U.S. District Judge for the Southern District of Florida Aileen Cannon denied a bid from the DOJ to keep using classified records seized from Mar-a-Lago last month for investigative purposes.
It’s the second stunning ruling that Cannon has issued in a civil case that Trump brought against the Justice Department, seeking the intervention of a district judge in an ongoing criminal investigation.
Cannon has assented to Trump’s request in both instances. The DOJ said last week that it would appeal Cannon’s ruling if she did not rule by Thursday, Sept. 15, or if she ruled against the Department’s request to stay her earlier ruling.
Cannon also appointed Judge Raymond Dearie as a special master to sort through records obtained by the Justice Department in the Mar-a-Lago raid.
In her first ruling, Cannon broke with nearly every other federal judge by suspending the DOJ’s investigation, as it pertains to the documents taken from Mar-a-Lago. Prosecutors asked her to halt the ruling as it applied to classified documents – around 100 items of the records taken.
But Cannon wrote that the DOJ was asking her to adopt its premises “hastily without further review by a Special Master.
Trump has claimed that, as a former President, some of the records may be covered by Executive Privilege. Nobody has made an assertion of Executive Privilege, neither current President Biden, nor former President Trump.
But Cannon ruled on Thursday that she was unwilling to accept the DOJ’s “premise” that none of the records were likely to be protected by the privilege.
“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,” she wrote.
Cannon found that the same logic applied to the DOJ’s statement that the 100 records in question were classified. Trump did not claim in his filings to have declassified any of the records at issue.
The issues of whether the records were classified and whether anyone had asserted Executive Privilege over them may remain uncontested in the docket, but in Cannon’s ruling, they’re the subject of furious contention.
“In many respects, the Government’s position thus presupposes the content, designation,
and associated interests in materials under its control,” she wrote. “Yet, as the parties’ competing filings reveal, there are disputes as to the proper designation of the seized materials, the legal implications flowing from those designations, and the intersecting bodies of law permeating those designations.”
Prosecutors had written in earlier filings that they were unclear on what the implications of Cannon’s order were: could they use the classified records to brief congressional leaders? Or reference them in interviews with witnesses in the case?
Cannon wrote that prosecutors could not discuss the contents of the materials with witnesses, or bring charges before a grand jury based on their contents. They can, per Cannon’s ruling, discuss the contents of the records with members of Congress.
She found, however, that the harm from halting the criminal investigation and potentially slowing down the intelligence assessment would not be serious.
“There has been no actual suggestion by the Government of any identifiable emergency or imminent disclosure of classified information arising from Plaintiff’s allegedly unlawful retention of the seized property,” Cannon wrote, before suggesting that DOJ had leaked information about the classified records to the press after the searches.
Apart from everything else, Cannon offended the most people in her first ruling by suggesting at one point that Trump, as a former President, deserved special treatment because of his heightened reputation.
It was a shocking statement from a federal judge, and directly contradicted the principles of equality before the law that undergird the American justice system.
Cannon addressed that directly at the end of her Thursday ruling, but did not repudiate it.
Instead, she suggested that Trump was receiving unfair treatment because of who he is.
“Lastly, the Court agrees with the Government that ‘the public is best served by evenhanded adherence to established principles of civil and criminal procedure,’ regardless of the personal identity of the parties involved,” she wrote. “It is also true, of course, that evenhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice.”
She added that, as a judge, she needed to “consider the specific context at issue, and that consideration is inherently impacted by the position formerly held by Plaintiff.”
Read the order here: