Judge Aileen Cannon’s Funny Ideas about Being Owned

As noted yesterday, Judge Aileen Cannon enjoined the government from conducting a criminal investigation into violations of the Espionage Act and obstruction because around 4.5% — possibly as little as .5% — of the materials seized from Trump in 27 boxes amount to things more personal than MAGA hats and press clippings.

Her logic rests on a series of false claims about what amounts to being owned.

To understand why, you need to understand how a conservative Republican judge — child of a refugee from Communist Cuba! — upended property rights to halt a criminal investigation into the theft of property.

Aileen Cannon agrees that possession is the law

Trump’s motion had asked for a Special Master who would tell them what was in the boxes that Evan Corcoran told the FBI he had already reviewed diligently so he, Trump, could file a Rule 41(g) motion to claw that stuff back. He wasn’t filing it as a Rule 41(g) motion. He was filing something to give the lawyer who claimed to have gone through all these boxes enough knowledge of them to file a Rule 41(g) motion.

But, as DOJ’s head of the Espionage section. Jay Bratt, explained when he described in a hearing before Judge Cannon that DOJ was treating this as a Rule 41(g) motion and why this should end everything, Rule 41(g) only works if someone is trying to claw back their own property. Trump doesn’t own the vast majority of what was seized.

One is Rule 41(g), and we believe this is a truly 41(g) motion; or second, the Court can exercise a second or anomalous jurisdiction. To do that, that then triggers certain inquires the Court must make, and it also triggers certain burdens on them to establish that they satisfy those standards.

The civil cover sheet to this matter references Rule 41(g). There are frequent references throughout Plaintiff’s briefs to Rule 41(g), and we believe that what they have really done is brought a Rule 41(g) motion. And if the Court interprets and reads and applies Rule 41(g) strictly, they cannot get a special master or the relief that they seek, and that’s because the key factor that must exist for a party to bring a Rule 41(g) motion is that the party has a possessory interest in the property at issue.

And let me describe what the former President has as Presidential records that the 45th President took. He is no longer the President; and because he is no longer the President, he did not have the right to take those documents. He was unlawfully in possession of them; and because he has no possessory interest in those records, that ends the analysis under Rule 41(g).

That means, under the second prong of binding precedent in the 11 Circuit, if Trump doesn’t own this stuff, he’s not entitled to relief.

THE COURT: You don’t dispute one can bring a civil action in equity for the return of property pre-indictment assuming the equitable factors and consideration to counsel in favor of such an action.

MR. BRATT: I do agree with that; but under the Richey factors and to go through them — and actually, I was going to start with the first, callus disregard for Plaintiff’s constitutional rights, I will get back to that. But the second Richey factor is that Plaintiff must have an interest in and need for the property, and this plaintiff does not have an interest in the classified and other Presidential records. So under Richey, that, in and of itself, defeats or should point the Court to decline to exercise its equitable jurisdiction.

Cannon agreed with Bratt on the law. If Trump doesn’t own this stuff, he can’t demand it back.

Like Bratt, she sort of takes Trump’s bizarre filing as a Rule 41(g) motion too, even while she calls Trump’s arguments convoluted.

As previewed, Plaintiff initiated this action with a hybrid motion that seeks independent review of the property seized from his residence on August 8, 2022, a temporary injunction on any further review by the Government in the meantime, and ultimately the return of the seized property under Rule 41(g) of the Federal Rules of Criminal Procedure. 6 Though somewhat convoluted, this filing is procedurally permissible7 and creates an action in equity. See Richey v. Smith, 515 F.2d 1239, 1245 (5th Cir. 1975) (“[A] motion [for return of property] prior to [a] criminal proceeding[] . . . is more properly considered simply a suit in equity rather than one under the Rules of Criminal Procedure.”);

By treating this as a convoluted Rule 41(g) motion, she is conceding the centrality of the ownership of the items at issue to the analysis.

Indeed, as she notes in a footnote, this is all about property.

7 Rule 41(g) allows movants, prior to the return of an indictment, to initiate stand-alone actions “in the district where [their] property was seized.” See Fed. R. Crim. P. 41(g); United States v. Wilson, 540 F.2d 1100, 1104 (D.C. Cir. 1976) (“Property which is seized . . . either by search warrant or subpoena may be ultimately disposed of by the court in that proceeding or in a subsequent civil action.”); In the Matter of John Bennett, No. 12-61499-CIV-RSR, ECF No. 1 (S.D. Fla. July 31, 2012) (initiating an action with a “petition to return property”); see also In re Grand Jury Investigation of Hugle, 754 F.2d 863, 865 (9th Cir. 1985) (“[A] court is not required to defer relief [relating to privileged material] until after issuance of the indictment.”).

So Judge Cannon agrees that this issue significantly pivots around property. It is in how she effectively seizes government property (in the same ruling where she suggests one should be able to steal and sell Ashely Biden’s property with impunity) where things begin to go haywire.

Aileen Cannon refused to return Trump’s personal information so she could justify stealing US taxpayer property

Cannon starts her decision on whether to appoint a Special Master not on the privilege questions, but on Richey, which is how one decides whether someone should get their property back. In her analysis of the second prong of Richey, she decides (virtually all of this entails Cannon doing things Trump’s attorneys did not do) that Trump does have a property interest in this material. She points to medical and tax records the likes of which she believes people should be able to steal from Ashely Biden with impunity and says those — a tiny fraction of the whole — gives Trump standing under Richey.

The second factor—whether the movant has an individual interest in and need for the seized property—weighs in favor of entertaining Plaintiff’s requests. According to the Privilege Review Team’s Report, the seized materials include medical documents, correspondence related to taxes, and accounting information [ECF No. 40-2; see also ECF No. 48 p. 18 (conceding that Plaintiff “may have a property interest in his personal effects”)]. The Government also has acknowledged that it seized some “[p]ersonal effects without evidentiary value” and, by its own estimation, upwards of 500 pages of material potentially subject to attorney-client privilege [ECF No. 48 p. 16; ECF No. 40 p. 2]. Thus, based on the volume and nature of the seized material, the Court is satisfied that Plaintiff has an interest in and need for at least a portion of it, even if the underlying subsidiary detail as to each item cannot reasonably be determined at this time based on the information provided by the Government to date. 10

10 To the extent the Government challenges Plaintiff’s standing to bring this action, the Court addresses that argument below. See infra Discussion II.

This is why I laid out how small a percentage of the seized records this involves. On August 8, the government seized 11,282 stolen government records, of which 103 are marked as classified, 1,673 press clippings, and around 64 “sets of material” that might be privileged. 

Those 64 sets of material have not been shared with the investigative team. They’ve been segregated by the privilege team. Cannon doesn’t even claim Trump owns them. He may not! They may be White House Counsel documents about the Mazars challenge or White House physician documents about Trump’s COVID treatment. We don’t know whether they do or not because they are being protected, for Trump’s sake.

But the claim that this personal information equates to a property interest is one of three things that Cannon cites to substantiate her claim that something among this vast swath of stolen documents is owned by Donald Trump.

Then, Aileen Cannon double counts stuff. She only knows about — and has “leaked” the details about these medical and tax records — because she (unlike the investigative team) has read and publicly disclosed material from the filter team report. There are upwards of 500 pages that might be privileged (520, the privilege team says), which she counts as a separate property interest of Trump’s from the seized medical and tax records found within those 520 pages that only the privilege team has seen, even though it’s the same 520 pages and US taxpayers might well own those 520 pages (if, for example, they pertained to Trump’s treatment for COVID or DOJ’s defense of Trump in the Mazars case) as well.

That would be crazy enough. But to ensure she’d even get to this ruling, Cannon already refused to let DOJ share all this, the 520 pages of potentially privileged material and the tax and medical records therein. The filter team lawyers, Benjamin Hawk, asked to do so last Thursday. But Cannon told him no, because she wanted to do all this “holistically”.

MR. HAWK: We would like to seek permission to provide copies — the proposal that we offered, Your Honor, provide copies to counsel of the 64 sets of the materials that are Bates stamped so they have the opportunity to start reviewing.

THE COURT: I’m sorry, say that again, please.

MR. HAWK: The privilege review team would have provided Bates stamped copies of the 64 sets of documents to Plaintiff’s counsel. We would like to seek permission from Your Honor to be able to provide those now, not at this exact moment but to move forward to providing those so counsel has the opportunity to review them and understand and have the time to review and do their own analysis of those documents to come to their own conclusions. And if the filter process without a special master were allowed to proceed, we would engage with counsel and have conversations, determine if we can reach agreements; to the extent we couldn’t reach agreements, we would bring those before the Court, whether Your Honor or Judge Reinhart. But simply now, I’m seeking permission just to provide those documents to Plaintiff’s counsel.

THE COURT: All right. I’m going to reserve ruling on that request. I prefer to consider it holistically in the assessment of whether a special master is indeed appropriate for those privileged reviews.

So the only reason DOJ still has exclusive possession of the materials on which she hangs her Richey analysis is because she, Aileen Cannon, prohibited DOJ from sharing it, and she uses DOJ’s possession of it to prevent the government from investigating the thousands of government documents Trump stole.

As for the rest, she makes stuff up. As noted, she claims that in the government’s response they admitted that, “The Government also has acknowledged that it seized some “[p]ersonal effects without evidentiary value.” She returns to this citation several times to claim that the government has acknowledged it seized stuff it should not have. Tell me if you can find that acknowledgment in the passage she cites (I’ve bolded what she claims is such an acknowledgement and italicized something Cannon entirely ignored):

As his last claim for relief, Plaintiff asks this Court to order “the Government to return any item seized pursuant to the Search Warrant that was not within the scope of the Search Warrant.” D.E. 28 at 10; see id. at 4. In Plaintiff’s view, retaining such material “would amount to a violation of the Fourth Amendment’s protections against wrongful searches and seizures.” D.E. 28 at 9. Although Plaintiff does not specify what material he contends was seized in excess of the search warrant, certain personal effects were commingled with classified material in the Seized Evidence, and they remain in the custody of the United States because of their evidentiary value. Personal effects without evidentiary value will be returned.

Nonetheless, contrary to Plaintiff’s contention, personal effects in these circumstances are not subject to return under Criminal Rule 41(g), for four independent reasons. First, the search warrant authorized seizing and retaining items in containers/boxes in which documents with classification markings were stored. See MJ Docket D.E. 17 at 4. Evidence of commingling personal effects with documents bearing classification markings is relevant evidence of the statutory offenses under investigation.

Second, even if the personal effects were outside the scope of the search warrant (contrary to fact), their seizure and retention would not violate the Fourth Amendment because they were commingled with documents bearing classification markings that were indisputably within the scope of the search warrant. See, e.g., United States v. Wuagneux, 683 F.2d 1343, 1353 (11th Cir. 1982) (“It was also reasonable for the agents to remove intact files, books and folders when a particular document within the file was identified as falling with the scope of the warrant. To require otherwise ‘would substantially increase the time required to conduct the search, thereby aggravating the intrusiveness of the search.’” (citation omitted)).

Third, even if the personal effects were seized in excess of the search warrant—which Plaintiff has not established—Criminal Rule 41(g) does not require their return because that Rule was amended in 1989 to recognize that the United States may retain evidence collected while executing a warrant in good faith. See, e.g., Grimes v. CIR, 82 F.3d 286, 291 (9th Cir. 1996). As the Advisory Committee explained in connection with the 1989 amendment of Criminal Rule 41(e) (now subsection (g)), Supreme Court precedent permits “evidence seized in violation of the fourth amendment, but in good faith pursuant to a warrant,” to be used “even against a person aggrieved by the constitutional violation,” and “Rule 41(e) is not intended to deny the United States the use of evidence permitted by the fourth amendment and federal statutes.” The decoupling of Criminal Rule 41(g) from the Fourth Amendment also explains why a motion to return property provides no forum to litigate the scope of a search warrant: failure to comply with a search warrant or the Fourth Amendment is neither necessary nor sufficient to prove a movant’s entitlement to the return of property under Criminal Rule 41(g). [bold and italics mine]

Look at what she did!!! First, she took a subjunctive statement — that if the FBI were to find personal items without evidentiary value (like his passports, which they already returned, of which she makes no mention, because it would prove the government is right) — and outright lied and claimed it was a concession they had found such things. The reason she doesn’t mention the passports, by the way, is because the government said, “The location of the passports is relevant evidence in an investigation of unauthorized retention and mishandling of national defense information.” So even there, they asserted an investigative interest. But in a passage where the government states, outright, that the Plaintiff has not established the government has seized anything not covered by the warrant, Aileen Cannon simply invents a concession that says they took stuff that is unnecessary to the investigation. Makes it up!

And yet she uses it as part of her “proof” that there are personal belongings among the 11,000 stolen documents. And she invented it out of thin air.

Cannon puts a Special Master where the DC District should be

Note what Judge Cannon didn’t deal with in this analysis of the second prong of Richey? DOJ’s assertion that Trump doesn’t own any of the 11,000-plus stolen documents seized as contraband. She separates the question of who owns the bulk of the materials seized into a separate section, purportedly about standing, not Richey.

Only after she decides that Trump has a possessory interest in the 11,000 stolen documents because of the tax and medical records therein that she prevented DOJ from sharing with Trump’s lawyers last week does she turn to the Presidential Records Act that makes these stolen documents. The first time she does so, and in a separate section, she dismisses the government’s argument about standing under Richey — analysis about which she has just done — as premature.

The Government relies on the definition of “Presidential records” under the Presidential Records Act (the “PRA”), see 44 U.S.C. § 2201(2), and on the Eleventh Circuit’s decision in Howell, 425 F.3d at 974; see supra note 12.

Plaintiff opposes the Government’s standing argument as premature and fundamentally flawed [ECF No. 58 p. 2]. In Plaintiff’s view, what matters now is his authority to seek the appointment of a special master—not his underlying legal entitlement to possess the records or his definable “possessory interest” under Rule 41(g) [ECF No. 58 pp. 4–6]. Moreover, Plaintiff adds, even assuming the Court were inclined at this juncture to consider Plaintiff’s potential claim of unreasonableness under the Fourth Amendment, settled law permits him, as the owner of the premises searched, to object to the seizure as unreasonable [ECF No. 58 pp. 2, 4–6].

Having considered these crisscrossing arguments, the Court concludes that Plaintiff is not barred as a matter of standing from bringing this Rule 41(g) action or from invoking the Court’s authority to appoint a special master more generally.


Although the Government argues that Plaintiff has no property interest in any of the presidential records seized from his residence, that position calls for an ultimate judgment on the merits as to those documents and their designations. [my emphasis]

Side note: it doesn’t matter for Fourth Amendment precedent, but this is another example of where Cannon seizes and reallocates property with wild abandon. Trump does not own Mar-a-Lago. The club does, and Trump Organization owns that. The failson is apparently in charge of it all. This has apparently been an issue in both the Beryl Howell grand jury docket and the Bruce Reinhart warrant docket. So while it doesn’t matter to her legal analysis, she simply invents Trump’s ownership of a club that his biological person does not own and on that basis uses it to give Trump standing.

But in this passage, which she conducts separately from the Richey analysis that pivots entirely on a made up claim and possession of documents she herself prohibited the government from sharing, she implies that proceedings before her will make, “an ultimate judgment on the merits as to those documents and their designations” — that is, a determination of ownership under the PRA.

Five pages later, in a section on Executive Privilege, she concedes that questions about ownership under the Presidential Records Act don’t belong before a Special Master appointed by a SDFL judge. It belongs in the DC District.

16 The Court recognizes that, under the PRA, “[t]he United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist” to permit public dissemination of presidential records “violates the former President’s [constitutional] rights or privileges.” 44 U.S.C. § 2204.

Having conceded that, Cannon has conceded she has no authority to appoint a Special Master to adjudge ownership under PRA. But in the same opinion where she concedes she doesn’t have this authority, she appoints a Special Master to weigh in on the matter.

This wouldn’t matter if Cannon just appointed a Special Master to review the attorney-client privilege claims. But her order envisions a review of all 11,000 seized stolen documents, based on her assertion that the question of ownership is still uncertain.

Aileen Cannon declares herself President and overrides Joe Biden’s delegated Executive Privilege decision

Judge Cannon could have simply appointed a Special Master to review Attorney-Client determinations (and such a decision might have been modest and defensible). But after assuming the right to appoint a Special Master to determine PRA issues, she then wades into Executive Privilege, claiming that Trump (whose lawyer told the FBI he had closely inspected all these boxes) has not had an opportunity to invoke Executive Privilege.

On the current record, having been denied an opportunity to inspect the seized documents, Plaintiff has not formally asserted executive privilege as to any specific materials, nor has the incumbent President upheld or withdrawn such an assertion.

She points to two precedents pertaining to the EP claims of a former President against a co-equal branch of government and on that basis claims that it remains unsettled whether Trump can invoke Executive Privilege to claw back material from the Executive branch.

The Government asserts that executive privilege has no role to play here because Plaintiff—a former head of the Executive Branch—is entirely foreclosed from successfully asserting executive privilege against the current Executive Branch [ECF No. 48 pp. 24–25]. In the Court’s estimation, this position arguably overstates the law. In Nixon v. Administrator of General Services, 433 U.S. 425 (1977), a case involving review of presidential communications by a government archivist, the Supreme Court expressly recognized that (1) former Presidents may assert claims of executive privilege, id. at 439; (2) “[t]he expectation of the confidentiality of executive communications . . . [is] subject to erosion over time after an administration leaves office,” id. at 451; and (3) the incumbent President is “in the best position to assess the present and future needs of the Executive Branch” for purposes of executive privilege, id. at 449. The Supreme Court did not rule out the possibility of a former President overcoming an incumbent President on executive privilege matters. Further, just this year, the Supreme Court noted that, at least in connection with a congressional investigation, “[t]he questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege, are unprecedented and raise serious and substantial concerns.” Trump v. Thompson, 142 S. Ct. 680, 680 (2022); see also id. at 680 (Kavanaugh, J., respecting denial of application for stay)


Thus, even if any assertion of executive privilege by Plaintiff ultimately fails in this context, that possibility, even if likely, does not negate a former President’s ability to raise the privilege as an initial matter. Accordingly, because the Privilege Review Team did not screen for material potentially subject to executive privilege, further review is required for that additional purpose.

This is insane analysis. But the craziest part is that, with those words, “further review is required,” Aileen Cannon appoints herself President and overrides an Executive Privilege decision the actual President has already made.

Oh sure. She pretends the actual President hasn’t already weighed in.

Here’s how smothers Joe Biden — and the delegation he made to the Archives in May to make an Executive Privilege determination — with a pillow. On page 2, Cannon lays out the posture of this case this way.

On April 12, 2022, NARA notified Plaintiff that it intended to provide the Fifteen Boxes to the Federal Bureau of Investigation (“FBI”) the following week [ECF No. 48 p. 5]. Plaintiff then requested an extension on the contemplated delivery so that he could determine the existence of any privileged material [ECF No. 48-1 p. 7]. The White House Counsel’s Office granted the request [ECF No. 48-1 p. 7]. On May 10, 2022, NARA informed Plaintiff that it would proceed with “provid[ing] the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022” [ECF No. 48-1 p. 9]. The Government’s filing states that the FBI did not obtain access to the Fifteen Boxes until approximately May 18, 2022 [ECF No. 48 p. 7].

She draws from page 5 of the government response and non-contiguous pages, page 7 and 9, from the letter Acting Archivist Debra Steidel Wall sent Evan Corcoran in May. She left out page 8 of the appendix, in which Steidel Wall said this:

[T]he Supreme Court’s decision in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), strongly suggests that a former President may not successfully assert executive privilege “against the very Executive Branch in whose name the privilege is invoked.” Id. at 447-48. In Nixon v. GSA, the Court rejected former President Nixon’s argument that a statute requiring that Presidential records from his term in office be maintained in the custody of, and screened by, NARA’s predecessor agency-a “very limited intrusion by personnel in the Executive Branch sensitive to executive concerns”-would “impermissibly interfere with candid communication of views by Presidential advisers.” Id. at 451 ; see also id. at 455 (rejecting the claim). The Court specifically noted that an “incumbent President should not be dependent on happenstance or the whim of a prior President when he seeks access to records of past decisions that define or channel current governmental obligations.” Id. at 452; see also id. at 441-46 ( emphasizing, in the course of rejecting a separation-of-powers challenge to a provision of a federal statute governing the disposition of former President Nixon ‘s tape recordings, papers, and other historical materials “within the Executive Branch,” where the “employees of that branch [would] have access to the materials only ‘for lawful Government use,” ‘ that “[t]he Executive Branch remains in full control of the Presidential materials, and the Act facially is designed to ensure that the materials can be released only when release is not barred by some applicable privilege inherent in that branch”; and concluding that “nothing contained in the Act renders it unduly disruptive of the Executive Branch”).

It is not necessary that I decide whether there might be any circumstances in which a former President could successfully assert a claim of executive privilege to prevent an Executive Branch agency from having access to Presidential records for the performance of valid executive functions. The question in this case is not a close one. The Executive Branch here is seeking access to records belonging to, and in the custody of, the Federal Government itself, not only in order to investigate whether those records were handled in an unlawful manner but also, as the National Security Division explained, to “conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps.” These reviews will be conducted by current government personnel who, like the archival officials in Nixon v. GSA, are “sensitive to executive concerns.” Id. at 451. And on the other side of the balance, there is no reason to believe such reviews could “adversely affect the ability of future Presidents to obtain the candid advice necessary for effective decision-making.” Id. at 450. To the contrary: Ensuring that classified information is appropriately protected, and taking any necessary remedial action if it was not, are steps essential to preserving the ability of future Presidents to “receive the full and frank submissions of facts and opinions upon which effective discharge of [their] duties depends.” Id. at 449.

The bolded language, by the way, is a premise that Cannon adopts in letting the government continue its damage assessment. But she doesn’t cite it, probably because it would make clear not just how outlandish her argument is, but that this decision has already been made.

And Cannon cut out page 6 of the government response, which says this.

As the NARA Referral stated, the Fifteen Boxes contained “highly classified records.” Upon learning this, DOJ sought access to the Fifteen Boxes in part “so that the FBI and others in the Intelligence Community could examine them.” Wall Letter at 1. DOJ followed the steps outlined in the Presidential Records Act to obtain access to the Fifteen Boxes.

On April 12, 2022, NARA advised counsel for the former President that it intended to provide the FBI with the records the following week (i.e., the week of April 18). Id. at 2. That access was not provided then, however, because a representative of the former President requested an extension of the production date to April 29. See id. As the Acting Archivist recounted, on April 29, DOJ advised counsel for the former President as follows:

There are important national security interests in the FBI and others in the Intelligence Community getting access to these materials. According to NARA, among the materials in the boxes are over 100 documents with classification markings, comprising more than 700 pages. Some include the highest levels of classification, including Special Access Program (SAP) materials. Access to the materials is not only necessary for purposes of our ongoing criminal investigation, but the Executive Branch must also conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps. Accordingly, we are seeking immediate access to these materials so as to facilitate the necessary assessments that need to be conducted within the Executive Branch.

See id.

On the same date that DOJ sent this correspondence, counsel for the former President requested an additional extension before the materials were provided to the FBI and stated that in the event that another extension was not granted, the letter should be construed as “‘a protective assertion of executive privilege made by counsel for the former President.’” Id. In its May 10 response, NARA rejected both of counsel’s requests. First, NARA noted that significant time—four weeks—had elapsed since NARA first informed counsel of its intent to provide the documents to the FBI. Id. Second, NARA stated that the former President could not assert executive privilege to prevent others within the Executive Branch from reviewing the documents, calling that decision “not a close one.” Id. at 3. NARA rejected on the same basis counsel’s “‘protective assertion’” of privilege. Id. at 3-4. Accordingly, NARA informed counsel that it would provide the FBI access to the records beginning as early as Thursday, May 12, 2022. Id. at 4. Although the former President could have taken legal action prior to May 12 to attempt to block the FBI’s access to the documents in the Fifteen Boxes, he did not do so.

Again, Cannon simply ignores that these issues were resolved in May.

She also ignores something Julie Edelstein said in the hearing before her: that the government waited before accessing the 15 boxes turned over in January to give Trump a chance to claim Executive Privilege, which he never did.

Also notably, that letter was provided on May 10th. Purposefully, we waited a few days before beginning the FBI’s review of that material to give the Plaintiff the remedy he could have sought at that time, which was to bring a suit in the District of Colombia to assert executive privilege over those materials. He did not.

Aileen Cannon knows Joe Biden has already weighed in on the EP issue, but she pretends he hasn’t and decides that she, Aileen Cannon, must review hypothetical claims of EP raised against the Executive branch.

Stealing classified documents is not immediately incriminating

One of the funnier moves Cannon makes is in claiming that the seizure of these documents two months after Trump swore he had turned over all documents marked classified in his possession is not immediately incriminating.

Importantly, after DOJ released this picture, Trump complained that FBI took a picture showing the documents in question in a condition other than he stored them in, a clear admission he had possessed them. Effectively, he has already confessed to the crime.

And it’s not just him either. In the hearing, Jim Trusty scoffed that showing smoking gun proof that DOJ caught Trump with documents that his Custodian of Records swore he did not have would be relevant to the question of a Special Master.

You even have what happened two days ago, the insertion in a motion about the special master of a perfectly staged photograph of classified covers on documents. I mean, how that was supposed to help the Court decide the issue of special master is beyond me.

Trump and his lawyers have admitted that these documents were seized at Mar-a-Lago.

That’s relevant to an invocation of an 11th Circuit precedent ruling that Jay Bratt made in the hearing. someone does not have standing to make a Rule 41(g) motion over material he obtained via crime.

The sort of standing or jurisdiction that you have to have right now pre-indictment as set forth in Rule 41(g), as set forth in the Howell case, and as I’m about to talk with respect to the equity jurisdiction Bennett case that Judge Rosenbaum decided when she was a judge here, that is very limited. And whether you call it “standing” or “jurisdiction,” they do not have it here. And in order to get the jurisdiction or standing under Rule 41(g), that is a key requirement. In fact, it is the key requirement, that you have a possessory interest in a property. If, at a later point, the Fourth Amendment — potential Fourth Amendment violations need to be vindicated, that is done through a motion on suppression. It is not done through a Rule 41(g) motion pre-indictment.


There are also, you know, three I think very important, overarching factors that the courts emphasize when a judge in your position is being asked to exercise equity jurisdiction for return of property. One is that the exercise of that jurisdiction must be with caution and restraint, and it must be exercised only to prevent a manifest injustice; and the third, any time a party comes to equity, the party must have clean hands. And here, the former President being in unlawful possession of classified and other Presidential records, that is a text book example of unclean hands.

Cannon argues that because Howell pertained to someone who had already pled guilty, it is inapt here. Note that she relies, again, on the personal documents she herself refused to let DOJ share with Trump’s lawyers.

At the hearing, the Government argued that the equitable concept of “unclean hands” bars Plaintiff from moving under Rule 41(g), citing United States v. Howell, 425 F.3d 971, 974 (11th Cir. 2005) (“[I]n order for a district court to grant a Rule 41(g) motion, the owner of the property must have clean hands.”). Howell involved a defendant who pled guilty to conspiring to distribute cocaine and then sought the return of $140,000 in government-issued funds that were seized from him following a drug sale to a confidential source. Id. at 972–73. That case is not factually analogous to the circumstances presented and does not provide a basis to decline to exercise equitable jurisdiction here. Plaintiff has not pled guilty to any crimes; the Government has not clearly explained how Plaintiff’s hands are unclean with respect to the personal materials seized; and in any event, this is not a situation in which there is no room to doubt the immediately apparent incriminating nature of the seized material, as in the case of the sale of cocaine.

Cannon is all worked up over whether Trump is guilty, and not that under Howell, Trump has an affirmative requirement to prove he owns the stuff seized before she can grant him relief.

In order for an owner of property to invoke Rule 41(g), he must show that he had a possessory interest in the property seized by the government.

But even the unclean hands language requires analysis, first, of whether Trump legally possessed the items at issue.

Furthermore, in order for a district court to grant a Rule 41(g) motion, the owner of the property must have clean hands. See Gaudiosi v. Mellon, 269 F.2d 873, 881-82 (3d Cir.1959)(stating, no principle is better settled than the maxim that he who comes into equity must come with “clean hands” and keep them clean throughout the course of the litigation, and that if he violates this rule, he must be denied all relief whatever may have been the merits of his claim.)

The doctrine of “unclean hands” is an equitable test that is used by courts in deciding equitable fate.

As Cannon has already conceded, that question can only be determined in the DC District, not by a Special Master in SDFL.

Remember: Trump might not even own the things (identified in the privilege report and so unavailable to Bratt to address) on which Cannon has rested all her analysis. It could well be White House Counsel materials about the Mazars case or White House Physician materials about his near-death from COVID. Trump hasn’t made the argument they are his either (he instead relied on the passports that she ignored).

But based on first, her refusal to let DOJ share that material with Trump, and then her declaration that he does own it, Cannon has overturned the property structure before her, the 11,000 stolen government documents and the Executive Privilege that Biden has already, by delegation, asserted. Rather than forcing Trump to prove he owns this property, she’s just giving him default ownership of it.

In her desperation to shut down a criminal investigation into the theft of government documents, including highly classified ones, Aileen Cannon engages in large-scale appropriation of taxpayer owned property.

Update: Thanks for the corrections that Cannon was born in Colombia, not Cuba.

239 replies
  1. Zinsky says:

    Boom! Thank you for the ultimate takedown of Judge Cannon’s egregious ruling. I have nothing to add, other than I hope both Nancy Pelosi and Chuck Schumer take to the floor of the House and the Senate this morning and loudly call for expansion of the Supreme Court, as a remedy to the obvious right-wing bias and stacking that Mitch McConnell has accomplished.

    • David F. Snyder says:

      And, may there be a call on the House floor for impeachment of Aileen Cannon and her twisted ‘logic’.

      • bmaz says:

        What a completely useless waste of time that would be. There is not a chance in hell Pelosi authorizes that.

        • Frank Anon says:

          I would suppose then that the only remedy the people have with Judge Cannon is 40 or 50 years more of seemingly illegal jurisprudence?

        • Rugger9 says:

          The House can impeach all it wants, but to remove Cannon would take conviction in the Senate (2/3 vote, meaning 17 GQPs have to cross) which is not happening. Warily, I think what bmaz is saying is that the effort is wasted on Cannon. Save it for those SCOTUS hacks if they choose to repudiate their prior 8-1 vote against Individual-1. And, expand the court to at least 11 so a Justice oversees a single CA district.

        • Troutwaxer says:

          I don’t think the effort is wasted on Cannon. First, because you can beat the rap, but you can’t beat the ride, and there would be a lot of public discussion about her ruling and its manifest unfairness. Second, because the impeachment investigation might find something for which she can be taken down and possibly even arrested. Third, because it shows the Democratic Party fighting against corruption, which I think would be a very good thing. Fourth, because it’s clear to me at least that she’s an accessory after the fact. She may have immunity, but I want those words – “accessory after the fact” – spoken about her in public for the next six months. She’s filth and she needs to be embarrassed, shamed, and if possible driven out of office.

          Unfortunately, I couldn’t find a shorter version of this, but the first few seconds are very… Trumpist.


        • ernesto1581 says:

          so does Biden reassert or clarify his position on EP, or would that just be wading into Cannon’s manure pit? in other words, quod dixit dixit and move on?

        • Rugger9 says:

          Biden already did, and SCOTUS agreed 8-1 (Thomas, of course using 20-20 hindsight). However, nothing stops Biden from posting it again for Cannon’s benefit (and 11CA, and SCOTUS).

        • flounder says:

          Every time I read Cannon say things like the Executive Branch didn’t weigh in on EP, I think to myself, would it be so hard for the White House to say:
          “we aren’t getting involved here, but to the extent the judge is saying we punted, that’s completely untrue, we let NARA handle it, they said we have the EP here, and we accept that as the correct reading.”

        • gmoke says:

          I believe the phrase “laughing out of court” might be more useful than the probably impossible idea of impeachment. If Judge Cannon’s ruling is ridiculed strongly enough within the legal community, it just might convince her to step down voluntarily.

          A long shot but certainly a little less of a long shot than impeachment.

    • Al_01DEC2020_1125h says:

      Another Trump appointee abusing the justice system for Trump. 41 year old punk unqualified jurist. Anyone who read the submission on behalf of Trump called the papers a joke. Low intelligence judge thinks otherwise.

      [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. You have been asked previously to use a more differentiated username when you comment next as we have several community members named Albert/Al/Bert/Alberta; until you return with a site standard compliant name your username has been temporarily changed to reflect the date/time of your first known comment. Please also omit any information in the URL field as you did not include a home website with your first comment. Thanks. /~Rayne]

    • Commentmonger says:

      See, here’s the problem right at the first. The DOJ told her that this is an anomaly, and so it must be reviewed for a second opinion.

      I truly believe she doesn’t understand what they wrote, what they said, or what it all means.

      >> the Court can exercise a second or anomalous jurisdiction.

      • Yorkville Kangaroo says:

        She understands just fine. She chooses not to accept the legal arguments under a bunch of irrational and imagined (both by the dufus counsel and herself) arguments.

  2. Desider says:

    Reminds me i robbed a bank for $100k or so, but mixed in some leftover pesos from a trip to Cozumel plus some guy’s wallet & passport i lifted at the airport, obviously not part of the heist, so the FBI and bank couldn’t take any of it back due to my 4th Amendment rights, and I was Scott free. Then I woke up…

  3. Peterr says:

    Given what you’ve laid out here, I wonder if the DOJ might move to shift this case to the DC District Court.

    “Your honor, while the Plaintiffs came to you rather than the DC District Court, it is clear from your ruling that you believe the DC District is central to the issues at play here, because of the Presidential Records Act. We ask, therefore, that you dismiss the Plaintiff’s case before you because it was filed in an improper venue. Alternatively, should you decline to dismiss, we ask that you transfer the case to the court of Judge Beryl Howell of the DC District, who is overseeing the grand jury and other elements of the investigation that led to us seeking the search warrant in the first place.”

    IANAL, and am not sure that it is possible to refer a case in this way, but dismissing and telling Team Trump to file the case in DC would certainly be in keeping with Cannon’s reliance on the PRA.

    Of course, she will never do that.

    • emptywheel says:

      I do think they might try to move this to DC. I don’t know how.

      I also think at a bare minimum they need to ask her for clarification on the damage assessment and that’s another opportunity to get before her and also lay out the criminal damage of this. I didn’t note it but she nowhere grapples with the crimes at issue.

      • bmaz says:

        I don’t know how either. Have a couple of feelers out, but it may come down to DOJ filing yet another new action in DC and demanding transfer/consolidation. The PRA seems pretty clear as to forum/jurisdiction. But get it in front of Beryl Howell.

        • Former AFPD says:

          I have been thinking about a transfer of jurisdiction as well. I keep coming back to the DOJ indicting TFG in DC on a single or two counts of possession of classified documents surrendered before the MAL search. File a motion to transfer jurisdiction of the FL subsidiary proceedings along with the indictment because the FL “case” is related to the indictment. Also seek to inquire into and disqualify any counsel with conflicting interests. The conflicts seem to fall squarely into some of the factual findings which have been made in the opinion. I remind myself that there is a great deal of information and evidence about which I am completely ignorant so these thoughts are simply uninformed speculation. The DOJ has been provided with a great deal of legal and factual error in this opinion. We will see what avenue(s) they chose to move forward.

        • bmaz says:

          That is fairly close to what I have been pondering actually. And criminal takes precedence, so any DC indictment arguably would do it and get it out of SDFL. But I do not know those jurisdictions well enough to say for sure. The Trumpers would howl, but they are going to anyway.

        • BroD says:

          I wouldn’t mind the howling–in fact, I’m rather eager for it.
          This IS a national security emergency, after all.

        • John Lehman says:

          “Trumpers would howl”…isn’t that what coyotes do? You live in the Southwest, you must be familiar with coyotes and Native American Coyote tails” (pun intended).

          Northwest Nez Perce friend explained Nez Perce coyote storytelling clearly…always overly elaborate schemes that always gets himself in trouble…just like Looney Tune’s Wile E. Coyote.

        • Desider says:

          Once upon a time “Howl” was required undergrad reading, typically live lengthy recitations for the uninitiated. Maybe time to update the legacy?

        • bmaz says:

          Why not straight on at the crimes specified in the warrant? The only reason the warrant was issued in SDFL is because that is where the docs and evidence were. Don’t give Cannon an out. Can supersede later.

        • bmaz says:

          Gots to get it out of the Sunshine State. Turn the tables (as should have been done from the start), and make them play on the proper ground. I hate everything about this case.

        • bmaz says:

          Theoretically, I don’t think so because FL would be subsumed into DC, so only one jurisdiction. But that is a complicated question, and I just do not know the answer.

        • Yorkville Kangaroo says:

          I’ve been pondering another reason why DoJ might mount a case in FL bmaz. Conviction in FL doesn’t allow for a Presidential pardon.

          Yea or nay?

          P.S. unfortunately The Donald could later be bailed out by the GOP king-in-waiting as a ‘favor’ for keeping out of the way in 2024.

        • TooLoose LeTruck says:

          Ha! I’m actually learning!

          I’ve been wondering about this very point right here…

          Yes, it does appear Cannon has managed to snarl up the MAL materials, but what about the items Trump had taken and already returned?

          And yes, I believe he will howl publicly that ‘everything’ s/b covered by Cannon’s ruling, for the sake of those in the cheap seats…

          And I took the time last night to read an amicus brief that Norm Eisen, amongst others, had signed on to that was opposed to Trump’s motion, and I actually think I understood most of it…

          I gotta say, again, that this site provides one w/ a terrific legal education, daily.

        • ergo says:

          it honestly reminds me of Groklaw. I basically never even paid attention or cared about any legal documents as a layman, and while I’m still a layman, they’re far more interesting/readable now after reading all the good legal analysis and picking up things here and there.

        • Rugger9 says:

          Perhaps a bifurcation motion since there are two questions puzzling Judge Cannon. Why couldn’t 11CA order that remedy on its own given the text of the PRA and Cannon’s acknowledgement that the DCC owns all PRA questions?

          I did enjoy the standing argument EW laid out, it’s a very typical way for corporations to hide ownership when inconvenient things happen by burying them in layers. I would guess Individual-1 is really saying its is personal stuff because it was found in his office and/or his ‘private locker’. However, the club ownership layering would tell me if I were a judge that TFG would have to prove direct ownership starting with how he has ‘exclusive’ private use of those spaces and he can’t do that IMHO.

        • earlofhuntingdon says:

          Trump Org, incorporated in NY, might wholly own a Florida incorporated business. But that does not mean it does business or is subject to jurisdiction in FL, or that the FL business does business in or is subject to jurisdiction in NY.

          In a well-managed organization, it would typically mean the opposite, an outcome specifically intended to manage tax and jurisdictional issues.

        • Ginevra diBenci says:

          Thanks, Earl. So no way this goes to NY under the Trump Org umbrella? (I’m just wondering about the “well-managed organization” part of your helpful reply.)

        • Yorkville Kangaroo says:

          Only if the Trump Organisation is directly involved and there’s absolutely nothing that we’ve seen here to suggest that.

  4. NeoGeoHa says:

    Seems to my non-attorney eyes, that this ruling would wither quickly and be overturned upon appeal. This is the kind of ruling that the appeals process is for. To right an egregious wrong committed by a judge/court. I am also guessing that the DOJ has a voluminous appeals filing all ready to go before Friday’s hearing if they in-fact do appeal and not try to live with this flawed ruling.

    • Rugger9 says:

      As generally competent and prepared Garland’s DoJ has been throughout these investigations, when Cannon signaled early last week she was going to appoint the SM I have no doubt the motion boilerplate was being drafted. All the DoJ needed to know is what arguments Cannon wanted to make, the precedents cited, the footnotes and the rulings that resulted. They may have been surprised by the injunction part but I doubt it given how MAGA judges routinely overstepped the boundaries on remedies favoring their preferred party.

    • Former AFPD says:

      Despite the many legitimate criticisms of Judge Cannon’s order detailed here and elsewhere, there is no quick appellate reversal in federal court. The factual and legal errors presented by the Cannon opinion are complex. A party can request expedited review in the federal appellate court. However, even expedited review can take months. There’s briefing by both parties, oral argument and then a written opinion. The potential for review in the US Supreme Court also looms in the background. Factual errors and errors of law don’t always translate into reversal.

      • Arteberry says:

        The essential step is immediately moving the district court for a stay, pending appeal, of the injunction against further DoJ investigation. On the assumption that motion will be denied, DoJ must also move the Court of Appeal for a stay. The stay motion to 11 Cir. would at least have some chance of success. The overall length of the appellate process is not critical as long as DoJ is able to continue its investigation in the meantime. If DoJ cannot obtain a stay of the injunction, it needs to consider options other than the direct appeal.

        • Former AFPD says:

          Yes, a request for a stay of the SDFL – US District Court for the Southern District of Florida for the non lawyers – order is critical. I imagine the DOJ would also request that all proceedings in that court be held in abeyance while appellate review is sought. These are very typical motions under the circumstances. If Judge Cannon denies the motions, they are filed in the appellate court, as Arteberry stated.

  5. flounder says:

    “Cannon argues that because Howell pertained to someone who had already pled guilty, it is inapt here.”
    Cannon is basically saying that the drug dealer should have gotten the $140,000 back pre trial on the premise it was clean, and the government should have had to claw it back post conviction.

  6. wetzel says:

    Critical reading is an art of the imagination. Each element becomes other ideas while you read. You step back and take a bird’s eye view. Marcy, you are the world’s best reader. What a wonderful post – like climbing the mountain to kung fu village. I am in awe.

    For my part, it has helped me psychologically to have your analysis of this shameful and tragic decision. Twitter is consoling itself that it’s only a delay, but Cannon’s ruling gives me the same sick feeling I had watching the Jan 6 riot unfold. It is disgusting like a black sun rising for such a text to be produced by a United States District Judge.

    Cannon is like the fascist propagandists on Russian state TV. She is a highly intelligent person promulgating willful stupidity. Cannon has the mindset of obstruction of justice. She is protecting Trump above all.

    I think this ruling is evidence the coup plot is ongoing. It’s tragic for the country. Shame and professional penalty will not attach. Judge Cannon can safely compartment herself in comfortable lies and her position. Judge Cannon is a made woman, like Bill Barr is a made man. The corrupt acts work like a ratchet creating the new fascist norms whether it is rioting or judges acting in bad faith.

    • Frank Anon says:

      If the coup plot is ongoing, who is leading it? Do you think Judge Cannon sat in chambers with her clerks and created this ruling in whole, or did she speak with someone about how to craft it, and if so who? Was there a Federalist Society crash cart ready to resurrect Trump?

      • bmaz says:

        Good grief, the sheer amount of unfounded and unsupported wild bullshit conspiracy theories that have infected and infested this site lately is truly bewildering and depressing. You have just added a couple of contributions to that. WHY? Based on what exactly?

        • Charles R. Conway says:

          I agree, except to the extent that her clerks, themselves future Alitos, were certainly involved in research & writing.

        • Frank Anon says:

          We are actually saying the same thing. The previous commentator wetzel had said “the evidence of a coup plot is ongoing”. I was challenging that assumption by asking questions to highlight what I felt was the absurdity. People constantly say stuff like that, but can never articulate how such a coup would be operating.

      • wetzel says:

        The coup plot now is more than Trump. It’s a sociological phenomenon of compliance and a metastasizing realization from the rioters to the law offices that the value of due process and democracy are only instrumental to power. Practically all national GOP representatives are docile bodies to the subversion of democracy by whoever runs their party. They have demonstrated they will be a fascist instrument. Congressmen and Senators are either in a terror state or they are expressing MAGA ideas. There has been a general abandonment of reason for madness. Truth is fiction and the GOP is now turnkey fascist. It’s a dark view, whether Trump runs the GOP or not. Maybe someone in that party can bring it back to accepting due process and democratic outcomes, but who will it be? Mitt Romney? Lol

      • Mister Sterling says:

        I would not say that this is part of any coup attempt. It’s a foolish judge who is spinning her wheels, doing the work of Trump’s legal team, pausing a DOJ criminal investigation by at least a month, and sticking her court into something that will ultimately be decided by the DC circuit. In other words, this judge has thrown a spanner into the works of this case, delaying it. Nothing more. Trump’s chances of being elected have not increased. His chances of ousting Brandon in a coup haven’t gone up one bit.

        • bmaz says:

          Good fucking gawd. You two think it is ALL PART OF THE COUP?

          Again, I ask, when did people like you two show up to turn this once san site and comment section into bogus conspiracy theory land? And please try to not do that.

        • Ravenclaw says:

          At risk of being pricked, I don’t think that’s what Mister Sterling said. My reading is that he said it is *not* part of any coup, that it *is* a judge causing delay (which seems 100% true), and that it will have no effect other than to create such a delay. I don’t see the conspiratorial thinking in that. The bit about ‘doing the work of T’s legal team’ seems metaphorical rather than literal. Mister Sterling will correct me if I’m wrong on that.

        • Yorkville Kangaroo says:

          “The bit about ‘doing the work of T’s legal team’ seems metaphorical rather than literal.”

          I agree with bmaz that talk of conspiracies ought to be sent straight off to Q Anon hell but Cannon is, in fact, doing what The Donald’s legal team ought to be doing by pursuing relief that was not even argued by counsel at outlined by Marcy.

    • emptywheel says:

      I will say this, I appreciate more that this opinion is not stupid. It’s crafted very well to do what she wants to do, to interfere with a criminal prosecution.

      • bmaz says:

        Oh, I dunno, strikes me as beyond stupid. In fairness, I guess, she had to work on an accelerated schedule. And she is a nutcase. It could have been massaged far better.

      • Sans Serf says:

        Are there any criminal statues by which prosecutors could bring charges against a judge for obstruction where the judge takes some extraordinary actions to kill an investigation? I am not saying it is appropriate in this case, but I wonder how far a judge can go to run interference before they have criminal liability.

      • Clare Kelly says:

        Once again, thank you for your peerless, erudite, and cogent analysis delivered with the relief of civil, sardonic wit on matters of alarming import.

      • Peterr says:

        @SecretsandLaws has a really good thread on the “Top 10 reasons DOJ will appeal Cannon’s order.” #6 caught my eye, as it goes against something that was said here a couple threads back (by bmaz, perhaps?):

        6. Did I mention the docs are highly classified? There’s no precedent for this in a civil case. There’s no CIPA. SM is in charge of who gets to see them? Can Trump bring in witnesses? In a S.D. Fla. SCIF? Wild west.

        The whole thread is worth a read. With Secrets and Laws’ stated background as a former CIA attorney, his comment about no CIPA in civil cases is big.

        • SMF88011 says:

          As someone that has had a security clearance and has a good idea of the types of material contained in SCI, it is pure insanity to appoint a SM. First off – nobody will agree to who is going to be the SM that has the clearance background necessary for them to be cleared to this level; if they have, they will know that Trump was wrong in taking them with him to MAL. That will be a non-starter for Trump’s team. Team Trump will want a person that has never had a clearance previously, who will show them ALL documents that the Government has, AND will totally be unacceptable to the DOJ. Cannon’s favoritism will be on display and she will name the Trump desired SM no matter what.

          I really hope that they can get this moved to DC.

        • Paulka says:

          So, it seems, it will take a while to sort out the who and how and what fors.

          IoW delay serving Trump’s interest.

          To paraphrase a general concept on Republican policies: Delay is not a bug it is a feature.

        • bmaz says:

          Not all docs are highly classified. But there is no CIPA for civil. I don’t think the docs are in SDFL anymore. Best I can figure, they are in a secure NARA facility in the general DC area, but that is unclear

      • Ginevra diBenci says:

        I’m glad you interjected that, Dr. W. After noting the clarity of Cannon’s prose yesterday, I wondered if it meant I taught creative writing for too long.

        While her legal arguments felt shoddy and the reasoning faltering/forced, the craft did strike me as proficient.

      • prk60091 says:

        Marcy you are the only commentator I have read to state that the opinion is not stupid. I agree with that.
        As you have noted it is well crafted to “slow the roll”. TFG’s semi-competent lawyers have managed to file a civil action which seemingly is a word salad-and yet gave the Court enough hooks to hang several hats on to ‘to interfere with a criminal prosecution.’ assuming that there is a real lawyer with a real brain ‘helping’ TFG’s ‘team- what would the next move be.

    • Troutwaxer says:

      I wouldn’t say “coup plot” so much as “horrific corruption,” but I get your point. We’re seeing another battle in the war, that’s for sure.

  7. Jimmy Anderson says:

    I’m sorry if I’m being dense.
    Does Judge Cannon’s ruling apply to just the documents and items seized in August, and not the other documentation previously returned to NARA (January, May) ‘voluntarily’ by Trump?
    I wonder if so, whether DOJ has enough evidence to proceed with at least part of its investigation and potential indictment of Trump without these materials.

    • Peterr says:

      You are correct. The investigation in general can continue, but without the use (for the time being) of the seized materials.

      • bmaz says:

        That is a huge problem though. If you are DOJ, you want to interview witnesses intelligently and fully, not to mention make a full presentation to the GJ. That is more dead in the water than people think. Especially when the preening J6 Committee is still jerking DOJ off too.

        • Yorkville Kangaroo says:

          How about simple ‘unauthorised possession of X number of NDI documents’? More bang for your buck and doesn’t allow for The Donald and his hacks to say, “See? We were found INNOCENT if having 11,000 documents,” just in case they all get shrouded in EP arguments for the next decade.

      • Rayne says:

        Thank you. You saved me from having to post a stripped-down link. Sometimes the gift links aren’t worth all the tracking that comes with them.

        For community members: Gift links from firewalled media identify the giver, their device, the site where they shared that gift, and then make a connection between every person who uses that link and the giver — at a minimum. There may be more information collected from the gift link’s user.

      • Super Nintendo Chalmers says:

        HAD he declassifed the stolen papers, there would have been a paper trail like when Biden declassified 9/11 material via executive order.

        • SMF88011 says:

          Those things were not declassified. It is as simple as that. 18 members of his staff said they never heard of the blanket “declassify everything that goes to the residence” and most would have heard about it.
          Further, the types of things identified on the cover sheets are not the type of things that are declassified in any circumstance. Why? It will endanger our own agents, methods and sources. If something like that is “declassified”, a FOIA request would allow any journalist to gather the identifications and methods for anyone they wanted – including Russia, China, and such.

          Trump got caught with his hand in the candy jar. Cannon is now saying it doesn’t matter that he got caught – he gets to eat the cookies and probably won’t get a smack on the wrist either.

      • Alan Charbonneau says:

        Of course, Bill Barr is trying to clean up his reputation with this, but even so, on FOX, his argument will be heard and it’s similar to Steve Vladeck’s:

        “I think it’s highly improbable, and second, if in fact he sort of stood over scores of boxes, not really knowing what was in them and said, ‘I hereby declassify everything in here,’ that would be such an abuse and that shows such recklessness, it’s almost worse than taking the documents,”

        The rallying-around-the-moron that FOX did after the “raid”, is fading away. I think they are slowly backing away so they can complete the pivot to DeSantis they started before the warrant was executed.

        p.s. O/T but Roe/Dobbs is driving up rates of female voter registrations. “…new female voters outnumbered males by at least 10 percentage points in nine U.S. states as of mid-August”


  8. PeterS says:

    I called this judge “loose” over a week ago; little did I know quite how detached from established legal principles her ruling would be.

    Perhaps she’s a fan of the tv series “Spiral” and thinks the US needs a system like in France, where a magistrate works alongside the police and oversees criminal investigations.


    • SteveB says:

      I note that during the hearing before Cannon, Bratt felt compelled to remind the judge of a basic principle she should observe that in the proceedings before her the warrant issued by the Magistrate Judge should be treated as entirely lawfully obtained and lawful in its scope and terms.

      Implicit in that, but not expressly stated, that the legal processes preceding the warrant (the grand jury subpoenas) which as a matter of both chronology and fact prepared the foundation for the probable cause for the warrant, should also be treated by Cannon as lawful and unimpeachable by her in the proceedings before her.
      The subpoenas are premised upon FPOTUS not having property in the Presidential records at issue, nor any colourable right or privileges in them, nor was any such asserted by FPOTUS in a timely fashion.

      Cannon sets herself up as a maverick examining magistrate a la Spiral, and particularly with respect to the question of Former still having the possibility of asserting EP, so wilfully dodges the respect she ought to be giving to the determinations already made in legal proceedings through which proper oversight of prosecutorial actions in fact occurred, as per the US legal and constitutional system.


      • Commentmonger says:

        She doesn’t want to be a maverick. She wants to be a Problem Solver. Probably had a gig as a failed mediator prior to deciding to go get a judge seat. That’s the ticket. Federalist Society has interesting newsletters and events.

        • Ravenclaw says:

          No. She clerked for a federal judge, worked at a law firm for a few years, then spent 7 years as an assistant U.S. attorney. Still a bit ‘wet behind the ears’ for her current position, but real experience in the criminal justice system at a pretty high level, not just some gig in a tangentially relevant line of work. Sure, her recent ruling is partisan trash, but let’s keep our facts straight.

  9. JonW says:

    I’ve been following this blog since the “Russia Hoax”, and one thing that continues to astound me in reading the coverage here is how Trump can cause the GQP to completely flip on their ideology. He reminds me of Sauron or Melkor, he corrupts everything he touches. Or maybe it’s that he exposes their inner corruption that was always there? In this instance, the party of “law and order” is suddenly all for criminality, and it’s time to defund and defang law enforcement.

    • Opiwan says:

      The GOP has been about “justice for thee, yet not for me” for going on 50 years, now. Just to cite two very simple contrasts:
      1. Corporate welfare (the most recent being the PPP loans) requires no oversight and abusers that are caught only have to “pay back” what they borrowed (if that), individual welfare requires weekly reporting in and immediate termination of benefits for even the most minor administrative error or violation.
      2. White collar crimes that affect millions carry little punishment, while drug possession carries mandatory decade-or-longer sentences.

      The song remains the same.

      • Troutwaxer says:

        At some point a politician or political party will make “destroying corruption” their stated policy and be both elected and loved by everyone… even if they shouldn’t be. Hmmm… maybe it’s already happened? Drain the swamp much?

    • Knox Bronson says:

      It seems like there’s an endless supply of people who will put their careers and reputations on the line in service to his always-criminal machinations. They are forever tainted. They have seen others thrown under the bus, yet they must think it won’t happen to them. It absolutely baffles me.
      I believe he must the greatest confidence man in history.

    • Tom Marney says:

      I believe, on the basis of circumstantial evidence and common sense, that Russian intelligence has been looking for the next Hitler pretty much since the demise of the original one. The objective, of course, would be to assassinate him. They got interested in Trump in the late eighties when the Soviet Union was in terminal decline and Trump himself only a faint precursor of what he has now become.

      The Soviet Union collapsed and was replaced first by an amoral and kleptocratic oligarchy, then by outright fascism. As we all know, though, many in the former Soviet intelligence services continued to practice their vocation even as their interest turned from fighting fascism to promoting it. By 2016, they’d found their perfect weapon against democratic America, Putin decided to deploy it, and the rest is history.

      We’ll probably never know whether the Russians caused Trump to win the election, but in some ways, it’s beside the point. Putin had to have known that the odds against Trump actually winning the election were pretty astronomical. Clearly, he made the calculation that the damage that Trump could do to the US and the west– even as a failed presidential candidate– was worth enduring whatever the Hillary Clinton administration might do in response. Everything that’s happened since then has shown the correctness of Putin’s judgment on that. No wonder he was arrogant enough to invade Ukraine.

      Trump really is the Golden Child of American political demagoguery. The Russians were the first to figure it out, but it ought to be obvious to everyone by now.

    • Commentmonger says:

      Instead of King Cyrus the evangelicals want, he is reincarnated Loki, the God of Mischief. The Commander in Mis-Chief.

  10. jeco says:

    I feel this lawless ruling has to be appealed, on principal first and secondly the SM and their rulings will be similarly detached from law & precedent. Cannon is on a mission to sabotage serious criminal investigation.

    I thought Loosey Cannon was from Colombia (country) but being a Batista Cuban fits.

    The special treatment accorded trump for his “reputation” (twice impeached) shouldn’t shield his confederates from continuing investigation – or investigation of other locations and items, Badminster, trump tower and electronics if the facts determined to date warrant it – but not anywhere that Cannon can reach.

      • bmaz says:

        As I said to Mr. Snyder previously, that would be one of the most colossal stupid wastes of critical Congressional resources in history. JFC folks.

      • Mister Sterling says:

        That’s a non-starter. First of all, most MSNBC-watching Democrats would have an impossible time comprehending what judge Cannon has done. We elites here on this site get it and we’re a nerdy, niche group. So there’s no public support to impeach this judge. Second, Pelosi wouldn’t stand for it. Non-starter.

        • Rugger9 says:

          Removal of Cannon requires 2/3 conviction in the Senate which means 17 GOP must cross over and join all of the Ds. Politically that won’t happen and that’s why Pelosi will not waste her time on a smaller fish like Cannon. There are more important priorities and Cannon’s ruling can be addressed elsewhere.

          If Judge Cannon progresses along like this Congress can decide to define what is meant by the “good behavior” clause but that definition must be done carefully to limit twisting opportunities.

        • Troutwaxer says:

          Explaining what she’s done is easy:

          “If you or I was was caught with even a single classified document we’d be in jail now, wouldn’t get bail, and be looking at 5-10 years per document.

          “Trump appealed to a corrupt judge he appointed himself and she’s letting him get away with breaking the law. This is putting our national security at risk so Trump can get special treatment.”

          Note that this is not a perfect explanation, but it hits the important points. Once that’s sunk home the deeper points can be explained.

        • Yorkville Kangaroo says:

          Fortunately (and unfortunately), the Judicial branch is separate from the Legislative branch. This allowed it to remain removed from this sort of firing squad behavior.

          UNfortunately, both major parties long ago polticised the Judiciary and now we have what we have.

          The Founding Fathers would be turning in their graves.

  11. David F. Snyder says:

    If this ruling is allowed to stand, does this mean a thief can now claim legal possession of stolen goods?

    Second question: is Aileen Cannon of sound mind? Doesn’t sound like it.

    • jeco says:

      And we have 5 individuals with Executive Privilege, one current President and 4 formers and this President and trump in conflict over their privilege on this issue with a local judge deciding who has primacy. Does the sitting President have primacy, or is it based on seniority with sitting President low man?

      By the way, trump is the only former president denied briefings because he’s sensibly considered a security risk.

        • Troutwaxer says:

          Maybe. On the other hand, she’s had five years to notice that everything Trump touches dies, and that will ultimately include her career.

  12. harpie says:

    Trump-Appointed Judge Courts Controversy With Mar-a-Lago Order
    – Judge Aileen Cannon gave the former president a big legal win
    – Ruling could pose significant hurdle to DOJ’s investigation https://www.bloomberg.com/news/articles/2022-09-06/trump-appointed-judge-courts-controversy-with-mar-a-lago-order#xj4y7vzkg
    Zoe Tillman September 6, 2022 at 7:00 AM

    When US District Judge Aileen Cannon was up for Senate confirmation in 2020, she was pointedly asked whether she’d had discussions about loyalty to then-President Donald Trump before he nominated her to Florida’s federal bench.

    “No,” Cannon responded to US Senator Dianne Feinstein. […]

    Cannon, a former federal prosecutor, only just cleared the American Bar Association’s recommendation that judicial nominees have at least 12 years of experience; she was 39 when Trump nominated her for a lifetime appointment. […]

    After graduating [U Michigan] law school in 2007, Cannon clerked for a Republican-appointed federal appeals court judge and then spent three years as an associate with Gibson, Dunn & Crutcher in Washington. In 2013, she joined the US attorney’s office for the Southern District of Florida.

    Cannon shared in her Senate questionnaire that Florida Senator Marco Rubio’s office reached out to her about applying for a district court seat in 2019. The vetting process included meetings with the White House counsel’s office but not Trump himself, she said.

    She was confirmed by a 56-21 vote on Nov. 12, 2020 — just five days after major media called the election for Joe Biden — as part of a post-election push by then-Majority Leader Mitch McConnell to move through Trump’s remaining nominees while Republicans still held the Senate.

    Until now, her most politically charged case involved a man who made violent threats against two prominent Democrats — House Speaker Nancy Pelosi and Representative Alexandria Ocasio-Cortez. Prosecutors asked for a 3 1/2 years sentence; Cannon gave him 18 months.

  13. Jenny says:

    Thank you Dr. Marcy. So frustrating and fascinating at the same time.
    Is Cannon just inexperienced, unqualified or covering for Trump? Or all three?

    “We must maintain law and order at the highest level or we will cease to have a country, 100 percent. We will cease to have a country. I am the law and order candidate.” Trump, 2016 Virginia Beach, VA

    • Rugger9 says:

      By which Individual-1 meant that he is the law and the order. With malignant narcissists the right questions must be asked to limit opportunities for parsing and hairsplitting later.

  14. Amicus says:

    There are certainly two possibilities to get key issues decided in the DC district and Marcy touched on one of them yesterday. As I was out walking after reading the abomination of the court’s order (a masterpiece in temporizing, vagueness, invented evidence (Trump submitted none, statement of counsel don’t count) etc. it occurred to me that NARA could seek a declaratory order (a “dec action”) as regards ownership of the property and the President could seek a dec order on executive privilege. There are potential pluses and minuses and how to frame this to get a clean legal ruling and not get tied up in discovery, but I suspect it could be done – the executive privilege claim is a pure issue of law, the government records issue is a pure issue of law – but there is then the issue of applying it to each and every item.

    But collateral actions don’t solve the problem of Cannon’s having exercised jurisdiction over the search (which again seems wrong to me, it should be Reinhart and or any necessary district court judge assigned to that matter). The enjoining of a criminal action (and the practical effect here is close as bmaz points out – how do you bring an indictment if you can’t use the documents) is extraordinary. The decision is, as many have noted, internally inconsistent – part of the executive branch can use the documents, another part cannot. It also suggests problems of impossibility – we have documents that cannot be moved or reviewed outside of a scif – the documents are unique and cannot be used by two different groups at the same time – and the documents are evidence, fingerprints and the like.
    But I just cannot get my head around the core point of how there is an irreparable injury that provides the basis to enjoin the criminal proceeding. Perhaps DOJ seeks a stay before Cannon or moves for reconsideration to bolster the evidentiary case on what is afoot by staying its investigation and how the FBI has to coordinate with ODNI. And to add Trump’s rally admissions on how he knew where the photographed documents were located. (Another troubling aspect of the decision is that the ordinary reader left with nothing but the document would have no real understanding of the issues afoot – the specific criminal charges, the evidence of obstruction and misrepresentations etc.) I am starting to ramble a bit but there is no adequate showing (indeed, no showing – no claim by Trump) that supports enjoining the criminal investigation. It is an outrage. Criminal defendants don’t get invited into DOJ’s investigations and federal judges ought not to controlling whether those investigations proceed, in the absence of any impropriety on the part of DOJ.

    • jhinx says:

      Excellent comment. I particularly like:

      “Criminal defendants don’t get invited into DOJ’s investigations…”

      I was thinking this the other day but couldn’t articulate it. It’s like Trump’s counsel wanted DOJ to show their hand so they could decide their next move. Turns out they could’ve saved some time and gone to Cannon earlier with whatever BS filing came to mind.

  15. Rapier says:

    How many pages long was this ruling? In how many days? Me thinks she had some help. A lot of help. Flood the zone with bullshit help. There are several thousand lawyers and tens of thousands of talkers and writers who will help.

    • PeterS says:

      She may have started writing the ruling 10 days ago, when she issued her initial order. Certainly, she seemed immune to 30 odd pages of solid legal submissions from the DOJ and a few hours of cogent oral argument in court.

  16. rosalind says:

    and we have 12 Dem Senators to thank for voting Cannon into her current position:

    Diane Feinstein (CA)
    Tom Carper (DE)
    Chris Coons (DE)
    Catherine Cortez Masto (NV)
    Maggie Hassan (NH)
    Doug Jones (AL)
    Tim Kaine (VA)
    Patrick Leahy (VT)
    Joe Manchin (WV)
    Chris Murphy (CT)
    Jacky Rosen (NV)
    Mark Warner (VA)

    Final vote was 56-21

    (Kyrsten Sinema (AZ) was at a corporate fundraiser that day and didn’t vote)

  17. Mister Sterling says:

    An infuriating decision. But I don’t think it’s worth appealing. Let Trump have this win and hope it is the last one in this case. A fluke. As Marcy said, the DOJ should be novel and creative. Give all the documents back and then subpoena all of them. Get creative, people.

    Also, screw the 60 day rule. If these documents were stolen during the duration of Trump’s term, then does it really matter when he’s indicted? Any indictment would already be years in the making. The DOJ should act based on the severity of the crime. And this pretty damn severe. This is the biggest crime ever committed by an executive after leaving office.

    • James Wimberley says:

      “This is the biggest crime ever committed by an executive after leaving office.” Not necessarily. There are two levels of wrongdoing.The first is the proven violations of espionage law: theft of government documents, improper handling, obstruction of proper government efforts to recover them. The second level is gift or sale of secret information in the documents to foreign countries, which only the US Constitution prevents us from calling treason. There is no public evidence Trump committed this crime, just suspicions. But the possibility must be part of the DOJ investigation, which may explain its slowness.

  18. Stacy (Male!) says:

    One more manifestation of the GOP judiciary’s lack of any “decent respect for the opinions of mankind.” This “opinion”, like Alito’s in Dobbs, looks like a judicial decision but, as Marcy shows masterfully, it has all the intellectual honesty of an “own the libs” tweet by Hugh Hewitt.

    • eskimo says:

      With gratitude we bow to the benevolent Emptywheel, whose constancy proves that reason is not lost, and that education dignifies the citizenry. However impractical the remedies may be, any person invested in democracy can and should call for strict examination of Judge Cannon’s perverse orders. The sequence of events since her nomination expands the wholesale trivialization of governance as the midterm cycle kicks into gear. It looks more like a set up than a fuck up. Her writing style is colloquial and inferior compared to the antagonistic logic and vile structure, which barely conceals a poison dart aimed at the presidency – a stochastic threat. Since when is executive privilege unsettled with regard to national defense information? The noncompliance and legal cajoling – disguised as incompetence – reveals points of entry for dark money, accelerating blackmail, and probably death in certain quarters.

  19. Paulka says:

    I view the following as the most important phrase in the Judge’s decision: “…and in any event, this is not a situation in which there is no room to doubt the immediately apparent incriminating nature of the seized material, …”

    Pretty much everything else results in a delay in the investigation while the SM reviews the documents for AC or personal property, which as Ms. Wheeler has excellently and clearly stated are a very small portion of the overall material. But, here, the Judge is explicitly rejecting the notion that Trump retaining classified documents is self-evidently criminal. That should worry anyone who wants to hold Trump accountable, because, as we have seen Trump judges and the SC will bend logic on its end to reach a pre-determined conclusion-i.e., Dobbs. I fear this is a ruling designed to achieve a pre-determined end. Because, it seems to me the only way for Trump to avoid criminal exposure is for the courts to rule he had a right to the documents.

    • Tom-1812 says:

      Why the double negative? Why not simply write, “… and in any event, this is a situation in which there is room to doubt the immediately apparent incriminating nature of the seized material…” It’s as if Judge Cannon doesn’t want to be too obvious about what she’s stating. She wants the reader to have to work a bit to smoke out her meaning.

      And she’s asking us to consider the extremely unlikely possibility that the “incriminating nature of the seized material” may only be “apparent”, not real. Plus, she’s trying to deflect from the fact that Trump stole the documents by raising questions about whether or not the files are of an “incriminating nature”. What’s actually incriminating is Trump’s ACTIONS in stealing the documents and refusing to return them when requested, not the NATURE of the documents themselves. If Trump stole a family pack of double-roll toilet paper, would Judge Cannon be asking us to pause and consider that the “incriminating nature” of the toilet paper may only be “apparent”?

        • SteveB says:


          Cannon uses circumlocution deliberately to provide a screen of obfuscation behind which Trumps malfeasance gets a pass.

          The specific instance referenced here fn12 is the ‘discussion’ of clean hands and the Howell case;
          her ‘treatment’ ignores that the property in Trumps case were documents the subject matter of grand jury subpoena, which wasn’t fully complied with, and the partial compliance was accompanied by a materially false ‘certificate’

          The ruse she uses
          “; the Government has not clearly explained how Plaintiff’s hands are unclean with respect to the personal materials seized; and in any event,…”

          Is a shoddy sleight of hand: the Government fully justified their accusation before her of the Plaintiff’s lack of clean hands regarding the principal objects of the search

  20. Richard Smith says:

    Trump has some sort of possessory interest in MAL that would serve for standing purposes. It’s his primary residence, after all. I wonder whether they ever bothered to paper up some kind of lease, or is the unpaid rent just more undisclosed personal income?

    • Rugger9 says:

      It’s not supposed to be, since for tax purposes M-a-L is a club / resort and that description in WPB FL precludes permanent residency. It’s a topic raised before elseweb many times, but this particular grift is small change relative to the others.

      • bmaz says:

        Actually, it is supposed to be. There is even an opinion by the State’s Attorney okaying it. Are people seriously hung up on this bunk?? Come on man. If they had probable cause to believe you were secreting classified documents for Trump, DOJ could get a warrant for “your house”. It is his residence, and that is the end of the story. Don’t bite off on red herrings.

      • earlofhuntingdon says:

        Trump doesn’t have to own a property to live there. Has the FBI never searched a hotel room or rental property?

      • Richard Smith says:

        Which would mean the fair market value of the use of the property is taxable personal income. I rather doubt that he’s paying it.

        The LLC could deduct it as a business expense, but that’s at a much lower corporate rate than Trump would personally pay. So I’m guessing the entire rent situation is off the books. In any event, it’s his residence, and that gives him standing.

        • Rugger9 says:

          It does raise the question regarding how Individual-1 is compensated by being a resident site manager. Somewhere there has to be a contract that spells it out (as well as exclusive use zones, perhaps) and would be presumably reported on the individual taxes. However, taxes are not the topic here, since the Town Attorney says TFG is a resident.

  21. hollywood says:

    If she plays her cards right and if the GOP takes the Senate, Cannon is on track to be the next Justice Taney.

  22. civil says:

    Just a heads up that the hyperlink in “Judge Aileen Cannon enjoined the government” goes to the DOJ’s motion, not to Judge Cannon’s order.

  23. HEW says:

    Re ownership interest: “Trump does not own Mar-a-Lago. The club does, and Trump Organization owns that.”

    But who owns the Mar-a-Lago Club (a Delaware LLC per Scott Stedman*) and who owns the Trump Org? Does Trump or his Revocable Trust have an ownership interest in either entity? DOJ should request that the Movant establish such an interest for the record.


    I agree with Bmaz’s point above re his interest in his residence and perhaps his office, but I think the Club facilities (storage room) could be distinguished, such that Club ownership becomes an issue.

    • Rugger9 says:

      I would expect that the storage room is an exclusive use zone which would (hopefully) be defined formally. If it is so defined, I would expect that a privacy claim would have more traction if not for the videos clearly showing government property being moved into the non-secure location (Rayne referred to the chapter and verse in the US Code elsewhere about why it’s not secure).

      If it is not defined, then it’s potentially community property for all club members, unless the CCRs say otherwise. The CCRs / bylaws / club charter doubtless have something to say and usually is a publicly accessible document. However this is super0rich snooty South FL, maybe the rules are different there.

    • bmaz says:

      No. If there is a nexus and probable cause to believe there is evidence of a crime there, even if only putatively spatially connected to the target, Trump, it is fair game. This whole premise that the “residence” and who really owns it, is mind bogglingly painful to watch being argued. “Ownership interest” remains the biggest red herring in a long time.

      • HEW says:

        I was primarily responding to a statement in the article (see quote in OP).

        While it may be irrelevant to a properly framed legal analysis of the current Motion, to the extent that the judge relied on his assumed ownership of the club to establish standing (as described in the article), one can argue that the judge misapplied the law, the facts or both. On a hypothetical appeal, you can assume your legal framing and arguments will carry the day, but if the factual underpinnings are not established, it’s also worth noting.

        In this regard, the article states that he is not the owner of the club, although the beneficial owner isn’t clear to me from the public record. Either way (not the owner or not clear), it undermines the judge’s holding.

        Secondly, I thought you were arguing for his standing to challenge the search of his living quarters above, regardless of ownership (I agree). I did not intend and do not question the FBI’s right to search the storage room. Is it your view that ownership would also be irrelevant in a possible future challenge to the search of club-controlled areas like the storage room?

        • bmaz says:

          No, I contend that the whole ownership of residence is one of the most useless red herrings ever. I don’t care what this dumb ass judge thinks, that garbage is not part of traditional search warrant challenges.

          Hypo: I rent you my guest house, either for money or services (Trump arguably provides services and benefits to the MaL operation, and that is hard to argue against). Do you have a privacy interest in the premises you have rented? Of course you do. But the flip side of that is that the government has a probable cause to search if established. How is Trump any different as to the latter. Seriously, this line of argument is absurd. This has been argued forever in criminal law.

        • HEW says:

          For a traditional analysis and possible future challenge by Trump, does he have a reasonable expectation of privacy in a storage room that is not part of his living space, (hypothetically) he does not rent or own, and is used and controlled by the club, with pool boys authorized to go in and out to get chairs and umbrellas and the like?

        • bmaz says:

          No, not if he has dominion and control over it and is using it as his own. Nope, not if there was probable cause established there was proper material for seizure there.

        • Yorkville Kangaroo says:

          And certainly not if it can be established how the boxes came to be located where they were found (i.e. The Donald told people to put them there).

          The arguments about who owns the domicile and applicable spaces are entirely spurious.

        • Ravenclaw says:

          If memory serves, a person can legally reside in a wooded campsite, in a Hooverville, or on the pavement outside the convenience store. I mean, maybe they aren’t “legally” supposed to be there, but it can still be their “legal” residence for purposes like applying for government benefits. There were cases along these lines back in the 80s or 90s, weren’t there? So who cares whether T is ‘supposed’ to live in MaL by law if he is actually to be found there on a regular basis – with his stuff?

          Maybe someone with real expertise can cite chapter and verse on this issue. I’m not that clear on the distinction between a domicile and a habitual residence, for example.

      • SMF88011 says:

        It would be interesting to see MAL and all other Trump properties confiscated as their being fruits from crimes….

  24. earlofhuntingdon says:

    Cannon’s lawyering is special pleading, and as bad as the rest of Trump’s legal team. In Cannon’s case, it doesn’t mean she’s negligent. Before Trump appointed her to the bench, she was as an assistant USA in SDFL – in charge of criminal appeals.

    Based on her background, nothing in her order was there by accident or negligence. She went out of her way to cherry pick arguments, ignore the law, and invent facts and law to favor Donald Trump. She treats him as a client-patron, not as a common civil litigant or as the dodgy businessman and former public employee he is. No one thinks she would have adopted this same attitude were the FBI investigating a former Democratic president. Had she submitted this as a pleading by counsel for a litigant, it would justify her sanction for actively ignoring and misstating applicable law.

    As one example of what Cannon ignores, and as Orrin Kerr has pointed out on twtr, there is ample precedent that prohibits a court in a civil matter from enjoining the government’s criminal investigation. Imagine that.

    • WilliamOckham says:

      I was about to write a long comment. Then I read yours which said pretty much what I wanted to say, only more succinctly.

  25. Sabine Farm says:

    In Federal Pactice ,objection to subject matter jurisdiction can be made by any party at any time.Given Judge Cannon’s finding in the decision at footnote 16 , that pursuant to PRA the DC federal court has jurisdiction over disputes brought by a former POTUS in a dispute concerning his Presidential Records,return all docs culled out by taint team and the gravamen of the Trump complaint is executive privilege protecting the dissemination of the docs. In interests of judicial economy , this issue should be decided now. I hope it is not presumptuous of me to ask what Professor Wheeler thinks of this.

    • Ginevra diBenci says:

      Thank you for asking. That footnote has been nagging at me since I read the order. It appears to sweep the DC jurisdiction under the rug, to justify its own gravamen–to improperly borrow your word–or reason for existing.

  26. HEW says:

    “So the only reason DOJ still has exclusive possession of the materials on which she hangs her Richey analysis is because she, Aileen Cannon, prohibited DOJ from sharing it, and she uses DOJ’s possession of it to prevent the government from investigating the thousands of government documents Trump stole.”

    Oddly (or not), Trump and his Personal Counsel/Judge seem less interested in getting this material back to Trump promptly than in burying other government documents in bogus Executive Privilege: The tranche of materials that he presumably secreted at MAL because it is incriminating and/or embarrassing.

  27. WilliamOckham says:

    I can’t explain this ruling or the process that got us here, it is too much. Let me sum up:
    1. Trump’s lawyers file a motion
    2. Judge Cannon: Uh, that’s gibberish, try again.
    3. Trump’s lawyers file another motion.
    4. Judge Cannon: Sigh, still mostly gibberish, but I’ll hold a hearing.
    5. Trump’s lawyers make gibberish noises at hearing.
    6. Judge Cannon: Ok, I’m gonna pretend that wasn’t gibberish and write a ruling in your favor based on what I thought you should’ve said.
    7. Lawyers everywhere: WTAF? That ruling is mostly gibberish…

  28. tinao says:

    Empy, thanks for this “holistic” review. That gal doesn’t deserve the job she has. I would feel much better if you had it!

  29. KM Williams says:

    How likely is it that Judge Cannons & her law clerks actually thought up and wrote this judgement? Who, really, is behind her ruling?

    • bmaz says:

      Ah yes, yet another wild conspiracy theory without one measly shred of allegeable, much less capable of being established, evidence. Really?

    • bmaz says:

      Ah yes, yet another unfounded and unsupported with even a scintilla of evidence conspiracy theory. At one time, this blog was where people came to get away from that kind of garbage. Apparently it is the home for it now.

      • earlofhuntingdon says:

        Judge Cannon’s was an opinion on a motion, a type of pleading. There are many motions in a typical case; this one was momentous, but early in proceedings. There is one final judgment, which comes at the conclusion of a case.

        • njbill says:

          I’m still interested in learning just how this motion got accepted for filing, and how it got to Cannon.

          Fed.R.Civ.P. 3 requires a civil action to be commenced by a Complaint. You can’t commence an action with a “motion,” as Trump did here.

          My understanding is Trump’s minions walked the motion papers into the clerk’s office in Fort Pierce where Cannon is the only judge. I would have expected the clerk to say, you can’t file this motion to start a new civil action. You need a complaint. No clerk I ever heard of would have accepted it for filing.

          The only thing that makes sense to me is that the Trump people somehow talked the clerk into showing the motion to Cannon who told the clerk to accept it for filing. Wrong, wrong, wrong, of course, but that is the only scenario that makes sense to me.

          Also if Trump filled out the civil cover sheet correctly, he would have noted that there was a related case pending before Judge Reinhart.

  30. harpie says:

    Judge Loose Cannon denies AMICUS request:

    1:40 PM · Sep 6, 2022

    Following yesterday’s order granting Trump’s request for a special master to review the seized Mar-a-Lago docs, the judge says thanks but no thanks to a proposed amicus brief from former senior DOJ/govt officials who served in GOP admins (they had opposed Trump’s request) [screenshots]

    • Rugger9 says:

      I would guess it’s something DoJ can leverage to its appeals, that Judge Cannon wouldn’t even let them use amicus briefs after essentially granting an ex parte order on a motion where I would expect ex parte rulings are not allowed. IANAL, though, perhaps someone could explain this in a way where Cannon could so order.

    • bmaz says:

      Good. She should have. You don’t really file amicus briefs in a trial court, you intervene if you have a valid interest. These clucks were filing the equivalent of an internet letter for publicity seeking.

  31. pdaly says:

    Blind Justice, cutting two eye holes out of her blindfold and obstructing an active DOJ criminal investigation, takes on the look of a bandit.

  32. earlofhuntingdon says:

    Among the impossible to answer questions Cannon’s order raises is how would a SM determine if any document was privileged, absent an assertion of executive privilege by the current president.

    Nor do I think Trump has asserted executive privilege – his lawyers have just thrown the unmodified “privilege” against the wall like spaghetti, in hopes that Cannon would make something out of their mess.

  33. John Gurley says:

    I thought judges are allowed to interpret the law, within the bounds of plausible interpretation.

    But apparently judges can invent new law out of whole cloth, and the only way to remedy that is by impeachment or overrule by a higher court.

    Why doesn’t Justice tell this judge “we ignore your invalid ruling”?

    • Troutwaxer says:

      I don’t think that’s a good tactic – the chances of a backfire are incredibly high – but I’m totally with you on the feelings. This Trump-felching, corrupt simpleton simply should not be judge.

  34. punaise says:

    Josh Marshall, 9/05:

    I don’t think we should be too concerned about President Trump convincing a judge to appoint a special master to evaluate the documents seized from his villa in Florida. Mostly this is simply a delay — a boon for the former President but not a huge one. The special master will review the materials for attorney-client privilege documents which the DOJ has already done. There’s no reason to believe the results will be any different.

    Josh Marshall, less sanguine two days later:

    In my posts yesterday I suggested that Judge Aileen Cannon’s ruling — despite its unsupportable claims — was likely just to mean a delay in the progress of the investigation into ex-President Trump’s theft of classified documents and government property. Having read the decision more closely now and read some of your comments, I’m less sure of that. As I noted, this whole decision — and Cannon’s presence on the bench at all — are fruit of the pervasive corruption of the federal judiciary.

    This goes back to the on-going argument in the non-right-wing legal world about whether we’re still in a normal legal framework of contending judicial philosophies in which the main aim is to maintain respect and deference to the judiciary or whether it has been hijacked and corrupted and needs some thorough-going reform.

    To many of us, we’re clearly in that latter scenario.

    For the moment, what’s necessary is to immediately appeal this decision through an expedited process to get it overruled. There’s a good chance that won’t happen because the corruption goes to the very top. But we need to clarify that now.

  35. Doctor My Eyes says:

    So, what I had thought was a childish idea–mixing highly sensitive documents with ordinary mementos to create some kind of confusion or smokescreen–turns out to be a brilliant move that can shield the worst offenders from being prosecuted even when caught red-handed. So many norms and guardrails are disappearing that it is quite dizzying. And speaking of childish, the motivation for much of this evil, beyond money, seems to be to stick it to the libs, what with their political correctness, cancel culture, and confining system of legal norms and precedents.

    • Troutwaxer says:

      I’m going to steal some money and mix the evidence with my clippings and credit-card bills! Thanks Judge!

    • Yorkville Kangaroo says:

      Here’s an interesting question since IANAL:

      Since part of the DoJ’s case will revolve on how the documents were kept unsecured and not segregated from other unofficial and/or classified documents why doesn’t the DoJ just claim ALL the documents seized are evidentiary and, as such, none of these are entitled to be returned to The Donald until the completion of the trial. Opposing counsel can argue what should be taken out at discovery.

      SM not required.


  36. Jon says:

    Possession is nine-tenths of the law. Or, did I read my Blackstone wrong?

    Lock Him Up

    ***[SIXTH AND FINAL REQUEST: You have been asked to change your username to something more differentiated than “Jon” or “Jonathan.” You have repeatedly ignored requests — see your last published comment which was replaced with a fifth request. I have to assume at this point you either ignore the requests or you don’t even bother to see if other community members have replied to your comments and are therefore uninterested in discussions. /~Rayne]***

  37. Ddub says:

    Say what you want about how incompetent the Trump lawyers are. They got everything they wanted and a bag of chips (crisps).
    I must be getting paranoid after these past few years. Is this ruling part threat?

    • earlofhuntingdon says:

      It’s not because they’re good lawyers. It’s because they’re loyal members of a tribe that protects its own, law, society, and the country be damned.

    • Doctor My Eyes says:

      I don’t see how one reads “threat” in this. This is effective action. The right is not bluffing–they are using every tool at their disposal to neuter our democracy, including the rule of law.

    • BirdGardener says:

      Renato Mariotti has an opinion piece over at Politico in which he details some of the ways in which Trump’s lawyer’s have displayed their incompetence: https://www.politico.com/news/magazine/2022/09/06/trumps-lawyers-special-master-indictment-00054926

      This is not a close, textual analysis of their legal arguments, but an explanation of how he thinks competent lawyers would have handled this case from the start, in comparison to Trump’s lawyers.

  38. hollywood says:

    Maybe I think too much like Goldilocks. It seems to me that Cannon went too far with her order and risks being overruled entirely or sharply limited on appeal. Of course, there’s the awful scenario that the 11th Cir. could send the case back to Cannon for further briefing and fact finding.

    • bmaz says:

      No, the “awful scenario” is that the 11th just upholds her nonsense. You may not understand just how bad the 11th is.

      • earlofhuntingdon says:

        Imagine how bad the circuit and beyond is that a federal district judge could write this paean to Donald, seemingly without fear of consequence – except for not doing it.

        • hollywood says:

          Imagine there’s no justice.
          It’s easy if you lie.
          Only right wing judges,
          The 11th Circuit on their side.
          Imagine all the jurists
          Workin’ for the Trump….

      • cmarlowe says:

        I have no idea as to how appeals work. My understanding is that the 11th has a 6/5 R to D ratio. Do you really think all 6 Rs would vote to uphold Cannon?

        • cmarlowe says:

          Like I said – I don’t know how this works – that is why I am asking. Not here to debate the issue.

          Researching on my own has only led to confusion (en banc vs panel, etc.)

        • hollywood says:

          My limited understanding is that an appeal is to a panel of three justices. Then if a litigant doesn’t like the result, he could ask for a rehearing which could be en banc, before all the justices of the circuit who don’t recuse themselves.

  39. Ravenclaw says:

    OT But like the rest of you I just saw that the 14th amendment was invoked to disqualify a minor New Mexico politician from holding public office. Looked up the judge (Francis Mathew) who made the ruling, and what a contrast with the T***P nominees we keep running up against! I mean, bmaz may know some dirt on the guy but he seems like a real-life judge. And yes, he was appointed by a Republican governor so can’t plausibly be accused of bias here – not that the RWM won’t go ahead and do so.

  40. hollywood says:

    I assume by “minor” you mean a low level office holder, not someone who has not achieved his/her majority.

    • Troutwaxer says:

      I’ll get you started – it’s easy!

      Poor old Donny Trump
      Sounded sad upon the radio
      Killed a million folks with COVID
      Their mothers cried
      Mourned along, who’d blame them?
      Here come Trump’s lawyers
      They’ll file in your court
      You’ll smile on their tort
      Now I must say more than ever (Come on, Aileen)
      Gonna file-a little bad appeal
      And we can screw the founding fathers…

      Come on, Aileen
      Oh, I swear FBI
      Has been evil
      Taken everything
      You in those robes
      Won’t make him address
      Our security….
      Oh, come on, Aileen

      Punaise, c’mon write your own chorus
      Punaise, let’s hear your best retort…

      • punaise says:

        Appreciate the effort, but the subject at hand is just too much of a departure from the theme of the original. Either that or I’m just not trying hard enough?

      • Midtowngirl says:

        Come on!
        Ignore the P-R-A
        (Come on!)
        Keep all those feds at bay
        (Come on!)
        Their case was strong
        But you strung it along
        Oh oho Ailee-een!

        That was fun, but the mental image of the fat orange guy shirtless and in comically loose, highwater bib overalls….. Ewwww!

  41. Paulka says:

    Novice question here, but at what point is the DoJ going to call Trump in for questioning, if at all? Hillary Clinton was questioned regarding her emails, if I recall correctly. This is obviously orders of magnitude worse.

  42. earlofhuntingdon says:

    Kudos to Chef Jose Andres. His World Central Kitchens are feeding people in Jackson, MS – the state capital – because its entire water system has failed. That means 180,000 plus people have no water coming out of the tap fit to drink, cook, or bathe with.

    The knock-on effects include closing schools, where a lot of kids eat their breakfast and lunch, sometimes their only meals of the day. Let’s hope the eventual fix does not include typically rapacious Wall Street financing. That would be piling agony on top of misery.

    Why doesn’t Chef Andres have his Nobel Prize yet?

  43. The Old Redneck says:

    People need a reality check on this. The 11th Circuit is god-awful (if you don’t believe it, read their opinion reversing restoration of voting rights to felons in Florida – just one example). As bad as Judge Cannon’s order is, they might find a way to uphold some portion of it and do even more damage.
    Judge Cannon isn’t going to get impeached over this either. She was smart enough to mix in just enough plausibility to make an appeal difficult and complicated. She’s no dummy. She has an agenda, and she wrote that order in a way that gives her the best chance to carry it out.
    In other words, this is not as simple as it looks. Any path the DOJ takes has potential downsides. Their lawyers are going to have to think carefully about what to do next and not be rash.
    To paraphrase Winston Churchill, we have the worst justice system in the world, except for all the others.

  44. timbo says:

    Thank you! This is the kind of analysis that DOJ is hopefully doing right now as it writes its appeal filings! This really is a wonky ruling and order by Cannon. And it deserves to be eviscerated on appeal…or multiple appeals if necessary.

  45. Midtowngirl says:

    Material on foreign nation’s nuclear capabilities seized at Trump’s Mar-a-Lago
    Some seized documents were so closely held, only the president, a Cabinet-level or near-Cabinet level official could authorize others to know

    I have so many questions! They are all over the place, and I hope not too simplistic:
    If the WaPo article is true, and there are nuclear docs in the mix, won’t that make a successful appeal more certain?
    Wouldn’t it make an indictment also more certain?
    FRD/ RD classified docs can’t be declassified by *any* president, correct?
    And wouldn’t it make finding a qualified SM impossible?
    Overall, how will this leaked news affect the dynamics at play? Was it leaked with a specific end in mind?
    Again, my apologies if the questions are improper – just hoping to learn what the legal minds think about all this.

    • Yorkville Kangaroo says:

      What’s ACTUALLY in the documents is not the issue. The fact that it is NDI is. It wouldn’t matter if it laid out where every US nuke silo was situated or that The Donald actually died on the table during his colonoscopy.

      However, a jury might find one bit of information somewhat more compelling.

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