Judge Aileen Cannon Thinks 64 Tax and Medical Records No Investigator Has Read are More Important than 11,282 Stolen Government Documents

I’ll have a lot to say about Judge Aileen Cannon’s outrageous order enjoining the government from conducting a criminal investigation into violations of the Espionage Act. I want to start with the way that she has chosen to risk Donald Trump’s attorney-client privilege in order to vindicate it.

Cannon didn’t just order a Special Master be imposed to review a subset of 520-pages of material set aside as potentially privileged (something that would be unexceptional, but something that would actually give Trump’s lawyers less involvement than the filter team was preparing to give his lawyers last week, when they wanted to hand these documents over directly to Trump’s lawyers).

Those amount to 64 sets of documents out of the 11282 seized on August 8 — less than 4.6% of the seized documents (and likely close to .5%).

She said that because the filter team worked better than mandated by the warrant, it was proof the filter team wasn’t working, and so a Special Master would have to go over everything again.

To begin, the Government’s argument assumes that the Privilege Review Team’s initial screening for potentially privileged material was sufficient, yet there is evidence from which to call that premise into question here. See In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, 11 F.4th at 1249–51; see also Abbell, 914 F. Supp. at 520 (appointing a special master even after the government’s taint attorney already had reviewed the seized material). As reflected in the Privilege Review Team’s Report, the Investigative Team already has been exposed to potentially privileged material. Without delving into specifics, the Privilege Review Team’s Report references at least two instances in which members of the Investigative Team were exposed to material that was then delivered to the Privilege Review Team and, following another review, designated as potentially privileged material [ECF No. 40 p. 6]. Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process.13

13 In explaining these incidents at the hearing, counsel from the Privilege Review Team characterized them as examples of the filter process working. The Court is not so sure. These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material. The Government’s other explanation—that these instances were the result of adopting an overinclusive view of potentially privileged material out of an abundance of caution—does not satisfy the Court either. Even accepting the Government’s untested premise, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the Investigative Team. Perhaps most concerning, the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team [see ECF No. 40]. In sum, without drawing inferences, there is a basis on this record to question how materials passed through the screening process, further underscoring the importance of procedural safeguards and an additional layer of review. See, e.g., In re Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006) (“In United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), for instance, the government’s taint team missed a document obviously protected by attorney-client privilege, by turning over tapes of attorney-client conversations to members of the investigating team. This Noriega incident points to an obvious flaw in the taint team procedure: the government’s fox is left in charge of the appellants’ henhouse, and may err by neglect or malice, as well as by honest differences of opinion.”).

What happened, we can tell from context and the available inventory, is that after an initial privilege review released material to the investigative team, the investigative team found two individual documents seized from the storage room that might be privileged, and then turned them over to the filter team. That complies, to a T, to the requirements of the law and the warrant (which only required the filter team review stuff from Trump’s office). This is what happens in every single criminal case in the US. But Cannon deemed it as proof of failure, and so used it to require a Special Master review everything anew.

According to her ruling, the government must halt their criminal investigation into 103 stolen government documents with classification marks, 11,179 stolen government documents that lack classification marks, and 1,673 press clippings (she gets these numbers wrong in her order), because 64 sets of documents that the investigative team has not seen yet includes potentially privileged information as well as, “medical documents, correspondence related to taxes, and accounting information” — details that she chose to make public for the first time even while premising the primary grave damage to Trump as leaks to the public.

She won’t let DOJ investigate a crime. But she will let the Office of Director of National Intelligence investigate the damage the crime did.

[T]he Court determines that a temporary injunction on the Government’s use of the seized materials for investigative purposes—but not ODNI’s national security assessment—is appropriate and equitable to uphold the value of the special master review.17

She doesn’t explain how that would work — how the government would (among other things) investigate any damage done by letting uncleared people move these boxes around — without continuing the investigation.

Edelstein: And in addition to the criminal investigation which is obviously a legitimate interest, as the Supreme Court has recognized, there is also the ongoing damage assessment by the intelligence community. This is not an effort that we just undertook. In fact, in that same May 10th letter that I referenced, there is an April communication to Plaintiff’s counsel that emphasizes that the materials had to be reviewed by the FBI in part so that it could coordinate an assessment of the damage that could have resulted from the improper storage of these materials. And if a special master was appointed at this point, that would — and the Government was not able to continue —

THE COURT: So would your position change, for example, if the special master were permitted to proceed without affecting the ODNI’s ongoing review for intelligence purposes but pausing temporarily any use of the documents in criminal investigation? So what I’m saying is no effect on the DNI review, which is ongoing and has been asserted as necessary for national security but then providing a temporary period of time, like I said, for orderly review of the documents seized?

MS. EDELSTEIN: It would not change.

[snip]

BRATT: And I will tell the Court, you know, how it does slow down because in addition to the damage assessment that ODNI is doing, in any retention case, as we call these types of cases, in any illegal retention case under the Espionage Act, we also start looking at, all right, are these documents still classified? So there is a classification review. Classification is different from national defense information under the case law, okay. So even if it is classified, does it contain national defense information even if it is not classified? Does it not contain national defense information? As the Court is aware, we are dealing with over 300 records here. That process has begun. That process needs to continue.

If the Court says only ODNI can look at this for purposes of damage assessment, that is going to interfere with the investigation, and that’s something the Court, I think, has to enjoin us from doing.

Importantly, ODNI cannot do a damage assessment of all the documents stolen by Trump.

That’s because at least three of the classified documents are in the potentially privileged batch. Two are in box 4.

One — a Top Secret document — is in box 29.

The top Espionage experts in the government are investigating this. They will need to be part of any damage assessment. But by taking part in that discussion, they risk tainting the entire investigation because Aileen Cannon thinks that Trump’s privacy interest in a few MAGA hats and tax records his lawyers could have gotten back last week are more important than the 103 classified documents Trump stole.

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144 replies
  1. P J Evans says:

    How is she even a judge, if she can’t reason any better than she is in this mess? (I know; don’t answer.) This would get other judges disciplined.

    • earlofhuntingdon says:

      I’m pretty sure Aileen Cannon can reason just fine, and that she knows the law better than this crap order suggests. What’s wrong is that her order is a straight up political statement in favor of Donald Trump and the FedSoc that brought her to this dance.

      • Ravenclaw says:

        Yes. There are a number of judges paired with Magistrate Reinhart in the West Palm Beach venue. The T***P lawyers selected this one. They may not be very good at arguing law, but they (and she) understand the principle that you dance with the one that brung you.

      • Raven Eye says:

        So she has the brains, the education, and some job history that makes for a pretty good CV.

        With this latest, it looks like an obvious play. Is she counting on FPOTUS becoming POTUS again, and out of that, an even bigger gig for her?

        • bbleh says:

          As opined previously, this turned on the balance between her loyalty to the law and her current position and her loyalty to her career in the larger right-wing ecosphere. It now seems apparent which was the weightier.

      • Legonaut says:

        “Well, [Reason] was a kind of back-to-front program. It’s funny how many of the best ideas are just an an old idea back-to-front. You see there have already been several programs written that help you to arrive at decisions by properly ordering and organizing all the relevant facts so that they then point naturally toward the right decision. The drawback with these is that the decision which all the properly ordered and analyzed facts point to is not necessarily the one you want.”

        “Well, Gordon’s great insight was to design a program which allowed you to specify in advance what decision you wished it to reach, and only then to give it all the facts. The program’s task, which it was able to accomplish with consummate ease, was simply to construct a plausible series of logical-sounding steps to connect the premises with the conclusion.”

        “The entire project was bought up lock, stock and barrel, by the Pentagon… If you know what you’re looking for, the pattern of the algorithms is very clear. … looking at Pentagon policies over the last couple of years I think I can be fairly sure that the US Navy is using version 2.00 of the program, while the Air Force for some reason only has the beta-test version of 1.5. Odd, that.”

        – Douglas Adams, “Dirk Gently’s Holistic Detective Agency”, 1987

    • cdg says:

      Honestly this judge indicated she was going to rule this way before the government was even properly notified or had a chance to respond to this, didn’t she? It’s all calvinball where you backfill some reasoning into your preferred outcome.

    • Bob_05SEP2022 says:

      The thing that bugs me the most about these christian conservatives federalist society judges is that they think their silly reasoning works on educated American adults the same way it works on the uneducated MAGA lobotomites who watch fox state tv, drooling.

    • Tarkeel says:

      Asha Rangappa opined on twitter that the reasoning might be in part due to fear of reprisal from the MAGA-crowd, similar to what she’s previously observerd in Colombia.

  2. Curveball says:

    The judge fears leaked information could damage Trump. Seems that fear is shared by other extremist-right judges. From the Washington Post of May 2020, when Justice Samuel Alito expressed such concern about Trump’s tax and financial information:

    ‘Alito expresses concern about media leaks of Trump’s tax records’

    By Ann Marimow

    Justice Samuel Alito asked the district attorney’s general counsel about the risk that Trump’s tax and financial records could be leaked to media outlets.

    “We both know there are prosecutors who leak all sorts of information,” including grand jury material, “specifically to the New York Times,” Alito said.

    Carey R. Dunne, general counsel for the Manhattan district attorney, rejected the justice’s assertion. Strict secrecy rules, he said, prevent prosecutors from making grand jury evidence public.

    “I’m not aware of a real pattern or practice,” Dunne said.

    “You’re not aware of this ever happening?” Alito pressed.

    Dunne responded, “They ask all the time and the answer is consistently, ‘No.’ ”

    • Bob_05SEP2022 says:

      Is this judge serious?

      Show of hands, who actually thinks The F.B.I. doesn’t know the exact contents of the seized documents right down to the last scrap of paper roughly an hour after the search was done.

      What is this federalist society idiot thinking.

      Hey, kitten, who are you protecting, exactly?

      All this hack libertarian twit judge did today was give the finger to every decent American and our system of justice.

      But, florida is an open cesspool of un-American floaters, like aileen “federalist society” cannon, so this is hardly surprising.

      • P J Evans says:

        It would have taken more like two to three weeks, but yes, the FBI does know what they have, and are, I’m sure, working on what they don’t have but should.

  3. earlofhuntingdon says:

    Marcy perfectly captures Aileen Cannon’s down-the-rabbit-hole logic:

    She said that because the filter team worked better than mandated by the warrant, it was proof the filter team wasn’t working, and so a Special Master would have to go over everything again.

    • TooLoose LeTruck says:

      “It takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!”

    • earlofhuntingdon says:

      That logic is from a lawyer who was an AUSA, in charge of criminal appeals for the SDFL before Trump appointed her to the federal bench.

      • Bob_05SEP2022 says:

        So, this will now drag out into the Midterms keeping the stolen intelligence documents, this Republican corrupt judge in the forefront of The American Voters’ minds.

        We will be reminded that the gop tried to defend trump, a treasonous spy who was caught with hundreds of our most sensitive intelligence documents…some unsecured in his desk draw.

        Thank kitten.
        In your effort to save the gop ruined reputation, you’ve helped us decent Americans sweep The Midterms.

        Thanks you federalist society twit.

        • TXphysicist says:

          I could be wrong, but…

          Any judge stupid enough to submit a ruling as overreaching as this one probably didn’t understand how explosive the blow-back would be, and is likely incapable of the effort required to fabricate such an elaborate farce on their own. It’s like throwing yourself under the bus for Dear Leader, thinking you were jumping into a swimming pool on a hot summer’s day.

          Is anyone going to be surprised if it comes out that the Federalist Society, Heritage Foundation, and/or Claremont Institute peoples funneled their treasonous directives through her, and she obliged?

      • Nick Barnes says:

        I think they have to appeal. The precedent this sets is just appalling – basically a special master for every search warrant.

  4. Tom-1812 says:

    Isn’t it possible the Special Master could begin winnowing through the records and quickly conclude there is a lot more government wheat than Trump chaff and so wrap up the project more quickly? I imagine that depends on who the Special Master turns out to be.

    • earlofhuntingdon says:

      Everyone stand up who thinks a SM who would do that is one Cannon would appoint.

      And then there’s the workload. Cannon’s SM is being ordered not to review the material identified as privileged by the filter team. It’s being ordered to review the whole set of documents seized by the FBI, virtually all paper. That takes time, staff, and resources. The jury’s out about whether Cannon will make those forthcoming.

    • Ginevra diBenci says:

      Cannon does not address in her ruling how the special master should be appointed, this despite the fact that DOJ spelled out such a process in detail in their motion last week. Instead she requests new submissions from both parties.

      • earlofhuntingdon says:

        One might call that a pretense at fairness, but it’s giving Trump’s team more time to do what DoJ already did, and now has to do over.

        Predictably, Cannon is already pouring over possible SMs. Her choice will embarrass us all.

      • Peterr says:

        She largely accepted the outline the DOJ proposed, and is asking the parties to flesh out the specifics, including a list of potential Special Masters that both agree on, and a detailed set of rules under which they would act. Lacking agreement, both sides are to present their proposals and the judge will decide between them.

        The key will be the rules. For instance, can the SM accept the fact that governmental documents presumptively belong to the government? Can the SM act with the assumption that Executive Privilege belongs to the current Executive, or that EP cannot be used to prevent the Executive Branch from seeing what belongs to the Executive branch?

        Team Trump will be inclined NOT to agree with the DOJ on anything, and roll the dice with the judge to see if she will give them what they want. (It’s worked so far for them, so why not keep trying?)

        • Ginevra diBenci says:

          The key will indeed involve the rules, of which Cannon proposed none. Her ruling indicates that even the government documents’ status might be fungible, given her discussion of executive privilege. So what next? I can only hope DOJ and the letter of the law prevail.

        • Tarkeel says:

          There’s also the issue that the Special Master would need clearance to see the documents being reviewed, which would be an issue.

          • bmaz says:

            There are plenty of people in and around DC that could meet all the requirements to be SM. But the parties will never agree on one, and then Cannon gets the last word. Garland has fucked this case up epically, first by agreeing to release the “redacted affidavit” and which now led to this. Just lame beyond belief.

  5. Cosmo Le Cat says:

    Judge Cannon would not be recommended by the Federalist Society to fill a future Supreme Court vacancy had she ruled otherwise.

  6. Mark P says:

    1st FBI Inventory 26 boxes all labeled. 2nd FBI inventory list 27 boxes, none labelled. Where did this extra box come from?
    Also what happened to the Top Secret SCI documents from the DOJs first court documents and inventory? It is not listed on the detailed inventory

  7. cbear says:

    .This caught my eye
    ……..includes potentially privileged information as well as, “medical documents, correspondence related to TAXES, AND ACCOUNTING INFORMATION”

    You have to wonder what’s in those docs!!
    I know the New York investigation is a state legal affair, but is there a Federal component where that information might be applicable—AND is there any way it might be admissable?

      • Bob_05SEP2022 says:

        The good judge is afraid of the appearance of impropriety.
        Apparently the appearance of a US citizen who was caught illegally hiding hundreds of The United States’ most sensitive intelligence in his desk draw, was fine with the good judge…a loyal federalist society member and trump appointee.

        Does she have any idea how bad this makes her, American Justice and the federalist society look?

        I know she’s in a confederate state so treason is natural but such a public display of treason is rare…even for confederates.

        They’re usually way sneakier.

        [Welcome to emptywheel. Please use a more differentiated username than “Bob” when you comment next as we have several community members named “Bob” “Bobby” “Bobbie” “Rob” “Robbie” “Roberta” or “Robert.” Your name will temporarily salted with today’s date until a new differentiated name has been used. Thanks. /~Rayne]

    • Marika says:

      This caught my eye, they found accounting and tax info. Wouldn’t that sort of paperwork have been part of the discovery in the New York State case wherein Alina Habba signed an affidavit that MAL had been diligently searched and all responsive documents turned over?

        • Ginevra diBenci says:

          This red herring was one of a whole tinful Cannon distributed throughout, which I’m guessing will delight the “media” she seems to view with such distrust.

  8. TimB says:

    A dumb set of related process questions keeps eating at me. By filing this whatever-it-is in Judge Cannon’s district and thus in her court, did the Trump defense increase the likelihood that later related criminal matters will end up there? Would an appeal by the DOJ increase that likelihood? It seems that at least some of the indictments suggested by the information that has come out thus far might have to be made in Florida, rather than DC, hence my concern. IANAL, but have seen “consolidation” move some matters to some unexpected courts.

    • Ravenclaw says:

      I recall that in an earlier post Dr. W. hypothesized that the division of material across two receipts implied a subsequent division of the case, with one batch prosecuted in South Florida and the other in D.C.

      Remember, the “case” (thus far, this means the search warrant – no charges have been filed, after all) began in South Florida, with Magistrate Reinhart approving the warrant – and Cannon is one of the several judges “linked” with Reinhart. Yes, the T**P team chose her out of all the options. But it isn’t really a change of venue as far as I can tell.

  9. Mark P says:

    The author says there’s a top secret document in box 29 and then shows an image that contradicts that statement. It says item 29. Not box 29. The box is not identified and that is a major problem with the FBI’s detailed inventory list. The first inventory list had identification numbers on each box but the detailed list does not. When you count the boxes there is a new extra box on the detailed list. Where did this box come from and why did they omit the detailed box identifiers from the first list?

    • P J Evans says:

      You must be very new here – this is one of a series on the search warrant and its results, and “the author” is Marcy Wheeler.

    • skua says:

      I see an image that identifies “Item #29” as “Box/Container from Storage Room”, and then lists the contents of the box underneath that line. That list includes “1 US Government Document with SECRET Classification Markings”.

      Mark P however writes, “author says there’s a top secret document in box 29 and then shows an image that contradicts that statement. It says item 29. Not box 29. The box is not identified …”.

      FloodTZWS?

  10. Thomas Paine says:

    Does Judge Cannon’s order enjoin the entire investigation or just use of the fruits of the search warrant ? Can the DoJ still issue Subpeona’s to key witnesses like Trump’s dime store Counsel, and useful idiots like Patel and Solomon ?

    Can the DoJ issue a GJ subpeona to Judge Cannon WRT Obstruction ? (Official Acts with corrupt intent are unlawful – even for District Court Judges).

      • BobCon says:

        Right, and I don’t think we really have a good idea of how much else has been going on.

        I think there are good reasons to doubt this is as tightly framed as documents Trump took from the White House to Mar a Lago right before Inauguration.

        I think the government is working through all of the possibilities of critical (not just classified) information (not just documents) from the transition beginning in November 2016 going forward to corraling what’s in Trump’s head in years to come.

        I suspect they have been talking to a much larger universe of people about this issue than we know, and we just don’t know what leads they have explored.

        I think things like the Mar a Lago search, Trump’s reaction, and Garland’s counter-reaction are signs that there are much wider facets to this than we know, and we should not assume this stays with Cannon. But where it goes, who knows?

  11. KM Williams says:

    How is it legal for defendants to pick and chose what judges will rule in their cases?

    What gives Judge Cannon the authority to halt a federal espionage investigation at the behest of the person being investigated?

    I’d like to understand how this is legal. And if it is legal, why can’t the government find their own judge to overrule Judge Cannon’s decision?

    • Insoector9 says:

      Both sides do this. They look at the judge rotation and file when the timing is right. Do you think the doj got the magistrate who signed the search warrant by luck?

      [Welcome to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name (and it may have a typo); you have already published two comments today as “Mark P.” Thanks. /~Rayne]

    • x174 says:

      certainly looks like judge i lean engaged in a series of obstructive actions beginning with accepting drumpf lawyers change in venue to her court. in the end, i bet drumpf, his lawyers and this clearly biased and absurd judge will get their well deserved comeuppance and ridicule. should be very interesting to see what course of action the DOJ decides to take. i think that they should appeal to get drumpf’s request for a special master removed from out of cannon’s jurisdiction. everything about her actions reeks and gives an impression that her sole goal is to obstruct a criminal investigation

  12. Peterr says:

    A question for the lawyers (and others) to ponder . . .

    What happens if, in the course of the ODNI’s national security review of these docs, they come to see that specific crimes have been committed? For instance, if they look at three docs based on an overseas agent’s reports and realize that the agent/source of the information went silent in March 2022, that might lead them to dig further into that disappearance, and discover a dead agent and a trail that leads back to these docs leaving WH control in Jan 2021. Suppose they are able to trace backwards from the dead agent abroad to people here in the US who passed along the information outing the spy.

    Would the ODNI be able to refer these people to the DOJ for prosecution?

    • George Smiler says:

      Yes. The FBI could then start an independent investigation and golly gee, use the list of documents Judge Cannon unsealed, go read other properly stored versions of the subject documents, determine if a crime was committed, there is sufficient evidence to prosecute and then indict or present the evidence of their investigation to a grand jury. Sort of the equivalent of the public testimony in congress about intelligence matters: Oh, we don’t do that any more. We’re doing something else only we can’t talk about it. In the realm of the JD parallel case construction. There are rules however about how new evidence is constructed and not using previously tainted investigators.

      • Thomas Paine says:

        Agree. The TS/SCI documents uncovered all have Document Control Numbers (DCN’s) and Trump’s purloined copies are likely not the originals. If the ODNI team shares the DCN’s with the DoJ, then the criminal investigation proceeds apace, regardless of what the Special Master decides. The documents themselves are NOT covered by Executive Privilege since they did not originate from the Executive.

        Honestly, the most urgent need is for ODNI to determine what Trump did with these things and whom did he share them with or sell them to. They should ask him for an interview to help in their assessment of the damage done to National Security. If he refuses, NARA should label him a spy and a danger to our National Security.

    • TooLoose LeTruck says:

      I know what you’re suggesting here is only a hypothetical and it is indeed the sort of hypothetical I am afraid we will be dealing with soon…

  13. Troutwaxer says:

    This is incredibly fucked-up. I want to see this judge arrested and her immunity removed. (I know that’s not within the rules, but it’s what she deserves.)

  14. Anne says:

    Questions I haven’t seen anybody asking.
    Of the 100s of classified docs at M-a-L, pick one at random. What’s the date of arrival at the WH? 3 years ago? 4? 5?
    Q1: Where was it between that date and Jan 2021? In an untidy stack in a bedroom upstairs in the WH residence?
    Q2: When that doc arrived at the WH, some clerk was responsible for keeping track of it. What did she do when it disappeared upstairs? Did she have to report it missing to the agency that created it? If so, every clerk in the WH and lots of clerks around Washington knew that docs were going missing. And when NARA arrived Jan 2021, the WH clerks had lists.
    Q3: who stopped the clerks from blowing the whistle in, say, 2018? Or did they?
    Q4: since WH cleaning and maintenance staff have access upstairs, did they ever check the piles of docs on behalf of the alarmed clerks?
    Q5: if the whole WH staff knew there were docs upstairs, who would have been responsible for seeing that they didn’t get packed up?

    • skua says:

      If a tree falls in the WH forest are the three letter agencies going to know what has happened to their inventoried classified document and respond?

      Impossible to imagine they’re completely and utterly unfit for purpose.
      Therefore they knew and responded.

    • Anne says:

      One doc goes missing, she screwed up. A dozen docs, whole staff needs retraining. At this volume, something’s going on and you can’t keep it a secret. Word gets around in the WH lunchroom, even if the bosses try to keep it quiet — to say nothing of the agencies that have to be notified. I’m alleging that a lot of well-trained people with security clearances knew this theft was going on even if the rest of us found out a couple of weeks ago. Including chief of staff and WH counsel.

  15. Sandwichman says:

    It is becoming increasingly clear to me that the reason Merrick Garland doesn’t indict Trump is because he knows Trump will file some b.s. motion to dismiss with a hand-picked judge who will grant it thus initiating an interminable series of appeals and delays. The die is cast.

    What to do?

    The answer is not easy. It is not “vote like your life depends on it!” It is not “indict the criminals!” Those remedies have been or are being foreclosed. The answer is “to activate the emergency brake.” But that is only a metaphor for an “impossible” general strike.

    But the impossibility of the general strike is predicated on a historical misunderstanding of the success/failure of general strikes. “Either you win or you lose.” That is incorrect. You lose 100% of the general strikes you can’t even imagine happening. The closer the general strike comes to being a possibility, the less likely it is to be a necessity.

    • Mister Sterling says:

      I suspect that this is all Trump’s hand picked judges can do – delay proceedings. But this isn’t a civil case. Sooner or later, someone big is going to be indicted. If not, this nation is truly finished.

  16. RJames says:

    In a worst case scenario, could the courts require all the documents returned to MAR? I ask this because as much as I would like to see DT behind bars, the real threat is the loss of control of the contents of those documents.

    • joel fisher says:

      Nothing in the world as ephemeral as information. I bet you have a document distribution device a/k/a smartphone with you right now. There needs to be info on the screening of the wedding venue’s employees asap.

  17. Bay State Librul says:

    The fix is in.
    According to Andrew Weissman, it will kill future DOJ investigations.
    White Collar Crimers 1 DOJ 0

  18. BroD says:

    IANAL but I suspect that if DOJ had probable cause to believe that I was in possession of–or worse yet, had shared–highly classified documents. it would respectfully request that I make myself available immediately to discuss this matter, notwithstanding any a special master review process. Am I mistaken?

    • bidrec says:

      The big difference here is that the only way you could be in possession of classified documents is if you had the requisite clearance. Your clearance can be taken away. A clearance is not a right. Donald Trump does not have a clearance. Therefore he can not lose his clearance.

      Where I worked sloppiness with classified documents meant reassignment to report to the base master-at-arms during an investigation. The master-at-arms can always use an extra pair of hands doing ground maintenance or whatever. If you were deemed untrustworthy your billet would be changed to one where you did not work around classified material. Your next duty station would be under a new rating. This is not punishment but it may look and feel like punishment.

    • Paulka says:

      Yep and I fear that they will create a new EP out of whole cloth that will only apply to Trump, meanwhile 2024 election will come and Trump will be appointed making such questions moot.

      • bbleh says:

        …or at the very least, so embroil the whole thing in novel tests (with appropriate reconsideration by trial-level courts) and other procedural delay that it drags on for literally YEARS.

        This, I have always thought, is the point. The actual legalities … whatEVERRRRR.

  19. harold hecuba says:

    Yes, this is fucked up, but I don’t think this does anything really except delay the investigation. And while I think any delay at this point is ridiculous, I also think, ultimately, this shows that the law has bent over backwards to protect this former president, granting him considerations that absolutely none of us would have…and that makes the case even stronger (assuming there is a case). There won’t be anything to hide behind if there is an indictment.

    Why, yes, I do wear glasses and they are rose-colored. Why do you ask?

    But like Paul Newman (sorta) said in THE VERDICT:

    “No, no, you listen to me. All I wanted in this case is an even shake. You rushed me into court in five days… my star witness disappears, I can’t get a continuance, and I don’t give a damn. I’m going up there and I’m going to try it. Let the jury decide. They told me [Cannon] she’s a hard-ass, she’s a defendant’s judge. I don’t care. I said, the hell with it. The hell with it. I’ll take my chances she’ll be fair…And don’t give me this shit, ‘I was a lawyer, too.’ ‘Cause I know who you were. You couldn’t hack it as a lawyer. You were Bag Man for the Boys and you still are. I know who you are.”

  20. Riktol says:

    So the executive branch can review the documents to do a “national security assessment”, but the executive branch can’t review the documents “for investigative purposes”. And the executive branch must give way when the former executive potentially asserts its that it might invoke executive privilege.
    Did I get that right?
    Anyway Judge Cannon appears to have been worth her 30 pieces of silver.

    • Mister Sterling says:

      You got it correct. And I think this as far as the Trump team trickery goes. Getting this one delay is a long-shirt short term victory. After that, the wheels of the criminal case will speed along. This is a very serious criminal case. It’s suddenly the biggest case the DOJ has active. And no former executive is going to direct how this goes. If we let Trump dictate how he is prosecuted, we all deserve to be executed for being the biggest idiots the world have ever known.

    • Tarkeel says:

      IIRC it was also stated as an argument that the current executive needed to refer to some of these documents in order to take informed actions in the now. Not unlike related to JCPOA.

  21. hollywood says:

    Right now delay is the name of the game. It underscores the so-called 60 day rule [sic] or 90 day rule [sic].

  22. FactChecker says:

    Marcy why is it that the DOJ is allowed to add a box to the inventory list without objection?  The first search inventory list had 26 boxes.  The new detailed list has 27 boxes.  And you cant compare the 2 list because original list had label identifiers and the new detailed list does not . You know this because you made a nice spreadsheet, but you dont answer and will censor this post. How does it feel to have such a weak argument that you must withhold facts to sound smart?

    [I’m letting this comment through but based on the user identity information you strongly resemble another commenter. Consider this a warning (and it may be your second) that sockpuppeting by using more than one identity is not permitted. /~Rayne]

    • Darncat says:

      You are spamming this site with disingenuous misinformation. It’s time for your IP to be banned from this site, and hopefully all others.

  23. Cosmo Le Cat says:

    Forensics should continue, as it is an essential part of the ODNI assessment, in my ignorant opinion. An essential part of that assessment is determining if DNA or fingerprints came from foreign agents or their domestic spies like Kushner. A special master may taint the original docs with additional DNA, so I would expect the SM to work with copies.

    • Rayne says:

      Counterintelligence work should definitely continue, and the fingerprinting is part of that process, not necessarily part of criminal investigation alone.

      • Former AFPD says:

        In consideration of things that can continue: I’ve read the judge’s order. It appears to be filled with legal and factual errors, the sort which ought to make the DOJ very thoroughly consider appealing it. This order makes me think about my indigent clients. If I’d succeeded in getting an order to stop an investigation (unimaginable really) in connection with the appointment of a special master, the government would just indict my client and then appeal the special master order. The mere possession of top secret documents constitutes a federal crime. It would be easy to indict for a file or two and hold the proceedings in abeyance while seeking review of the special master order. While they are at it, why not file that motion to inquire into the conflicted interests of counsel and request an evidentiary hearing? This situation in reality is very complicated with facts and issues about which we outsiders are completely uninformed. However, the judge’s order has made me reflect upon the protections TFG is getting that no federal public defender client would be allowed.

        • jdmckay says:

          For me, too many moving parts/variables/unknowns to speculate about any of this. Including what may (or not) happen to Trump.

          You’ve made some good, illuminating comments recently. Appreciate itf.

          Only thing I’ll say: based (especially) of what MW has written it seems to me Garland and his team have been on their A game. I’m sure those guys will be burning a lot of midnight oil in coming days. I also think (at least Garland) has the added seriousness and intention compared to anything else we’ve seen in last 20+ years, knowing full well MAGA is a very real/determined threat to US democracy.

          Trump’s speech in Philadelphia only fortifies that notion: he doubled down and amplified everything that got him in trouble and is the evil that motivates him.

        • Rayne says:

          I want to go with the simplest charges which can’t be affected by any documents which may be contested. That Trump refused/avoided repeatedly to turn over presidential records *before the warrant was executed* begs for obstruction charges. There’d already been enough evidence of responsive documents not relinquished to issue a warrant, after all.

          Like you I can’t imagine any other individual not being charged, not just for holding illicit materials but for obstructing investigation.

          • bbleh says:

            Re “charges which can’t be affected by any documents which may be contested,” is it not the case that ALL documents seized at MAL are presently subject to contest? And thus that there are NO documents — “national defense” or not, government property or not — that Trump did not turn over voluntarily or in compliance with a subpoena, that are admissible as evidence in any proceeding, including presentation to a grand jury?

            I know a lot depends on what ultimately is decided as the SM’s remit, and on the outcomes of various appeals (and leaving aside what I still think is the principal point of all of this, ie delay), but aren’t DOJ kinda stymied right now? Do they want to indict on the basis of documents that eventually were acknowledged and surrendered? Don’t they have to wait for the judge or the SM to say the investigation can proceed using X batch of documents (and then wait for all that to be settled in litigation) before they’ve really got the goods?

            • Legonaut says:

              There were two separate occasions, in January and June 2021, where Trump was found to be in illegal possession of government documents. Anything found in June would certainly count towards obstruction, since they weren’t surrendered in January.

              The charges listed in the warrant can already be indicted (if DOJ so wills it) entirely without reference to the August search at the center of this kerfuffle. I think it’s more about pinning down all of the exposed intel and identifying all of the abettors.

            • Rayne says:

              I don’t know how any NDI or classified material can fall into the SM’s remit. It’s simply not Trump’s in any way, shape, or form if the country’s national security relies on it right the fuck now.

              • bbleh says:

                Oh nonono, Trump has not been found to be in “illegal possession” of anything! A few records among the many, many that a busy C-in-C must deal with were found to be misplaced in his relocation, and after discussions among the relevant parties, were returned to the government. No harm no foul. Is DOJ REALLY going to indict an ex-president over a DELAY in returning a few pieces of paper?

                And re NDI among the material seized in the search, what about “executive privilege?” Who is to say to what it extends? Perhaps ultimately only the Supremes, it being a Constitutional Issue. And given that those documents are presently in secure government custody and hence not at risk of exposure, is it not proper to sequester them legally against the possibility privilege might pertain until after the issue is settled? And in that case is there at present any evidence of improper retention of NDI?

                I honestly don’t know where the cloud of squid ink is gonna stop, or how long it will take to thin it out, now that (to mix metaphors) the SM genie is out of the bottle.

  24. Fenix says:

    “Some records recovered from Mar-a-Lago were so sensitive that FBI agents needed special clearance to see them” https://www.businessinsider.com/mar-a-lago-documents-so-secret-agents-needed-special-clearance-2022-8

    IANAL (I’m sure that’s pretty obvious) Clearances like that are presumably not just granted for just anyone, the group of people who would qualify to get the clearance to be a Special Master has got to be pretty small. Would this judge actually entertain a suggested SM who might not qualify for a clearance of that level? Or is this an actual crapshoot at this point?

    • bbleh says:

      Do we not think it a reasonable possibility that THIS judge would appoint a SM WITHOUT the necessary clearances and then say it’s up to the USG to clear him/her expeditiously, thereby adding further to the (plainly unnecessary but beneficial to Trump) delay?

  25. Mainly Mike says:

    The Judge puts the cart in front of the horse by citing the Younger case at the end which lays out how unusual it is to restrict a criminal investigation. It reeks of writing an opinion to justify the decision. That said it is a reasoned opinion which might not be quickly overturned. The Judge also did not fully explore the public interest requirement. Sure the investigation should look fair. The public also has an interest in seeing criminals prosecuted and say keeping nuclear secrets from being disseminated to other nations. Any thoughts on the Nixon case?

  26. Steve C says:

    So, assuming the SM is reasonable, can the documents they review be prioritized by the DOJ, since they know exactly what they are? For example, “Please look at the TS document dated November 2, 2020 first, since we need to act on that right away. And please save the news clippings for last.”

    • bbleh says:

      “[A]ssuming the SM is reasonable,” perhaps. Perhaps it was also reasonable to assume that the judge would follow procedure, respect relevant precedents, etc.

  27. bbleh says:

    “[A]ssuming the SM is reasonable,” perhaps. Perhaps it was also reasonable to assume that the judge would follow procedure, respect relevant precedents, etc.

  28. P J Evans says:

    Over at Kos there’s a suggestion that the SM be Obama. I doubt that will happen, but he’d probably be one of the better-qualified people for that job.

  29. Robot17 says:

    The problem as I see it is even if the SM goes through and sorts it all out yippy-skippy, Trump’s attorneys are looking at the next avenue of escape should they be displeased with the results. They’ll look for another venue to vacuum-lock the evidence either through an appeal or injunctive relief of some kind and likely as not that venue is already chosen and paid for. His responses are completely predictable and yet we sit surprised and on hind legs again (or it seems like that).

    I don’t know why the DoJ doesn’t just snow Trump’s lawyers with everything possible that would require a response on their part and in the meantime ignore Cannon’s order and indict. Full blast.

  30. Marika says:

    From historian, Heather Cox Richardson: “The idea that Cannon felt obliged to reassure MAGA Republicans that Trump is being treated fairly, rather than the rest of us that the rule of law is being protected, redefines the American public and American principles.”

  31. John Gurley says:

    Can’t the DOJ simply indict Trump, and make attorney client privilege moot?

    And if Trump is a national security risk, shouldn’t he be in custody?

  32. joe willy says:

    how is it that judge born in colombia, a narc country, and only 40 years old be a Federal Judge in this great country.

    An individual who has no blood in the game like those brave souls buried around the world like France, Punch Bowl,DC and those other hallowed grounds is now making decisions like this.

    Never in a million years did our founding fathers believe a life time appointment would be to someone like this.

    My four grandfathers and one at Valley Forge did not fight for this.
    Joe Willy

    • Yorkville Kangaroo says:

      Where someone comes from should have absolutely zero bearing on someone’s fitness to serve in the judiciary or anywhere else.

      Appointing someone highly talented at 40 to the bench is hardly a stretch but there ought to be some limits on how much experience a judge must have in order to become appellate and SCOTUS. One of the reasons Barrett was appointed was because she was only 50 and gets maybe 35-50 years on the bench given our expanding life expectancy.

      Personally I’d like to see requirements brought in that require an appellate appointment to have at least 15 years hearing cases and SCOTUS nominees having at least another 10 on appellate but that’s just me.

  33. Hal Daniels says:

    Talking of investigations, why haven’t MI5 and MI6 investigated these links properly? Both Johnson and Cummings have been worshipping all things Russian since they were teenagers and the Sunak mob have a mere £650 million invested in Russia. An unusual report on the web entitled Britain’s Dismal Dossier on Russian Political Infiltration by Bill Fairclough (ex-spook and author of The Burlington Files autobiographical espionage series) actually names over 60 people with “Russian links” known to Johnson/Cummings who may have influenced their past decisions. Rest assured that your understanding of UK/USA/Russian politics will change completely forever if you read the report. See https ://theburlingtonfiles. org/news_2021.07.21.php and look at the brief articles referred to therein.

    Do ask yourself, have you as many friends and acquaintances from any foreign nation as Johnson and/or Cummings have somehow accumulated in Russia? Why should anyone believe Johnson puts his country before himself or believe his anti-Russian rhetoric? In 2016 when campaigning for Brexit he accused the EU of provoking Russia’s attacks on Ukraine. Indeed, Johnson/Cummings delivered Brexit beyond Putin’s wildest dreams. Combine Brexit with Trump’s divisiveness and no wonder Putin concluded the USA/EU/UK/NATO club was a crippled anachronism. We need answers to questions posed by Fairclough such as were Trump, Johnson et al influenced by Russian intelligence prior to becoming political bigwigs? Each of them could have been unwittingly manipulated – after all, flattery is a narcissist’s best friend.

    Postscript – As explained in the autobiographical series The Burlington Files about Bill Fairclough he admits he was unwittingly used by British Intelligence for years before he realised it. So, maybe the KGB, FSB et al applied similar stratagems with others. After all, both China and Russia maintain “current” lists of millions of people in the West of “potential interest” and follow them through their lives with a view to recruitment if ever they make it anywhere anyhow. See https ://theburlingtonfiles. org/news_2021.07.21.php

    [Links shared above have been deactivated with insertion of blank spaces; the site has not been vetted, community members should use at their own risk. /~Rayne]

    • Rayne says:

      First, we’re Americans and are a bit invested in how U.S. democracy operates. Forgive us if we don’t take on dogging another country’s governance.

      Second, why aren’t Britons up in arms about Johnson? Yes, they were angered enough that he’s been booted after dragging his bloody feet but sneaking off to party with Lebedev in Italy has never been fully explained and shouldn’t have been tolerated because of the national security risks involved. And yet from over here it looks more like Britons were more outraged he had Christmas parties when he told Britons to isolate. Whatever, we have our hands full as you can see.

      Thirdly, your comment looks very much like a promotion for a particular website. For that reason I’m deactivating the links you shared and cautioning community members to use only at their own risk.

      Welcome to emptywheel. How’s the weather in Cambridge area anyhow?

    • Yorkville Kangaroo says:

      “…why haven’t MI5 and MI6 investigated these links properly?”

      Who said they haven’t. The fact you haven’t heard about it doesn
      t mean they’re not happening. That’s kind of how REAL spies operate.

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