Trump-Appointed Judge Shields Ex-President From Accountability for Taking Docs

Donald Trump’s packing of the federal courts with judges chosen by the right-wing Federalist Society during his presidency is reaping dividends for him.

Two weeks after the FBI lawfully seized 11,000 government documents (more than 100 of them with classification markings) from Mar-a-Lago on August 8, Donald Trump asked a Florida judge to delay the Department of Justice’s (DOJ) investigation into three federal felonies. Trump instead of filing his motion to the District of Columbia, where the search warrant was issued. Instead, he forum-shopped and selected a judge he had appointed.

Trump requested that U.S. District Judge Aileen Cannon appoint a “special master” to sift through all of the seized documents for materials that might be covered by the attorney-client privilege and executive privilege.

In a September 5 orderJudge Cannon, a member the Federalist Society, is a shoddy lawyer. complied with Trump’s request.

Despite the fact that the DOJ’s filter team had already examined the documents and set aside those that might be protected by the attorney-client privilege, Judge Cannon empowered a yet-to-be-named special master (probably a retired judge) to inspect the documents. Pursuant to the judge’s order, the special master’s remit will also include sorting them for any protected by executive privilege.

Ex-presidents are not entitled to executive privilege. This privilege belongs to the current president. Executive privilege claims are made when an executive seeks to restrict access to certain documents to congressional committees. However, this does not apply when an ex-executive wants to keep documents from the current president. (The DOJ forms part of the executive branches.

After consulting with the acting national archiver, President Joe Biden decided not to assert executive privilege over seized documents. Moreover, it is not the role of a special master (who generally sorts documents seized from lawyers’ offices for attorney-client privilege) to make determinations about executive privilege.

Trump attempted to stop the National Archives from releasing government documents to the House Select Committee that was investigating the January 6 insurrection in December 2021. U.S. District Judge Tanya S. Chutkan roundly denied Trump’s executive privilege claim, noting that “Plaintiff [Trump] does not acknowledge the deference owed to the incumbent President’s judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power ‘exists in perpetuity.’” But, Judge Chutkan noted, “Presidents are not kings, and Plaintiff is not President.”

Judge Cannon ruled the DOJ must cease its review of Mar-a-Lago materials seized for investigation purposes, even though the special master may continue to peruse them. But she did allow the government to continue its review and use of the seized materials “for purposes of intelligence classification and national security assessments.”

Expressing concern about the “appearance and integrity under the extraordinary circumstances” of this case, Judge Cannon worried that Trump might suffer “reputational harm” from a “future indictment.” Writing that the seizure of materials was “in a league of its own,” she fretted that Trump could endure a “stigma.” As some of the materials seized on August 8 included personal records, Judge Cannon wrote that Trump would face “unquantifiable potential harm” from the “improper disclosure of sensitive information to the public.”

DOJ Appeals Judge Cannon’s Ruling

The DOJ filed an application on September 8 a notice of appeal of Judge Cannon’s order in the Eleventh Circuit Court of Appeals.

The DOJ is also involved. filed a motionRequesting Judge Cannon to temporarily halt her order in the event of an appeal. It requested that she lift her injunction on the DOJ’s review and use of the 100-plus documents with classification markings for its criminal investigation. The DOJ also asked Judge Cannon to exclude the 100-plus documents with classification markings from the special master’s review of the 11,000 documents.

The intelligence community’s review of the classified documents can’t be separated from the DOJ’s and FBI’s criminal investigation as they are “inextricably intertwined,” the DOJ argued in its motion. “[T]he government and the public are irreparably injured when a criminal investigation of matters involving risks to national security is enjoined.” If the DOJ is prevented from using the classified records in its criminal investigation and taking remedial action, it would risk “irreparable harm to our national security and intelligence interests.”

On September 6, 2008, it was indeed. The Washington PostIt was revealed that some documents seized at Mar-a-Lago contained highly secret material about a foreign nation’s nuclear capabilities.

In its motion for a stay, the DOJ said it would make available to Trump all unclassified documents seized in the search, both personal and government records, and would return Trump’s personal items that weren’t commingled with classified records.

The Presidential Records Act says, “The United States shall reserve and retain complete ownership, possession, and control of Presidential records.” Trump, the DOJ argued, has no right to the “return” of classified documents since they are not his property and would not reveal sensitive personal information.

Trump and DOJ Present Proposals for Special Master’s Identity and Remit

On September 9, pursuant to Judge Cannon’s order, Trump and DOJ presented a “joint filing” suggesting special master candidates and proposals for the parameters of the special master’s task. Both sides failed to agree on the role of special master and the duties of the special master.

The DOJ proposed two former Federal District Court Judges, Barbara Jones (a Clinton appointee), Thomas Griffith (a George W. Bush Appointee). Jones was special master in cases involving Rudy Giuliani’s and Michael Cohen’s lawyers. Griffith wrote opinions in administrative cases and congressional investigations.

Trump proposed Raymond Dearie, a retired Federal District Court judge (a Reagan appointee), and Paul Huck, formerly Florida deputy attorney general. Dearie was U.S. Assistant for the Eastern District of New York. He also served on the Foreign Intelligence Surveillance Court. Huck, the founder of The Huck Law Firm is married to a Trump-appointed judge at the Eleventh Circuit Court of Appeals.

Team Trump asks the special master to review all documents seized, including the 100-plus items marked with classification markings, and determine whether they are eligible for executive privilege. Trump suggests that the special master’s work be completed within 90 days.

The DOJ seeks to omit the documents with classification markings from the special master’s review and prevent the special master from making executive privilege determinations. The DOJ wants a deadline of October 17 for the completion of the special master’s task and says Trump should pay for the special master he requested. Trump believes that taxpayers should be shared in the expense.

Judge Cannon will review the positions of both parties, appoint a special master, and set the parameters for his or her work.

The DOJ’s appeal of Judge Cannon’s September 5 ruling will be heard by a three-judge panel of the Eleventh Circuit. Six of the eleven current judges on that court are Trump appointees. Cannon would nominate Huck to be his special master. His wife would need to withdraw from the appeal. After the panel’s ruling, the entire appellate court could review the case en banc.

When Trump was running for president, he promised to delegate the selection of his judicial appointments to the Federalist Society, a conservative/libertarian organization that advocates for an originalist interpretation of the Constitution. “We’re going to have great judges, conservative, all picked by the Federalist Society,” he declared in an interview with Breitbart News Radio. Trump selected his judges from the Federalist Society’s lists.

Trump appointed 226 judgesto the federal court. In total, 54 circuit court judges were appointed in four years. This is one less than the 55 Barack Obama had appointed during his two terms. Circuit courts of appeals are where most federal appellate decisions are made.

All of these Trump’s Supreme Court appointments and approximately half of his federal court judgesare members of The Federalist Society

If you have a complaint about the documents, we will investigate. ultimately reaches the Supreme Court, six radical right-wingers — three of whom were appointed by Trump — will rule on it.

As Trump’s judicial appointees intervene on his behalf, they will present further obstacles to holding the former president accountable for his myriad crimes.