major breach in national security.
“I expect the injunctive relief she granted will be reversed on appeal,” said Mr. Moss.
That appeal now heads to the 11th Circuit Court of Appeals in Atlanta. Though many are Trump appointees, these more experienced judges may make better choices than Judge Cannon.
Precedent is on the D.O.J.’s side. “In almost any other national security criminal inquiry, the courts virtually always defer to the needs and prerogatives of the agency, especially in a pre-indictment phase…It is unheard of for this type of pre-indictment review of allegedly classified information,” noted Mr. Moss.
Presidents, current and former, are not kings. As John Adams said, we have a government of laws, not men. It is time for that to be proven in court.
The Elbert P. Tuttle United States Court of Appeals Building and United States Courthouse in Denver, Colorado. Charles Horowitz for Policy Reform Now
By Charles Horowitz
Policy Reform Now 
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