A federal judge on Thursday appointed a special master to review documents seized from former President Donald Trump's Mar-a-Lago estate, citing alleged "media leaks" and rejecting the Justice Department's argument that Trump has no "possessory interest" over documents that are property of the government.
Trump-appointed Judge Aileen Cannon of the U.S. District Court for the Southern District of Florida appointed U.S. District Judge Raymond Dearie to review more than 11,000 documents seized by the FBI last month. Cannon wrote that she cannot accept the DOJ's argument that Trump should not have possessed classified documents until Dearie completes his review.
"The Court does not find it appropriate to accept the Government's conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion," Cannon wrote.
Cannon gave Dearie, who was appointed by Ronald Reagan, until November 30 to complete the review. Cannon wrote that she does not believe the government would "suffer an irreparable injury" to its investigation as a result of the delay but cited the threat of "leaks to the media" without offering examples of any leaks.
Cannon also rejected the DOJ's request to resume its criminal investigation into the documents but allowed the government to review documents "for purposes of intelligence classification and national security assessments."
The DOJ argued that the two reviews cannot be separated and plans to appeal the ruling.
The only matter on which Cannon sided with the DOJ was over who would pay the cost of the special master review, ordering Trump to cover the cost rather than split it 50-50 with taxpayers, as Trump's lawyers proposed.
The DOJ in a filing last week warned that the delay could cause "irreparable harm" to national security.
"In order to assess the full scope of potential harms to national security resulting from the improper retention of the classified records, the government must assess the likelihood that improperly stored classified information may have been accessed by others and compromised," the DOJ warned in the document.
The DOJ in a subsequent filing argued that Trump had no right to possess classified government documents and that Trump's attorneys had never claimed to the court that he declassified certain documents even though he has repeatedly pushed the dubious claim publicly.
"Even if Plaintiff had declassified these records, and even if he somehow had categorized them as his 'personal' records for purposes of the [Presidential Records Act]—neither of which has been shown—nothing in the PRA or any other source of law establishes a plausible claim of privilege or any other justification for an injunction restricting the government's review and use of records at the center of an ongoing criminal and national security investigation," the DOJ said.
Cannon in her order cited "ongoing factual and legal disputes" over the documents as a reason to order a third-party review, drawing pushback from legal experts.
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"Judge Cannon's denial is predicated on this untruth: 'ongoing factual and legal disputes,'" wrote Ryan Goodman, a law professor at NYU School of Law. "What factual dispute? Trump never asserted he declassified the docs. Trump never asserted he made records personal. What legal dispute? Trump conceded the executive privilege argument."
Former federal prosecutor Andrew Weissmann called Cannon a "partisan hack" and described the ruling as a "profoundly partisan piece of work."
"She says it is 'disputed' that the documents are classified, but Trump never said in court he declassified them and submitted NO evidence, so the only evidence before her is that they are and are so marked. She really is totally in the tank here," Weissmann tweeted.
Harvard Law professor Laurence Tribe called out a portion of Cannon's ruling in which she cites the "position formerly held by the plaintiff" as a factor in her decision.
"Cannon is openly trashing the principle that all are equal before the law. Not in her court, they're not!" he wrote on Twitter.
"This is not just disagreeing with Cannon on a law point; this is a fundamental violation of her oath of office and distortion of the rule of law," Weissmann agreed.
Former Solicitor General Neal Katyal called Cannon's intervention a "terrible, terrible abuse of our legal system."
"It was also entirely unnecessary," he told MSNBC. "The Justice Department gave this judge an opportunity to walk back her nutso earlier opinion and instead she chose to dig her heels in."
Conservative attorney George Conway, a prominent Trump critic, told CNN that the ruling is "absolutely a disgrace."
"I don't think it's going to take very much to overturn it," he said. "Bill Barr last week told the New York Times that the original motion by Donald Trump's lawyers was a 'crock of shit.' This opinion is worse than that."
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