Aileen Cannon Deliberately Harmed Trump To Create an Excuse to Help Him
On September 5, Judge Aileen Cannon ruled that depriving Donald Trump of personal items constituted “real harm.”
being deprived of potentially significant personal documents  creates a real harm
Yesterday, the newly unsealed filter team status report revealed that, for two weeks, Judge Cannon deliberately inflicted that harm on Trump.
That’s because on August 30, DOJ’s filter team told her that they wanted to return the original copies of documents designated as Category B — 43 sets of documents amounting to 382 pages of documents — to Trump.
[T]he PrivilegeReview Team proposes to return the originals and provide a Bates-stamped control copy to the Plaintiff. Many of these materials do not appear to be privileged (although one appears to be.11), but they are all either legal in nature (e.g.,settlement, non-disclosure, and retainer agreements) or otherwise potentially sensitive, and they do not appear to be themselves government or Presidential Records or classified documents.
These documents were lawfully seized: many were likely in the desk drawer in which Trump also had a document marked Confidential and another document marked Secret. The others would have been seized from the storage closet where Trump was hiding 79 documents with classification markings. But on August 30, DOJ proposed to Aileen Cannon that they give them back.
Then, the next day, on September 1, filter attorney Benjamin Hawk asked for permission to pursue “the proposal that we offered,” which, in addition to providing Trump with Bates-stamped copies of all the documents treated as potentially privileged, would also include (per the status report that had been discussed at length in the hearing) giving him the originals back.
MR. HAWK: Your Honor, if I may.
THE COURT: Yes.
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. I think Mr. Bratt is hoping to get a few more minutes in.
In response to a request to (among other things) give the originals of Trump’s personal documents back, Cannon declined to approve the request. Had she approved it, 382 pages of personal documents would have been back in Trump’s custody right away. He would no longer have been deprived of those potentially significant personal documents. The harm that Cannon said was caused by his deprivation of those documents would be ended.
And that is precisely the harm she cited when she first ruled that a Special Master had to review the documents that she had prevented DOJ from returning to Trump. Indeed, she claimed there was a dispute about the very personal property that DOJ had tried to give back five days earlier.
Although some of the seized items (e.g., articles of clothing) appear to be readily identifiable as personal property, the parties’ submissions suggest the existence of genuine disputes as to (1) whether certain seized documents constitute personal or presidential records, and (2) whether certain seized personal effects have evidentiary value. Because those disputes are bound up with Plaintiff’s Rule 41(g) request and involve issues of fact, the Court “must receive evidence” from the parties thereon. See Fed. R. Crim. P. 41(g) (“The court must receive evidence on any factual issue necessary to decide the motion.”). That step calls for comprehensive review of the seized property.
Review is further warranted, as previewed, for determinations of privilege. The Government forcefully objects, even with respect to attorney-client privilege, pointing out that the Privilege Review Team already has screened the seized property and is prepared to turn over approximately 520 pages of potentially privileged material for court review pursuant to the previously approved ex parte filter protocol [ECF No. 48 p. 14]. In plain terms, the Government’s position is that another round of screening would be “unnecessary” [ECF No. 48 p. 22]. The Court takes a different view on this record.
By that point, she had personally been responsible for depriving Trump of 382 pages of documents for five days.
She would cite back to this passage, claiming a dispute including over documents DOJ had tried to give back, when she refused to stay her injunction on investigating the classified documents.
To further expand the point, and as more fully explained in the September 5 Order, the Government seized a high volume of materials from Plaintiff’s residence on August 8, 2022 [ECF No. 64 p. 4]; some of those materials undisputedly constitute personal property and/or privileged materials [ECF No. 64 p. 13]; the record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials [ECF No. 64 p. 14]; and there are documented instances giving rise to concerns about the Government’s ability to properly categorize and screen materials [ECF No. 64 p. 15]. Furthermore, although the Government emphasizes what it perceives to be Plaintiff’s insufficiently particularized showing on various document-specific assertions [ECF No. 69 p. 11; ECF No. 88 pp. 3–7], it remains the case that Plaintiff has not had a meaningful ability to concretize his position with respect to the seized materials given (1) the ex parte nature of the approved filter protocol, (2) the relatively generalized nature of the Government’s “Detailed Property Inventory” [ECF No. 39-1], and (3) Plaintiff’s unsuccessful efforts, pre-suit, to gather more information from the Government about the content of the seized materials [ECF No. 1 pp. 3, 8–9 (describing Plaintiff’s rejected requests to obtain a list of exactly what was taken and from where, to inspect the seized property, and to obtain information regarding potentially privileged documents)]. [my emphasis]
The only dispute here was between Cannon and the government! They had already asked to give Trump’s personal documents back, and she refused to grant permission to do that.
And Cannon pointed to those personal items — items the government had already tried to give back — when she refused to lift her injunction on investigating classified documents.
Again, the September 5 Order imposes a temporary restraint on certain review and use of the seized materials, in natural conjunction with the special master process, only for the period of time required to resolve any categorization disputes and rule on Plaintiff’s Rule 41(g) requests. This restriction is not out of step with the logical approach approved and used for special master review in other cases, often with the consent of the government, and it is warranted here to reinforce the value of the Special Master, to protect against unwarranted disclosure and use of potentially privileged and personal material pending completion of the review process, and to ensure public trust.
And the Court remains firmly of the view that appointment of a special master to conduct a review of the seized materials, accompanied by a temporary injunction to avoid unwarranted use and disclosure of potentially privileged and/or personal materials, is fully consonant with the foregoing principles and with the need to ensure at least the appearance of fairness and integrity under unprecedented circumstances.
As I have noted, there was just one clearly privileged document among the 11,000 seized on August 8. DOJ had tried to give it, along with some personal documents, back on August 30. Yet that is precisely what Cannon pointed to — the harm that she herself was sustaining — in her justification to hold up an investigation into 103 highly classified documents stored in a beach resort targeted by foreign spies.
She put the entire country at risk because of a harm she herself continued an extra two weeks.
And that’s not the only harm that Judge Cannon inflicted on Trump to justify interfering in this case.
First, we now know that her reference to tax and medical and accounting information was to the Category B documents — the ones that DOJ had already attempted to give back.
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;
I had mistakenly believed she was relying on the privilege status report — a document which the filter attorneys had said could safely be shared publicly. The status report doesn’t mention those specific documents at all (unless the Morgan Lewis document explicitly referenced accounting). Those references are to still-sealed information.
She’s the leak she claimed threatened Trump’s reputation.
Worse still, it’s now clear those really may be Trump’s personal accounting and tax documents (something that I previously thought was unlikely). If so, Cannon’s reference to that still-sealed information revealed to Tish James that documents potentially responsive to subpoenas — documents that Alina Habba swore did not exist — may soon be found at Mar-a-Lago.
Since she got this lawsuit, Judge Cannon has been doing backflips to try to help Trump. That goes so far as inflicting harm that she then uses to justify intervening.
Someone please explain…
What’s the exact legal definition of ‘holistically’ when used in this context?
I think of it as one of those words that used to mean something–and may mean something again someday–but has been used, abused, and overused to the point that it’s just an empty sound. I would add the following words to the list: strategic, clinical, gestalt, transparent, and bombshell. I’m sure there are more.
“Natural,” also a word used by Cannon in close proximity to “logical.” Nature is what people tend to appeal to when they sense (or they know) that they don’t actually have very good reasons. I take holistically to be a similar word, i.e., appeal to some numinous sense of “wholeness” when one doesn’t, on the individual facts, have a case that will stand up.
Nah, I think she doesn’t know what “holistically” means. She’s taken a noun, holistic, and turned it into an adverb to describe how she wants to approach all the documents. What she means is “in toto.” She confuses “whole” with “holistic,” though they are etymologically related. But she doesn’t know that. She’s a crooked judge, not a naturopath.
In this case, I think she was saying she wanted to consider all of the documents together rather than subsets of documents.
That’s also how I understood it. At every point, DoJ has sought ways to start working through the documents in piecemeal fashion. They want to start drilling down on areas of dispute, get a read on how much BS Donald is going to attempt, and putting various documents to bed.
Cannon doesn’t want her patron to have to bind himself to any particular story, and keeping things nebulous gives her more room for shenanigans. Ergo, any time DoJ (or Dearie) suggests a piecemeal approach, she jumps in and rules “no, let’s do it all at once (several months from now)”
The DCC shanghai can’t happen fast enough. As a question for our legal minds, is there an end point for Cannon’s trickeration? Or, does she have more things she can do to hobble DoJ?
Cannon is still doing a better job defending Trump than the rest of his Florida defense team. Pity she’s not formally on it, because Trump might have had a malpractice case against her.
Man, you crack me up. I look for your comments because they’re informed, but your humor is especially worth seeking. Kudos!
First of all, I’m relatively new here. Been reading for about 2 months now – and I know very little about the law so I do have a difficult time understanding a lot here, but I’m trying. There’s one thing in the newly unsealed filter team status report released yesterday – it mentions a “39-page set of materials that appears to reflect the former ‘President’s calls’ and include the Presidential Seal.” Could this be the missing call log from January 6th???
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The missing official WH switchboard call logs were not hand-written [as these are described to be], so I’m thinking these are not that. See this comment about the call logs: https://www.emptywheel.net/2022/03/25/clarence-thomas-would-also-have-hidden-the-missing-mark-meadows-texts/#comment-928792
I do think there’s a good chance these could be off-the-official-record calls from J6, though. Marcy included discussion of these docs in her previous post: https://www.emptywheel.net/2022/10/04/what-happened-with-the-potentially-privileged-documents-seized-from-mar-a-lago/
If I can locate any other information, I will post it there.
Is that really likely, given the known dates of news clippings from these boxes? I’d think it would be more likely those logs remain in boxes not yet seized, possibly at other Trump properties or in the keeping of Trump allies, if they still physically exist at all.
That’s a good point. I wonder if we’ll ever find out.
Is there any way that other investigations can get access to the documents from the Mar-a-Lago search? It seems likely that there are documents from Mar-a-Lago that are responsive to the NY State investigation. And perhaps also to the DoJ investigations of J6.
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she sed: “going to reserve ruling on that request” …
i’ll look, but also ask: did she rule ?
never mind. i have an eye-ache.
I really want someone from the 11th Circuit Court and someone from DOJ to sit down with her and explain in small words that she can be a judge, or she can be a lawyer for the former guy, but she can’t be both at the same time, and she has to choose NOW, and fix the damage she’s already done with her actions.
And the damage she’s done to her reputation, too…
Don’t forget her reputation…
I doubt she’s doing this for an audience that thinks her actions damage her reputation?
She can always sue herself for, say, $475 million sesterces.
Aileen Cannon Deliberately Harmed Trump To Create an Excuse to Help Him
“This is going to hurt me more than it hurts you”
I’m curious about what Cannon wrote here:
“This restriction is not out of step with the logical approach approved and used for special master review in other cases, often with the consent of the government”
In what past cases did the government consent to being barred from investigating stolen classified documents for the sake of special master review?
Let’s see how her routine scores with the judges . . .
From the DOJ, a 3.0
From the 11th Circuit, 4.1
From Emptywheel, a 2.5
From Legal Twitter, 3.8
From the Russian judge, 9.8
From the Russian judge, 9.8
and that’s on a scale of 6
You beat me to it.
Though I think the Russian judge gives her a 12.
So first I was like, “No no, for that joke format, it’s funnier if it’s the East German judge.”
Then I remembered how long ago the Berlin Wall fell. So now I just feel old.
You and me both. When I first started typing that last line, I started “Ea…” then realized that Russian would be better, on a number of levels.
Why not a 10? In all my years observing them, those judges have been pretty shameless.
Bulgarian, hands down
The 11th Circuit needs to intervene again. And the DOJ needs a huddle to come up with a swift motion.
An interesting variation on the old saw:
“Your honor, please have mercy on me for having my parents killed, for I am now an orphan!”
“As I am the one who shot them, I will!”
Trying my best to follow this tangle, for which EW is a lifeline. What happens if the 11th circuit does rule in DOJ’s favor? Does that effectively end Cannon’s involvement? Or is she still free to run amok, as it were, as she seems to have basically ignored their previous ruling.
This just came in: https://www.cnn.com/2022/10/04/politics/trump-supreme-court-mar-a-lago-appeal/index.html
Former President Donald Trump has asked the Supreme Court to intervene in the dispute over materials the FBI seized from his Mar-a-Lago estate this summer.
The article doesn’t link to Trump’s filing. It’s just a few sentences.
Marcy has it here from Politico:
3:50 PM · Oct 4, 2022
3:43 PM · Oct 4, 2022
Indictment may be incoming. This is quite the desperate move, which this court should refuse to hear. I can see Barrett entertaining this considering how dumb she is, and Alito, because he’s pure evil. I can’t see Roberts, Gorsuch, Thomas and Kavanaugh agreeing. And two justices is not enough to take this on.
Wheeler: “Trump, who has not claimed to have declassified ANY of these docs says that if classification markings determine classification then it’s an assault on the Chief Executive, who is not Trump. “
I guess the former guy wants his Hoboken Squat Cobbler tape back in a bad way…
It’s easy to find at SCOTUS.gov’s docket tab. Type in “Trump 2022” and it comes up first.
Kise was putting his hours in here. Main argument: 11th Circuit did not have jurisdiction to rule on special master because appointment is non-appealable and hadn’t yet been made when DOJ filed for stay. They continue to bay at the declassification moon, still in hypothetical terms, insisting the person they refer to as “President Trump” *could have* declassified everything at 11:59 a.m. on January 20, 2021.
I think they’re trying to tempt Gorsuch and Kav with the possibility of setting precedent re: appellate discretion, on which they suggest SCOTUS has had a lax record. They have little to work with, but they work it to death.
[username expanded to 8 characters]
The filing to vacate 11 Circuit stay of Cannon’s order
Informative THREAD from Steve Vladeck:
5:18 PM · Oct 4, 2022
MARCY has a post up about this:
Trump asks Supreme Court to intervene in Mar-a-Lago document case…
And the train arrives at the station!
Among the many problems with Trump’s application to the Supreme Court to vacate the 11th Circuit’s stay is that the lower court judge already amended her orders and removed the classified documents altogether …
I thought that Trusty guy was too busy sorting through documents or filing a suit against CNN.
Turns out he was working on a 296 page appeal to the SC.
Well, his unpaid lawyers were.
So, according to Marcy “Trump is both claiming that Exec has absolute authority to determine who accesses classified docs…”
And Trump is arguing Cannon should have final say on what is classified or not.
“A Circuit Justice has jurisdiction to vacate a stay where it appears that the rights of the parties to a case pending in the court of appeals, which case could and very likely would be reviewed here upon final disposition in the court of appeals, may be seriously and irreparably injured by the stay, and the Circuit Justice is of the opinion that the court of appeals is demonstrably wrong in its application of accepted standards in deciding to issue the stay.”
Ummm is this arguing Thomas alone can vacate the stay?
I have the same question, but was reluctant to ask.
As MTW tasks herculean (wonder woman?), I’m happy to wait for a response.
On emergency filings, the SCOTUS justice assigned to the appellate circuit can rule on their own, or refer it to the whole court. I believe if the justice rules alone against the party making the filing, they can ask that the whole court look at it, but I am not completely sure about that.
The key word here is “emergency”. Generally speaking, each justice tries to be pretty careful about making unilateral decisions that they aren’t absolutely sure their colleagues would agree with.
And slowly confirming (or not) the underlying classification status of documents takes a slow moving baby step forwards towards its particular resolution.
Could Trump try to re-use his “Standing order” defense on whether the documents are considered personal or Presidential? The PRA “requires that all materials produced or received by the President, ‘to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately”‘.
Could they argue the scenario that Trump, in the act of being handed a document, de-classified them by thinking about it as the document was being handed to him, and upon receipt in his hand categorized everything as personal? This would seem to match up with the thought pattern of Trump asking if he could keep a copy of a document after a meeting, and then it becomes HIS.
This tactic seems like it would be a silly method to change all documents he receives to non-classified Personal documents, which then gives him the ‘I can do anything I want’ or ‘get-out-of-jail-free’ card he wants. It would be leveraging the “received by the President” and “upon…receipt” words in the PRA law in ways that they are never intended. Lawyers are good at finding loopholes.
Sure, just like Nixon used “when the president does it, it’s not illegal” as a defense.
Marcy and EW contributors,
I came here today, as I do every day, for cogent analysis and my mental health.
You never disappoint.
If you feel even a fraction of this, please remember to support empty wheel as often as you can.
If nothing else, send $2 bucks every time you hear journalists enabling fg shite or each time you cite her rebuttals.
It adds up quickly.