Aileen Cannon Orders Government to Share Classified Information with Trump’s Counsel

I’ll have a lot more to say about Judge Aileen Cannon’s order blowing off National Security in favor of Trump’s half-assed claims of being a victim. Her order is a radical assault on national security and rule of law.

But for the moment, I want to look at this part of her work flow order.

Make available for inspection by Plaintiff’s counsel, with controlled access conditions (including necessary clearance requirements) and under the supervision of the Special Master, the documents marked as classified and the papers attached to such documents; and

It orders the government to make the classified documents stolen by Trump available to his attorneys, including Evan Corcoran, who is either a witness or a subject of this investigation. None are known to be cleared. Aside from Jim Trusty, it’s not clear how quickly any of them can be cleared.

In her order, she claims this involves sharing only with the Special Master, Raymond Dearie.

The Government also presents the argument, in passing, that making the full scope of the seized materials available to the Special Master would itself create irreparable harm [ECF No. 69 p. 18]. Insofar as the Government argues that disclosure to a Special Master of documents marked as classified necessarily creates an irreparable injury because the special master process in this case is unnecessary, the Court disagrees for the reasons previously stated. Separately, to the extent the Government appears to suggest that it would suffer independent irreparable harm from review of the documents by the Court’s designee with appropriate clearances and controlled access, that argument is meritless

But these are completely contradictory. One document says the government must share classified information with Trump’s people. The other document says, “it’s only Raymond Dearie, don’t worry your little heads.”

And she just waves her hands and says the government must share this stuff, “including necessary clearance requirements,” without acknowledging that she doesn’t get to decide that. If the government says that none of Trump’s lawyers can be cleared, they get to say that (again, I expect fewer concerns about Trusty, but major concerns about Corcoran).

That’s par for the course of this order.

Go to emptywheel resource page on Trump Espionage Investigation.

68 replies
  1. John Paul Jones says:

    As the bard (almost) says – “But judge, proud judge, dressed in a little brief authority, most ignorant of what she’s most assured; her glassy essence, like an angry ape, plays such fantastic tricks before high heaven, as make the angels weep.” Angelo or Eileen, it amounts to much the same.

      • Wajim says:

        Well, at least the half of it he was aware of at the time; the other half comes much later, some of which we are living through now

  2. Scott Rose says:

    What would be against President Biden declaring all documents seized at Mar a Lago and marked classified as being newly classified, pending intelligence agencies’ reviews of the current need for them to be classified?

    • TXphysicist says:

      According to the Mar-a-Lago search warrant, the executive branch’s records show that the documents are still considered classified, so that’d kinda be like an own-goal, I think.

      And so far, Biden has been appropriately detached from this entire affair, which seems especially prudent now that Geoffrey Berman has just come out and alleged a huge amount of corruption in the DoJ stemming from Trump and Barr’s directives.

    • StevenL says:

      I believe he could, but I assume he wants to stay out of this to the extent possible. I expect that over the last month the government should have been able to establish from agency owners, for most if not all of these documents, whether classification remains appropriate.

        • Silly but True says:

          Retroactive (re)classification of (de/)unclassified documents can occur, but there is already an orderly process for that under normal agency procedures, and it’s even more limited than original classification and declassification, especially once such documents have left government possession into public’s hands.

          Biden could do it, but it’d be just as weird and atypical breaking normal order as any “bulk declassification by magic wand/telepathy” that Trump may have done. Also any attempt to prosecute on that retroactivity would probably run afoul of courts likely to dismiss its unfairness out of hand.

          Also it’s liable to set off a war that next opposing party POTUS would do same to documents in Clinton, Obama, and Biden and/or their libraries’ possessions; it’d be a ridiculous, irrational “gotcha” attempt to try game things like that.

  3. J. B. Guillory says:

    DOJ has to appeal. It’s as simple as that. She uses phrases lifted from DOJ’s responses to Trump’s empty-headed pleadings – particularly the phrase “appears to suggest.” This whack job judge is only going to make other, more preposterous rulings if she’s not stopped by the 11th Circuit.

  4. TXphysicist says:

    Dearie was involved in authorizing the surveillance of Carter Page in 2016, so one play from the Trump camp might be to use his involvement with “Russia, Russia, Russia”-gate to tarnish his reputation, should they feel the need.

      • TXphysicist says:

        Yeah, but the other Special Master proposal from the Trump camp was Paul Huck Jr., and it was designed to fail, in all likelihood:

        So I’ve been looking for reasons as to why Dearie, a seemingly acceptable judge, has been de facto selected by the Trump camp, who surely planned to reject both of the two DoJ judge propositions. And then did.

        Anyway, that’s muh logics

        • Justlp says:

          I’ve wondered that too. The only thing i come up with is that he had his hands slapped by the IG about the Carter Page FISA warrants & tfg thinks that might make him less amenable to ‘siding with’ the government.

      • bitte says:

        So that they can claim conflict and send it to the judge.

        If the Government agrees with Plaintiff’s position, the subject item or document shall be handled in accordance with the parties’ agreement. If the Government disagrees with Plaintiff’s position, the dispute shall go to the Special Master for a report and recommendation and, if either party objects to the report and recommendation, to the Court for de novo review and decision.

  5. StevenL says:

    I don’t read the order to require the government to alter its normal process for evaluating clearance, but rather to say that the government is entitled to apply standard-practice conditions for access. I can’t imagine Mr. Corcoran could be eligible given his evident failure to take NDI seriously. But this raises the question as to whether Team FPOTUS can delay the process to the extent it requires provision of clearance.

    • Strawberry Fields says:

      There’s no standard practice clearance for some of these documents, except the President appointing you to highest level in government.

      [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. I’ve taken the liberty of reverting your username on this comment to the last one you used; I suspect you may forgotten you’d used a pseudonym. Let me know in replies here if you’d like to be “out” under what I believe is your real name. Thanks. /~Rayne]

        • earlofhuntingdon says:

          No. That would be an example of political bias. But their own past conduct would disqualify most of his current or past lawyers from holding a security clearance. Rudy Giuliani is an exaggerated example. Each of his glaring problems would independently deny him a clearance.

          Serious drinking or credit problems, for example, are automatic disqualifiers. Rudy has both. Serial adultery is a strong indicator that the adulterer would be no more faithful in keeping government secrets secret. The same analysis applies with regard to Rudy’s serial lying, his allegedly close association with organized crime figures, and his plethora of other ethical problems.

          Many of his current and past lawyers have similar, if fewer, disqualifying aspects to their pasts.

  6. Riktol says:

    “the Motion effectively asks the Court to accept the following compound premises, neither of which the Court is prepared to adopt hastily without further review by a Special Master. The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them. The second is that Plaintiff has no plausible claim of privilege as to any of these documents”

    Need to get to bed, but I read that as a massive middle finger to the court’s normal deference to the government on matters of national security.

  7. Mark Randall says:

    How would this even work in practice? The DOJ can’t just give Trump’s lawyers clearances. They would need to go get approvals from each department of the executive branch where these documents originate?

    The judge is forcing the DOJ to go the White House for clearances for Trump’s lawyers.

  8. flounder says:

    In the context of Christine Witman saying that Trump tried to use kompromat on her that he had no business knowing (about her son getting blackout drink at a party in a Trump apartment complex), and given this ruling, I’m really starting to have a bad feeling about letting Trump pick the Special Master.

  9. earlofhuntingdon says:

    Apart from filing its appeal with the 11th Cir, the DoJ might want Cannon to be clearer on what, if any, documents or information from them that plaintiff’s counsel, having received sufficient clearances, can share with their client. Trump has no clearance at all, and any courtesy access he might once have had as a former president has been withdrawn. Given his record and recent history, he should never get one.

    • Peterr says:

      Similarly, in making any of these classified documents available to Trump’s team, they should follow all required access requirements. That is, put them in a SCIF (in a federal courthouse?) and make whatever cleared attorneys come there to view them. No phones or computers can be brought in, no copies can be made, etc.

        • Peterr says:

          Cannon does not appear to think that it matters that Trump’s lawyers are either witnesses to or co-conspirators in the espionage, removing government documents, and obstruction at issue.

          • earlofhuntingdon says:

            I think she knows but doesn’t care. The project of which she is a part is to protect Trump.

            Any collateral damage to the prosecution of others is either irrelevant to her, or a desirable outcome in the neocon movement’s goal of making government, as traditionally understood since FDR, unworkable.

            It’s part and parcel of the same movement’s goal to undermine elections, by appointing radical believers in the Big Lie to positions like state secretary of state. It guts the expected process, leading to appointment of Republicans by Republican legislatures.

  10. brucefan says:

    Their big mistake was issuing this at close of business.

    By sunrise DOJ will have a document that pins them to the wall (OK, they wrote most of it last week – it will look fresh).

  11. Fedupin10 says:

    Definitely concerned about flounder’s angle given the Judge was in Trump’s orbit in NY.

    But Trump seems to be desperate to get friendly eyes on the classified docs. Is it just his usual Impossible Ask in a lawsuit to delay and debate the absurd to gum up the works? Or does he NEED to deliver something he’s promised?

  12. Howard Cutter says:

    Just read the work flow order:

    aa. Personal items and documents not claimed to be privileged;
    bb. Personal documents claimed to be privileged;
    cc. Presidential Records not claimed to be privileged; and
    dd. Presidential Records claimed to be privileged.

    Aren’t these categories leaving out a few things? For instance, the classified documents – as I understand it they would neither be personal items or documents nor presidential records.

    • StevenL says:

      Yes, see 44 USC 2201 2.B:

      The term Presidential Records “does not include any documentary materials that are (i) official records of an agency (as defined in section 552(e) [1] of title 5, United States Code)”

      The judge’s failure to recognize this is stunning, and would appear to render her proposed Special Master order grossly deficient.

        • Paulka says:

          The Government’s plan was to exclude all classified marked documents from SM review. That was denied.
          Basically the 4 categories are completely Trump’s wish list fulfilled

        • earlofhuntingdon says:

          Exactly. Cannon has plenty of smarts and experience in federal criminal law.

          She is knowingly and actively trying to sabotage the process of holding Trump, and by extension, any senior Republican, liable for having violated any federal crimes. If left to stand, her precedents would wreak havoc in the government’s prosecution of any defendant.

          • Stephen Calhoun says:

            Won’t the classification system be wrecked should the other shoe drop where SCOTUS or an apellate court grants outgoing POTUS the inherent authority to declassify documents with a hand wave and turn these into personal papers or ‘executive’ privileged papers?

          • Stephen Calhoun says:

            Won’t the classification system be wrecked should the other shoe drop—in which SCOTUS or an appellate court grants outgoing POTUS the inherent authority to declassify documents with a hand wave and turn these into personal papers or ‘executive’ privileged papers?

  13. Rmartin says:

    I think the order preventing any criminal investigatory even for a limited period of time is likely death to any prosecution at all, relating to any of the Espionage Act, Obstruction, or Removing Government Documents.

    This all seems like a re-run of the congressional-immunity issue in the John Poindexter Iran-Contra case. Creating even the tiniest amount of inadmissible evidence that taints the entire prosecution. Or so judges can say, and say that it is fact-specific.

    No matter what DoJ does now, Trump will make that fact-bound argument that any case was made even with the tiniest bit of a peek at the search warrant document information. So anything DoJ does will be tainted. Even if the order gets reversed, there could still be an argument that “DoJ people involved in the prosecution peeked when they should not have been” by participating in the intel assessment in any way during the period with Judge Cannon’s order is in effect. Unless DoJ can prove that they completely shut down from her first order until any 11th Circuit reversal. Impossible to prove; there will be some loose thread, of necessity in order to do the damage assessment.

    Even if DoJ now gets it tipped on appeal. And even for pre-search-warrant crimes like the June documents and failure to respond to the DC GJ subpoena. The best course could be to indict and go to trial only on the obstruction based only on the classified document coversheets, with zero reference to the context. Because the GJ subpoena called for everything with classification markings, those cover sheets alone, with no content needed, support a case. And there will be plenty of subtext for a judge and jury to know that it was important to turn the cover sheets over. They will intuitively know that there were documents attached.

    Do this with a team that gets segregated right now. No doubt DoJ has been very careful from Judge Cannon’s order until now – likely totally shut down. But that’s just not practicably tenable for long.

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; you last commented as “Waban1966.” Thanks. /~Rayne]

  14. skua says:

    Looks like Cannon is deliberately Flooding TZWS.
    And is deliberately forcing DOJ to get a court to put a stop what she has ordered.

    Which will let a lot of fear, anger and motivation to vote be evoked in Trump’s base going into the midterms.

    As a move to game the system, this is excellent play.
    Keep your democratic republic? Not so much.

    • P J Evans says:

      One thing she’s really not seeing is that a *lot* of people have experience with clearances at various levels, and are not at all happy with the former guy and his actions with those docs.

      • skua says:

        This is good to hear P J Evans..
        Would you predict from that Trump’s support among current and former military personnel will fall significantly?
        If so then “Oathkeepers” should take a hit.

        Or is it some other grouping of Trump supporters who are familiar and disapproving?

  15. taluslope says:

    No f’ing way! Trump’s attorneys don’t get a clearance because known associate is a known leaker of classified information. Also clearances can take 1-2 years even if you’ve previously had a clearance (though the FBI could speed it along, do they want to?). (Note the FBI doesn’t give the clearance, the agency does, the FBI is just in charge of the investigation.)

    What the Honorable Judge fails to understand is that for some of this information there is a NEED.TO.KNOW. This is not a joking matter. For example (of which I have no special knowledge) suppose a document contains enough information to give up the identity of a source. No special master has a need to know this information. If you need to know something, I guarantee it is not something you want to know. I’ve known people to quit because they didn’t want to know anymore. Fortunately I never worked with that level of stuff.

    When one gives up their clearance, they are required to sign a document never to reveal classified information to ANYONE, or face the rest of their life in jail. Why anyone you ask: because they no longer have the clearance to go to a secure location to tell said anyone what is locked up in their head.

    So throw me in jail, I ain’t saying nut’n to no Honorable Judge nor special master. No Sir!

      • skua says:

        Could be you’ll be told to use google.
        But the following will get you started:
        Article III judges impeachment by the House of Representatives and conviction by the Senate

      • earlofhuntingdon says:

        You need to do some of your own homework. For starters, try the Wiki entries on the US Constitution, or search for impeachment under the same topic.

        Basically, you would impeach an Art. III judge, like district judge Cannon, the same way you would impeach the president: an indictment process in the House (the impeachment), and a trial in the Senate. If convicted by the required majority, the penalty is removal from office and possibly a prohibition from holding any further office in the USG.

        The odds are low that the current Democratic Party would ever prioritize and expend the political capital to impeach a federal judge.

        • bmaz says:

          The odds are exactly zero. Impeachment is precisely the same process for judges as Presidents. In history, impeachment of a federal judge has happened 15 times. With only 8 convictions in the Senate. One of them was Alcee Hastings, who then went on to be repeatedly (nearly 20 years) elected to Congress.

    • Jeffrey Gallup says:

      My concern is that at best it will take months for Trump’s lawyers to get TS clearances, and they will need immaculate histories to do so. And for access to the sensitive compartmented and other codeword materials requires being read-in to the compartment with a special briefing and signing of various nondisclosure documents, but most importantly a need to know agreed by the relevant originating agency which they may be very reluctant to provide. Especially to Trump lawyers when the material is normally only given to Cabinet-level officials or a few designees who absolutely must have the info to do their jobs.

      So any decisions, such as by the special master to clear the classified documents for use by the FBI investigation, will be disputed by Trump simply because the lawyers don’t have access – and may never qualify for access.

      The process of getting a clearance has always been arduous. First there is copious information to provide, including every address you have lived at since the age of 16 and certification that you are not a member of the Black Dragon society (at least in my day – that was an ultranationalist Japanese militarist group in the WWII era). You have to grant access (if I recall) to your medical and financial history. These days I suspect you have to give access to social media, your e-mails etc. (Can anyone confirm?) .

      Then the FBI has to go out and question your neighbors, employers, schools, etc. The results of all this must be evaluated and approved.

      But why do the lawyers need access when it is the special master who is supposed to initially decide on matters of privilege? They will simply dispute everything and delay as long as possible.

  16. Sue 'em Queequeg says:

    Possibly a dumb question, please ignore if so: isn’t Cannon proclaiming, only slightly indirectly, that there’s no such thing as a classified document, as that term is and has long been globally understood?

    • Silly but True says:

      Not quite. Cannon only notes that the classification status is disputed, with competing implications from the Presidential Records Act which specifically governs Presidential documents and generally only delineates between two categories: Presidential Records, which can included (Executive-)Privileged Records to be withheld from the public under certain conditions and Prvate Records which aren’t bound by PRA procedures. Whether a record is classified, or national security, or national defense is all a largely immaterial issue within the PRA act regime.

      Because these documents were a President’s, and not, say a random cabinet head, they implicate PRA regulations at the very least, and so may compete against or override Espionage Act handling provisions.

      SCOTUS has weighed in on past cases to extent that it’s precedent that Executive Privilege is entirely within the court’s realm of consideration.

      • earlofhuntingdon says:

        Not quite. Cannon claims that the classification status is in dispute. In his filings to the court, which are subject to legal consequences for false statements, Trump claims only that it could be. In his public statements, not subject to false claims, Trump claims he declassified them. The claim is irrelevant to liability under the three statutes the FBI cited in its search warrant, a topic both Trump and Cannon avoid.

        Both Trump and Cannon are consistently vague about what privilege they are talking about. The PRA allows the president to delay public access to presidential records specifically identified by the former president – when still president – for a period of up to 12 years. That’s not traditionally identified as privileged. Even then, as with all presidential records, they are to be under the control of the Archivist.

        EP, on the other hand, can only be asserted by the sitting president. A/C privilege, which is the privilege of the person who has sought legal counsel, might be asserted by anyone, subject to exceptions, such as the crime-fraud exception. It would not apply to documents identified as either Presidential or federal records, the third category that applies to the documents Trump possessed. It could apply to suitable personal records of Mr. Trump.

        Presidential records, by definition, would not be those of a randomly selected Cabinet official. The PRA would not affect the application of the Espionage Act. The S.Ct. considers EP to be the prerogative of the sitting president, regarding the non-disclosure of executive branch information to either the legislative or judicial branches. It is not absolute, but is weighed against competing interests, one of which is enforcement of the criminal law. It does not apply to communications within the executive branch.

        • Silly but True says:

          Still note quite. The idea that EP can only be asserted by the sitting president remains unsettled. In face, much of the very issues by which SCOTUS minted EP guidance in US v Nixon don’t have an end-of-term expiration date. And since then, the courts have certainly recognized that former presidents have interests associated to EP’ed information to varying degrees, but rather in some more recent cases, those interests may be outweighed by an incumbent President.

  17. paul314 says:

    I think that, if this bugfsck crazy order were to stand, it could be a horrific case of “be careful what you wish for” as far as trump’s attorneys go. Clearances go with SF-86 declarations, which (under a non-trump regime) you must fill out honestly or face jail time. Once you’re cleared (unlikely as many have noted) you can’t breathe a whiff of what you’ve seen to uncleared people without facing prosecution, and even after your clearance is done, you still can’t talk about the details of classified info. So any public statement by lawyers in that position could subject them to immediate federal charges if they’re not incredibly careful (and we know they’re not).

    Oh, and since Cannon is apparently arrogating to herself the power to re-review everything the special master says, that means she would have to get cleared as well. And that background investigation would make her vetting for a quick-and-dirty appointment to the federal bench look like a walk in the park.

  18. gmoke says:

    “The reader will have remarked that judges in general contrive matters so that their day of sitting shall also be their day of nasty humor, in order that there will always be someone upon whom to vent their spleen conveniently, in the name of the king, law, and justice.”
    Victor Hugo, The Hunchback of Notre Dame

  19. Jeffrey Gallup says:

    I noticed that Cannon asks the plaintiff to divide the materials they receive (including classified) into four mutually exclusive categories – personal/non-privileged; personal/privileged; Presidential records non-privileged and Presidential Records privileged. But judging from the picture of seized classified documents, it appears that many (most?) classified items may be none of these, but rather agency records or Federal Records. (Those TS SCI docs look like CIA or other agency intelligence reports. A few docs look like they have Presidential seals on them, so they may well be White House-generated and therefore Presidential records.)

    Is this an oversight, or is the lack of a Federal Records category deliberate? It seems to me that whatever claim of authority Trump might have over personal records and Presidential records, he would have less to none over Federal records which belong to the agencies.

    And given that this categorization and review cannot even begin until Trump’s lawyers get security clearances maybe many months in the future (if at all), a long delay can be expected unless Cannon’s order is quickly overturned.

  20. x174 says:

    what is Clown Judge gonna do if DOJ ignores her order to turn over their classified documents? it would be unconscionable and grossly irresponsible for the DOJ to give any unauthorized personnel any classified federal documents that have any connection with the felon drumpf. what planet is Clown Judge on anyway?

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