Thursday’s 10-page opinion by U.S. District Court Judge Aileen Cannon denying the government’s motion to stay the Mar-a-Lago documents case was dismissed by commentators in terms usually reserved for grotesque violations of of justice, such as the famous Dred Scott Supreme Court decision. Respected and generally sober legal analysts called it an atrocity, “legally and practically incoherent”, “dangerous rubbish” and declared Cannon “partisan hacking”. “No honest and competent legal analyst could have ruled as she did,” Harvard Law’s Laurence clan tweeted. Could opinion really be that bad? In a word, yes. The opinion’s fundamental flaws go far beyond the pressure of law and stretching the facts in favor of Donald Trump. The decision is based on the most basic abdication of judicial responsibility and represents a complete departure from the fundamental principle of separation of powers. Cannon actually got a graceful comeback from her also widely misrepresented opinion last week, in which she ruled that a special master should review the government documents seized at Mar-a-Lago. The Justice Department requested a modest stay that extends to only 100 pages of classified material found at the beach resort. It is beyond dispute that such documents are off limits to a private individual like the former president. Trump’s lawyers have not sought to challenge that principle. Rather they argued, oddly enough, that just because the government said the documents were classified, they weren’t necessarily so. This, of course, is spectacular nonsense. The very concept of classified documents is that the executive branch has made a decision about their content and designated them as classified. But Cannon took Trump’s approach to Alice in Wonderland. She concluded that it would not be “appropriate” – the closest to legal reasoning in her opinion – “to accept the government’s conclusion on these important and disputed issues without further review by a neutral third party”, i.e. a special master . The story continues Cannon, in effect, is recasting the classification process as merely a temporary executive order subject to reversal by individual judges like herself. Beyond its legal bankruptcy, such a process would impinge on issues of national intelligence, which turn on the very characterizations set aside by Cannon. The Trump team’s next game, which the judge also adopted, was even more logically and legally untenable. The former president has repeatedly claimed publicly that he declassified the documents. But his lawyers studiously avoided saying that in court documents, where lying carries professional and criminal penalties. Trump’s depositions suggest only that he may have declassified the documents. The appropriate response for a judge in these circumstances is to put Trump on the stand and ask him, “Did you or didn’t you?” Otherwise, “perhaps” means that the point has not been proven and the argument is lost. But Cannon either doesn’t know or doesn’t care what judges do in such a situation. It’s important to emphasize that she’s not just leaning in Trump’s direction, she’s coming down on him. Judges sit to resolve disputes, based on evidence. Trump’s team offered nothing on his positions, relying instead on only the most speculative arguments. It is fundamental to the adversarial justice system that evidence and law, not guesswork, determine outcomes. Nothing in the Trump team’s records warrants freezing a criminal justice investigation and review of national intelligence. And that’s another flaw in Cannon’s opinion. The Justice Department filed an affidavit explaining in specific terms why the national intelligence review of the Mar-a-Lago documents cannot proceed if the criminal investigation is dropped. Cannon simply dismissed it – again, no contradictory evidence was provided – and reiterated her view that the review of national intelligence could move on. This decision was based on complete ignorance of executive practice and a rank arrogance about the executive. Finally, and tragically, Cannon stated that its decision was “inherently influenced by the position officially held by the claimant”. In other words, her promise to give equal justice under the law has an exception for the president who appointed her. It could not be clearer that the omissions here represent rank deviations from the very function of the federal judge — to resolve disputes on the facts and to respect the role of the coordinating branches. And that doesn’t even touch the devastation caused by the appointment of a special master in this case, in which executive privilege must be evaluated by the special master, despite settled law that says the former president has no such claim to the documents. who filed and hidden. The Department of Justice will appeal. Many observers have noted that the court above Cannon has a majority of conservative members, and that is both true and dangerous. However, the flaws in the opinion go beyond conservative versus liberal judicial philosophy. Only if appellate judges are willing, as Cannon was, to relinquish their primary role as judicial officers can this incoherent opinion stand. If that happens – which I don’t expect – we will be truly lost. @HarryLitman This story originally appeared in the Los Angeles Times.
