The Never Ending Story

In case you had a normal, enjoyable long weekend, you may have missed the ruling yesterday from U.S. Judge Aileen Cannon of the Southern District of Florida. In her order, she decreed that a Special Master (or impartial reader) must review the roughly 11,000 stolen government documents legally seized by the FBI from Donald J. Trump’s club at Mar-a-Lago. Nearly every law professor, former prosecutor, and legal analyst considers the judge’s intervention in an ongoing criminal and national security investigation to be “unprecedented.” Many also think that it violates the separation of powers delineated in the Constitution.

This may be grounds for the Department of Justice (DOJ) to appeal her court order.

As I understand it, she went beyond the usual procedure for a Special Master when she included issues of executive privilege. In what to some of us may seem is double think, since the DOJ, FBI and National Archives and Records Administration (NARA) are all part of the Executive Branch, there is no executive privilege to protect documents from the Executive Branch when it is the Executive Branch that wants them. Furthermore, Judge Cannon indicated that the use of executive privilege was not settled law. In other words, the previous court cases that said that executive privilege does not extend to former members of the Executive Branch, including former presidents, is wrong. This would include the 7-2 Supreme Court decision in 1977 that a former president does not have unrestricted use of government documents after leaving office. The case is Nixon v General Services Administration and had to do with the Constitutionality of the Presidential Recordings and Materials Preservation Act passed in the wake of the Watergate revelations. The law is Constitutional according to the Supreme Court.

In her order (Donald J. Trump v United States of America, Case No. 22-81294-CIV-CANNON), among other notable exceptions to precedent, Judge Cannon (appointed to the bench after Trump lost the 2020 election and rammed through by then Majority Leader Mitch McConnell), said in her order that those decisions do “not negate a former President’s ability to raise the privilege as an initial matter.” Since the FBI assumed that executive privilege did not apply (because it didn’t), they did not screen for it, according to the judge, and therefore, among other reasons, the Special Master is needed.

Furthermore, the judge argues that because Trump is a former President of the United States, he deserves special treatment. He would be impacted by the “stigma” of the legal seizure and he could suffer from “reputational harm.” In other words, we are not all equal under the law. Trump is special and should be so treated. She argues that one must be “mindful of the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented.”

Let that sink in for a moment. Judge Cannon is basically arguing that because Trump and his MAGA supporters are raising such a fuss about the FBI carrying out the legally obtained search warrant, that she must appease them. This past weekend Trump spoke at a campaign rally and said, “The FBI and the Justice Department have become vicious monsters, controlled by radical left scoundrels, lawyers and the media, who tell them what to do!” (FBI Director Christopher Wray was appointed by Trump.) None of the MAGA crowd will be appeased by anything short of a coup to put Trump back in power. Judge Cannon is either a part of, or falling for, the scam that everything happening to Trump is unfair and only happens because the “radical left” hates him and causes all of his problems. It is a closed propaganda loop that reinforces itself over and over again. Not one thing that goes against Trump will be seen as fair or correct under the law.

In fact, it gets worse. Trump golf caddy and former-person-with-a-spine Senator Lindsey Graham proclaimed a week ago that if Trump is indicted for stealing the nation’s most highly guarded secrets that “there will be riots in the streets.” Not that he was afraid that there might be riots or that people may think that but they shouldn’t do it. No. “There will be.” Mob lingo for “it’s a nice little country you have there. It would be a shame if something happened to it.” Of course Trump trumpeted that statement on his financially broke social media forum. They know exactly what they are doing by threatening violence if they are held accountable. Such statements are particularly reprehensible in the context of Trump having used inflammatory language that lead to the assault on the Capital on January 6, 2020. Shameful.

The bottom line on the Special Master ruling is that as per his usual tactics, Trump will continue to delay, deny and then delay some more. Expect that there will protests over the selection of the Special Master, the decisions made by that person, and every imaginable thing that can be appealed. Many of those issues may end up with the Supreme Court. The point is that it will be months, if not years, before the items seized in August will again be turned back to the DOJ, FBI, or NARA.

We learn again and again and again that Trump has no regard for anything that does not enrich him or empower him. He simply acts as though the rules do not apply to him. Yesterday, a federal judge agreed. They don’t.

Think about it. The President. Of. The. United. States. stole government secrets and kept them in his club in Florida without anyone having any clear idea as to why, who has seen them or even if all of the documents have yet been recovered by national security officials. Are there some at his golf club in Bedminster N.J.? In Trump Tower? Did he sell them? Give them away? Clearly Trump had no understanding of national security, how information is obtained, the damage it can do, or that he has exposed every one of us to grave risk. He just doesn’t care. In a recent interview, Sue Gordon the recently retired Deputy Director of National Intelligence, calmly and clearly explained that this could be the biggest blow to U.S. national security ever. It could do irreparable harm to our interests and those of our friends and allies around the world.

I for one am exhausted by the never ending story. There is hope. The judge’s order does not cover the material obtained by NARA in January or the material turned over in June. (At that time a signed statement under oath said that was the last of the documents. One more of the tens of thousands of lies associated with Trump in the past six years.) It does not impact the work of the House Committee investigating the attempted coup and attack on the Capital. It does not impact the grand jury now known to be investigating that same attack. It does not impact the grand jury investigation in Georgia looking into Trump’s attempt to change the vote totals there in 2020. It does not impact the investigation underway in New York looking into the shady practices of Trump, Inc. (For which his CFO already pleaded guilty.) And that’s just the tip of the iceberg regarding Trump’s illegal activities.

So why is there not one indictment? From just what we know publicly about the classified documents it is unbelievable to me that no indictment has yet been handed down. Surely, the DOJ knows even more and that there is plenty of evidence with or without the documents seized in August.

In my mind, there are only two explanations. Either they will not prosecute him or there are bigger fish to fry than just stealing classified documents. They could be building a much larger case, especially if they have evidence as to what Trump did with that information. Personally, I think that the attempted coup and fomenting an insurrection are the crimes that should bring him to justice. That case may take longer because it is more nuanced and requires more hard evidence of Trump’s direct involvement in planning the coup with the intent to overthrow an election.

Whatever the case, get on with it already!

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