Special treatment

Judge Aileen Cannon, a Federalist Society member appointed by Trump and confirmed after he lost the 2020 election, approved the former president’s request for a special master to review the documents the FBI seized from Mar-a-Lago. She also halts the use of the materials for “criminal investigative purposes” pending the special master’s review, thereby preventing the FBI from continuing its investigation of Trump.

“Plaintiff has claimed injury from the threat of future prosecution and the serious, often indelible stigma associated therewith,” Cannon wrote. “As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.”

As legal experts pointed out, Cannon thus carves out special treatment for Trump. Any indictment, of any person, will result in reputational harm. This is not reason to grant exceptions for the common man indicted for theft or fraud; it should not be reason to favor a former president.

Kurt Eichenwald: I kept an open mind. I really did. But reading Judge Cannon’s ruling left my jaw on the floor in its absurdity. Unless the federalist society wants to argue that this precedent would only apply to trump, this ruling would demolish future white collar criminal investigations…one of the most absurd things is her discussion of how an indictment in the future – something not even in play yet – would cause “reputational damage” to Trump. The argument she is making is not that an indictment would result from a criminal investigation and grand jury…but rather be act of bad faith and whim. This makes the “presumption of innocence” apply, not in court, but during an investigation before anyone has even suggested a crime has been committed.

You may recall that Trump’s team waited two weeks to file a request for a special master to sort through the seized items. The DOJ informed the court that their taint teams—agents who are not part of the prosecution and who review materials that may fall under privilege claims—had already completed its review of the seized material.

Judge Cannon forgives Trump’s delay in asking for a special master and ignores that the DOJ already segregated any privileged items:

With regard to the injury factor, the Government contends that the timing of the Motion— filed two weeks after the subject seizure occurred—“militates against a finding of irreparable harm”. The Court disagrees… While Plaintiff perhaps did not act as promptly as he could have, the two week delay does not now preclude Plaintiff from seeking or being entitled to injunctive relief.

Fill in the blanks

The judge “basically did Trump’s lawyers’ work for them, former FBI agent Asha Rangappa explained, “making arguments under the 4-part Richey test which Trump did not brief or argue.” The Richey test is used to determine if a plaintiff could bring a civil action in equity for the return of seized property.

1. Whether the government displayed a callous disregard for the movant’s constitutional rights: Judge Cannon found that the government has not shown callous disregard for Trump’s constitutional rights.
2. Whether the movant has an individual interest in and need for the seized property: Judge Cannon determined that Trump “has an interest in and need for at least a portion of” the seized materials, citing the government’s inventory of items taken from Mar-a-Lago (e.g. medical documents and correspondence related to taxes).
3. Whether the movant would be irreparably injured by denial of the return of the seized property: Judge Cannon ruled that “being deprived of potentially significant personal documents…alone creates a real harm.”
4. Whether the movant otherwise has an adequate remedy at law: Judge Cannon found that Trump “persuasively argued that there is no alternative adequate remedy at law.”

What this means

As a result, Judge Cannon ruled that a special master is required to adjudicate privilege claims. There is significant uncertainty over who could possibly fill the necessary requirements, as such a person would need Top Secret clearance, the expertise to judge both attorney-client privilege and executive privilege claims, and be acceptable to all parties.

In the meantime, Judge Cannon enjoined the investigation from continuing—a particularly outrageous move when the small number of documents potentially protected by attorney-client privilege could be handled without stopping the investigation.

The government will likely appeal Cannon’s ruling, but she—and Trump—may have already set in motion a series of delays in the case that could jeopardize the investigation. Imagine, for example, that the appellate court takes three to six months to settle the issue. The party that loses then appeals to the Supreme Court. With a Trump-friendly majority, the Supreme Court could wait months to even accept the case and then schedule oral arguments for the following term.

Essentially, there is a potential future where Trump wins enough delays to declare his candidacy for the 2024 presidential race, counting on the DOJ not to publicly “interfere” with an election by issuing an indictment.