Last month, the FBI executed a search warrant at Mar-a-Lago, Trump’s Florida residence, and seized several boxes of documents. They include 103 documents with classified markings, some of which indicate that the information contained in these documents is classified at the highest levels. According to the Washington Post, these documents include “a document outlining a foreign government’s military defenses, including its nuclear capabilities.”
Trump’s legal team is campaigning in Cannon’s court to block the Justice Department’s ability to review those documents. Cannon on Thursday gave Trump another victory in that campaign, though her latest order slightly curtails one of Trump’s earlier courtroom victories.
The Constitution provides many safeguards against unreasonable searches and seizures by law enforcement. The FBI must have probable cause to warrant a search of a private residence and must obtain a warrant issued by a neutral judge.
Although the Justice Department complied with those constitutional requirements, Cannon issued an order earlier this month arguing that Trump is entitled to special protections rarely afforded to any suspected criminal, in large part because of Trump’s “former position as President of the United States ».
Specifically, Cannon ordered the Justice Department to halt its criminal investigation of Trump until a court-appointed official known as a “special master” reviews the seized documents.
Although Cannon’s original order allowed the DOJ to pursue a parallel national security investigation assessing how Trump’s possession of those documents might have harmed national security, the DOJ informed Cannon in a motion filed last week that they the two investigations “cannot be easily separated”, largely because they are conducted by the same staff.
In last week’s move, the DOJ asked Cannon to allow its criminal investigation into the 103 classified documents to continue. On Thursday, Cannon formally rejected that request and appointed Raymond Dearie, a senior federal judge, as a special master to review all documents seized from Trump for indications they may be protected by attorney-client or executive privilege. Cannon also instructs Dearie to begin his review of classified documents.
The DOJ has already indicated it will seek relief from a federal appeals court, possibly as soon as tonight. The case is called Trump v. United States.
But there’s a lot worth digging into first with Cannon’s order.
Cannon’s new order suggests that Trump could somehow be in possession of classified government documents
Cannon’s original order is based on the proposition that Trump has argued that he has a “right to own at least some of the seized property.” But as the Justice Department noted in last week’s motion, Trump “does not claim and cannot claim to own or have any vested interest in classified records.” Classified documents by definition belong to the federal government, not a private individual — indeed, the whole point of classifying a document is to prevent that document from falling into the possession of anyone the government does not want to see it. In addition, the FBI says some of the relevant documents are marked “classified/TS/SCI,” a designation that refers to “compartment sensitive information” — information typically stored in specialized facilities to prevent the information from being passed on. In her recent order, Cannon is essentially saying that the FBI can’t be trusted when it claims these documents are classified. “The Court does not see fit to accept the government’s conclusion,” Cannon writes, that “all of the approximately 100 documents seized by the government (and “the documents physically attached to them”) are classified government records.” Such skepticism about the claims of a law enforcement agency may be welcome in another context. But, again, the Constitution sets forth the requirements the FBI must comply with in order to seize documents and use them in a criminal investigation—probable cause plus a warrant—and the FBI complied with those constitutional obligations. If Trump believes some of these documents were illegally seized from him, he can make that argument at his criminal trial, if he is ever indicted, and seek to have the documents excluded from that trial. He could do, in other words, what any other defendant is allowed to do. But Cannon gives him additional protections that virtually no suspected criminal enjoys, based largely on the fact that he was president.
Cannon gives the DOJ a little more leeway, but probably not enough for them to use safely
Recall that Cannon’s original order said the FBI could continue its national security investigation into how Trump’s possession of these documents may have harmed the nation’s intelligence interests, but that it must stop his criminal investigation. In response to the Justice Department’s argument that these two investigations are difficult to separate, Cannon essentially responds that “difficult” does not mean “impossible.” One of the government’s records, he notes, “states that it would be ‘excessively difficult’ to split the personnel involved in the described procedures.” But “excessively difficult,” he claims, is not the same thing as “inextricably intertwined.” That said, Cannon’s latest order contains some language that suggests the DOJ may continue certain parts of its criminal investigation. Although Cannon prohibits the Justice Department from “introducing the seized material to a subpoena and using the contents of the documents to conduct witness interviews as part of a criminal investigation” — a restriction that effectively precludes the DOJ from indicting Trump until until Cannon’s order is lifted – He does write that “to the extent Security Assessments are, in fact, integral to the criminal investigative use of the seized materials,” then the criminal investigation can continue. In practice, however, it is far from clear that the DOJ can benefit from this Cannon concession. Cannon’s new order contains limited descriptions of what the DOJ can and cannot do. And it’s possible that the FBI is reluctant to make its own judgments, knowing that a seemingly hostile judge might hold them in contempt if he disagrees with the FBI’s judgment.
Cannon seems to have no idea how classified documents work
Another line in Cannon’s opinion is worth noting. In its motion last week, the Justice Department argued that “the Court’s order would irreparably harm the government and the public by unnecessarily requiring the government to share high-threat materials with a special master.” As the Supreme Court held in Department of the Navy v. Egan (1988), “For reasons . . . too obvious to require extended discussion,” decisions about who should be allowed to see classified documents “must be committed to the broad discretion of the appropriate agency, and that must include broad discretion in determining who may has access to them.” But Cannon’s order effectively brings the special master, who does not have a “need to know” information in the classified documents based on national security concerns, into the community of people allowed to see certain highly classified documents. This goes against Egan and the usual practices governing the nation’s most closely guarded secrets. In any case, the most important effect of Cannon’s order is that the DOJ is now free to seek relief from a higher court. It is likely that they will do so as quickly as their lawyers can draft the appropriate motion.
