Aileen Cannon Is Stiff-Arming the Press
I’m going to write up what really happened yesterday — as predicted, virtually all outlets I’ve seen simply quoted what Aileen Cannon claimed she had done, rather than describing what she had actually done.
Before I do that, I want to note that Judge Cannon is stiff-arming the same press that is reporting so credulously on her interventions.
Back on August 31, the press coalition that does such things moved to intervene in the case. Most of it was the same boilerplate the coalition uses for all such motions, but they did cite both sides in the matter calling for transparency.
Former President Trump himself has called for greater transparency. See, e.g., ECF No. 1, at pp. 2-3 (noting personal desire for more openness). The Government has stated likewise. See, e.g., ECF No. 1, at pp. 9-10 (detailing Attorney General Merrick Garland’s statements on why the Government sought to unseal certain search warrant records); see also ECF No. 48, at p. 2 n.1 (noting that the Government is “prepared . . . to unseal the more detailed receipt”).
They described that the government did not oppose the motion and Trump took no position on it. They asked to be heard on the matter on September 1.
The next day, Judge Cannon released the detailed inventory the government had submitted (it has since submitted a slightly revised inventory, but didn’t address the press access.
After the government moved to unseal the privilege status report on September 8, the press coalition submitted their own request for unsealing.
Then, after two weeks had elapsed since their initial motion, the press coalition tried again. They pointed out that if anyone wanted to oppose their intervention, the two week deadline to do so had expired. And they noted that the privilege review status report still remained under seal.
The News Media further note that certain records remain under seal in this matter, namely those docketed at ECF No. 40. The News Media understand ECF No. 40 to contain the Government’s submission regarding its Privilege Review Team’s Notice of Status of the Filter Process. The Government filed a motion to unseal that document (less Exhibits A and B to that filing) on September 8, 2022. See ECF No. 71. The News Media filed a further motion to unseal that court record on September 9, 2022. See ECF No. 79.
But Judge Cannon has simply ignored those requests.
There’s an obvious reason she did so: In her September 5 order first appointing a Special Master, she made claims based on that sealed status report. The claims are not only probably false, but she effectively double counted the potentially privileged materials as both potentially privileged and personal. That was the means by which she found that Trump had a possessory interest in the items seized on August 8. So she likely can’t allow that status report to be unsealed, because if it were, her deceit would become evident.
Ironically (or perhaps cynically), Cannon cited the importance of the perception of fairness in that same ruling relying on the status report she won’t let the press see.
A commitment to the appearance of fairness is critical, now more than ever.
As Plaintiff articulated at the hearing, the investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness. See supra Discussion III–IV; see also In re Search Warrant Issued June 13, 2019, 942 F.3d at 182 (“[A]n award of injunctive relief in these circumstances supports the ‘strong public interest’ in the integrity of the judicial system.” (quoting United States v. Hasting, 461 U.S. 499, 527 (1983) (Brennan, J., concurring in part and dissenting in part))).
“[E]fficient criminal investigations are certainly desirable,” In re Search Warrant Issued June 13, 2019, 942 F.3d at 181, but so too are countervailing considerations of fair process and public trust.
But she only maintains this perception by stiff-arming the press and hiding that status report.
Thus far, she has gotten away with it. Not only isn’t the press calling her out for stiff-arming them, but they continue to quote what she says rather than reporting on what she does.
Update, 10/4: After she ordered the status report unsealed, Judge Cannon granted the motion to intervene prospectively.
I’m going to say upfront, as (hopefully) a form of inoculation, that Cannon a) is on course for SCOTUS, and b) should be impeached immediately.
You forgot the snark tag.
The word inoculation surely did that job.
Shirley, not enough. You riled our resident Saguaro.
Cannon is NOT on track for SCOTUS and is NOT going to get impeached. This is just nonsense.
Six years ago, would you have imagined that Judge Kavanaugh was on track to be a Supreme Court Justice?
Yes. He was marked early on for Big Things.
Cannon, not so much. But a girl can dream, right?
A DOJ position in the next GOP administration.
I don’t think she’d give up a lifetime appointment where she runs the show for a short-term gig working for someone else.
I think it would depend on the offered rank in the DOJ. Department head, at least.
Because YALE(!), of course.
This is not just about who wins the case, but how hard we fight and how well we use the tools given us, so I’m going to answer your point with an allegory about why conservatives control the agenda while progressives and Democrats are simply along for the ride:
On Tuesday night Republican mover and shaker, John Smith III, left his apartment around six pm to attend a dinner at the Belgian ambassador’s house. This was followed by his attendance at an absolutely stunning Georgetown party – no special occasion, just an opportunity for the important people to get together, drink, and do business. He met a pretty IMF staffer at the party and they ended up in her hotel room, where more drinking was done and a little nose-candy was consumed, followed by more sex and even more booze.
Home was too long a trip, and his office was within walking distance of the IMF staffer’s hotel, so John Smith III ended up falling asleep on the couch in his office, shirt unbuttoned, his bowtie in his jacket pocket, which he’d laid over the back of his very expensive desk chair.
John woke up around 7:00 am with the mother of all hangovers. Fortunately, there were a couple one-liter bottles of water in the mini-fridge, so he opened one, shakily took a couple aspirin, drank the rest of the bottle and dropped it on the floor, then laid back down on his couch. Due to his usual evening schedule of drinking and dealing he never made an appointment before noon, and he’d feel fine by then. During his sober moments – that is, from lunchtime until dinner – John sometimes realized that the full schedule of partying and powerbroking couldn’t last. In fact, it was harder every year – these days, harder each month, – and he didn’t doubt it would end in a heart-attack or stroke, but meanwhile he was enjoying the perks of power.
His executive assistant came in around nine-o-clock, checked on her boss, and started scanning the ‘Net for important political news. Around ten she read a very important story and realized she was going to have to wake him up. He’d be groggy or even worse, cranky, but the issue was immediately important and needed his guidance, preferably before reporters started calling the office, so she tiptoed into his room and gently grasped him by the shoulder.
“Mr. Smith,” she said quietly. “I’m sorry to wake you but-”
“Wha…?” He blinked his eyes and looked blearily at her.
“Justice Garcia, the Clinton-appointed judge who’s presiding over the Obama database breach, has ruled for the defense in the latest round of motions. The ruling violates the Fourth amendment, four laws about classified documents, the Espionage act and multiple Supreme Court precedents. People are already wondering if Obama’s blackmailing her. What’s our position on this?”
“Hold hearings.” Smith started to nod his head, then immediately stopped. “Impeach her.” The Republican congressman closed his eyes, rolled onto his side, and settled his unshaven cheek against the couch pillow. “Schedule a press conference. We’ll say she’s soft on…” A few seconds later he was snoring, and his assistant wondered if he’d ever really been awake.
“Soft on what?” Smith’s assistant didn’t need to ask the question out loud. Soft on crime, of course. Soft on immigrants. Soft on national security. Soft in the head. Soft on Trans-people. Win or lose the impeachment would be glorious – month after month of artificially-prolonged public shaming followed by a dramatic vote. Win or lose the point would be made, because you can beat the rap, but you can’t beat the ride, and even an unsuccessful impeachment would be red meat for the Republican base. And why not? True Americans don’t tolerate smug, liberal, pot-smoking hippie judges who are prejudiced against White people, so why not put this one through the ringer, just to make that very point!
Remember, before you overreact, that this has been an allegory. A fable, if you will, about Republican dominance.
..are you writing Republican fanfiction?
Dude, it’s a metaphor about how to successfully wield power (and hopefully in an ethical cause.)
Curious, when you tag specific journalists (well, reporters in the literal sense) on twitter pointing out they’re doing a lousy job, does it lead to their changing? I guess I don’t understand why journos who surely would acknowledge you have way more experience reading & analyzing filings, particularly those pertaining to national security matters, wouldn’t step up. Is it lack of time? Editorial pressure? Personal views/politics? Ego?
In any event, keep up the wonderful work. It is sincerely appreciated.
LOL This site has published 39 posts in which Haberman was mentioned of which 5 were tagged with her name. Haberman resolutely sticks to her access fuckery — now, with a book as well.
What may be more important isn’t any possible influence on specific journalists through media criticism, but the education of consumers of journalism. Imagine what might have happened if a majority of the public disbelieved NYT’s Judith Miller’s sketchy claims about aluminum tubes ahead of the Iraq war, as one example.
Before the Iraq War was the first time that I had written to a President. I said George, just don’t. Weapons of Mass Destruction, Axis of Evil, Sadam, oil, install friendly regime…bullshit. Real reasons: war is peace; big bad George; Exxon. Halliburton; arms sales; hegemony; lack of empathy; not the UN; lack of critical thinking by MSM and The Right. I’m still pissed off.
I copied my congressman…Mike Turner.
That did a lot of good, too. /s
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Marcy, you need to take a rest. I worry about your incredibly prolific output, which is not only incisive, but, exhaustively researched. You must have a team helping? I certainly hope you do. Stay vigorous and healthy.
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She’s here all week. Don’t forget to tip your server…
I am not an attorney, so I rely on the deep and broad expertise of Marcy and the others on this site with legal and national security backgrounds to evaluate underlying processes, but my assessment of Judge Cannon is that she is one of the most stunningly partisan jurists I have ever observed. The deference and preferential treatment she has accorded to Donald Trump regarding documents that aren’t even his, is mind-blowing! Does she think that no one is watching? These human time bombs that the Trump Administration left all over our legal system are going to be the most pernicious and lasting legacy of this foul group.
I think you are overlooking AG Bill Barr and he was at the top of the heap not in a small pond in Florida
Won’t be long before she gives a speech at some college, CPAC, or private event whining how the public has no right to question or be suspicious of the motives and integrity of the Federal Judiciary.
She’s opening for Justice Alito at the Hollywood Bowl on Friday.
You owe me a keyboard!
A little piece of my soul dies every time yet another event like this happens. It seems inconceivable that Trump could – publicly, without shame – break so many laws and continue to get away with it without being held accountable. Then again, I thought it was hilarious when Sarah Palin was nominated for VP and remember joking to my friends that she couldn’t keep her 16 year old daughter from getting knocked up, and she just quit being Governor for no apparent reason, who’d trust her as 2nd in line for the Presidency? And I’ve been wrong about common sense winning out over stupidity ever since. This blog reminds me that I’m not the only one disturbed by this stuff, which helps a little – thanks. I just wish there was something someone – anyone! – could do.
I hear you. We have deep shit on an increasing number of fronts.
Thanks, Marcy. Journalism died in the Reagan years, it seems.
It was dying before that.
For some time now I have been struck by how our news outlets are becoming more and more like the British Victorian newspapers as described by Dickens and Anthony Trollope, where every paper is the PR outlet for a particular party or politician, and all news is twisted to fit that party’s agenda.
I assume it’s because most of our press is no longer truly free and independent, but instead is owned by powerful private and corporate entities. I’m not knowledgeable about the history of journalism, but some of you are. What does history suggest could reverse this corruption of our free press?
I’m not nearly as knowledgable about the history of the press as I sometimes wish I was — nor nearly as knowledgable about the history of the press as your question requests and deserves.
But I’ll instead recall a memory of what some people hoped for and dreamed some decades ago…
We could see the ‘net rapidly becoming a global phenomenon. We had a theory that changing the tools of human communication would –must– change the nature of human communication. That changing the nature would change the substance. And that it would be for the better.
People who write and publish their own copy could conceivably make a better press.
Not really sure the weight of recorded history now supports that imagination. Yet there are still pages left to unfold.
We need to threaten the lives of reporters until they get it right.
/Sarcasm – naturally I’m not advocating violence, just noting the counter-currents to a perfect web.
Two good books on the USAmerican press at the beginning of the twentieth century will give you some perspective:
George Seldes’ Witness to a Century
(my notes at https://www.dailykos.com/stories/2008/11/19/663606/-)
Upton Sinclair’s The Brass Check
(my notes at https://www.dailykos.com/stories/2006/11/15/271728/-)
And I reiterate, time to reread Society of the Spectacle and Amusing Ourselves to Death.
P.S. It’s been ages since I read it, but iirc Bertram Gross wrote a bit about the news media’s role in the mystification of power in Friendly Fascism (https://en.m.wikipedia.org/wiki/Friendly_Fascism_(book)). I no longer have my copy, unfortunately, or I’d reread it before suggesting it as relevant. Mentioning it in case you haven’t read it and might find it interesting.
I’ve read Friendly Fascism and was thinking about going to my files the other day in order to look at his description of the characteristics of “friendly fascism” to freshen my recollection. Good book. (I borrowed it from my tai chi teacher.)
There may be one area legitimately in dispute: Congress’ attempted Legislative Branch’s legislative codification of the Presidential Records Act’s definition “Executive Privilege” within the Presidential Records Act being at odds with an Executive Branch’s bona fide Executive Privilege assertions (at that time that Executive Branch holding that Executive Privilege opinion is the current Executive).
Since 1978, any Constitutional Separation-of-Powers angle to the Presidential Records Act might simply have been hypothetically moot as all of the Executive Branches since 1978 might have agreed with the orderliness that the PRA brought to the process, but that doesn’t necessarily mean every Executive Branch may be ready to cede its definition of “Executive Privilege” to Congress in limiting its exercises of executive power, or especially in the areas where Congress’ legislative definition of what it’s calling “Executive Privilege” is at odds with what the Executive Branch views as its Executive Privilege.
Any such inter-branch disputes would rightfully belong to SCOTUS which traditionally long resists explicit acts but sought to have the two branches negotiate it out.
Since I am not a lawyer two simple questions:
1) Since the 11th circuit allowed DOJ to continue to investigate the documents marked classified, how important are the box loads of other materials relative their ability to bring indictments on the grounds of Mr. Trump’s possession and handling of the documents marked classified?
2) Contingently, what happens, if anything to the civil action brought by Mr. Trump before Judge Cannon if an indictment is brought? I assume DOJ could at some future date amend its indictment to include assertions and charges arising from materials currently interdicted by Judge Cannon unless the charges brought were adjudicated before Judge Cannon finishes, at a minimum.
They are important as part of the context in which the classified documents were held. For instance, suppose there are memos and letters based on a classified document that is next to them in a storage box. Those memos would not be marked classified, but surely would be considered classified as a matter of procedure.
A lot more along those lines is spelled out here.
What these dolts, especially at the editorial level who set the tone for coverage, don’t get is that if she does this, she’s going to be just as malignant when someone gets her on a case against them.
CNN got a ridiculous Project Veritas suit tossed by a federal judge this year, but what do they think will happen when Cannon ends up in charge in a similar suit? Wildly broad bans on reporting and publication? Orders to expose sources and data? They can’t assume she won’t cross all kinds of boundaries. They can recognize her for what she is now, or else suffer in silence before too long.
Insofar as the privilege report details (predominantly) potential attorney/client privilege documents, and atty/client privilege is held by the client, why wouldn’t the documents be considered both personal and privileged? They sound like personal documents under the PRA definition, and are potentially protected from being examined by the criminal investigations team because of attorney client privilege.
AIUI: That seems to be a question that Magistrate Judge Reinhart properly could be asked to rule on as it is subsequent to the search warrant he issued in a criminal investigation..
Bird-dogging the big time players this morning with Dr. EW’s prediction in mind, I thought that the Times team of Savage & Feuer seemed to heed those exact warnings. It read to me as if they had fully assimilated yesterday’s EW post about Cannon’s ruling.
The Post appears dazzled by internecine squabbles among Trump’s legal team. Their article replete with anonymous sources “close to the situation” and/or “familiar with his thinking” consisted almost entirely of gossip, planted (I’m guessing) by Chris Kise to distance himself from blundering Corcoran, Bobb, and Epshteyn. It even provided pictures(!) of signature pages to illustrate the absence of Kise’s signature from the most recent filing, a fact that could have been conveyed in a single sentence. Dawsey, Leonnig, and two others by-lined this, “with additional reporting by” almost everyone at WaPo. So … Hey, look over there!