Judge Aileen Cannon has rejected Judge Raymond Dearie’s attempts to force the former president to back up his declassification and evidence-planting claims.
Judge Aileen Cannon has rejected Judge Raymond Dearie’s attempts to force the former president to back up his declassification and evidence-planting claims.
F lorida federal district judge Aileen Cannon has once again curiously accommodated the former president who appointed her, Donald Trump, easing him out of the tight spot he’d been put in by Judge Raymond Dearie — the very special master whom she herself appointed at Trump’s request, but who has proved markedly less than accommodating.
Judge Dearie had directed Trump’s legal team, in essence, to back up his public claims that (a) he’d declassified documents that were seized from his Mar-a-Lago estate by the FBI pursuant to a search warrant; and (b) the FBI had planted incriminating evidence at Mar-a-Lago. In a six-page order issued on Thursday, Judge Cannon rejected this ultimatum.
Cannon and Dearie are both district judges. Dearie, 78, has been on the bench for 36 years since being appointed by President Reagan, sits in Brooklyn, and took the less burdensome senior status several years ago. He is not, however, participating in the Mar-a-Lago matter as a judge. Rather, the judge hearing the case, a civil matter filed by Trump as plaintiff in Florida, is Cannon, a 41-year-old who has been a judge since 2020. Dearie is serving — by Cannon’s appointment, at the recommendation of Trump, and with the agreement of the government — as a special master for the limited purpose of assisting Cannon by conducting the laborious review of over 11,000 documents (which Trump contends comprise over 200,000 pages) seized in the search. The purpose of the review is to determine which documents may be subject to either executive or attorney-client privilege, and which documents are either presidential or personal records under the Presidential Records Act.
As we’ve covered before, Cannon’s rulings have been extraordinarily favorable to Trump — unduly so, in fact, in the eyes of a three-judge panel of the Eleventh Circuit Court of Appeals (including two Trump appointees). The appellate court not only reversed Cannon’s rulings that the approximately 100 classified documents seized from Mar-a-Lago were to be reviewed by the special master, and that the government was barred from using those documents in its criminal investigation pending that review; the panel also rejected the major underpinnings of Cannon’s rationale for appointing a special master.
Nevertheless, the special-master review is going forward with respect to the non-classified documents (i.e., the vast majority of the documents) because, in the interest of speedy resolution of the most significant matters, the Justice Department only appealed the portion of Cannon’s rulings that pertained to the classified documents.
One is now left to wonder whether the government regrets the decision not to appeal Cannon’s rulings in their entirety, in light of the swiftness and thoroughness of that Eleventh Circuit rebuke. One must also wonder why, if Cannon is going to second-guess and micromanage a jurist far more experienced than she is — a jurist appointed at Trump’s own request and on his recommendation — she doesn’t simply dismiss Dearie and do the privilege review herself. (As special master, Dearie will make recommendations, but the final determinations will be made by Cannon.)
The reason, one supposes, is that Dearie’s role will save Cannon a lot of scut work. She is making it clear, though, that she expects the special master to treat Trump as if he were a defendant in a criminal case who has no burden of proof and should not be compelled to provide relevant information that could be used against him. Dearie is apt to find this difficult since, in point of fact, Trump is the plaintiff in a civil case — namely, his own petition for a special-master review — which means that he bears the burden of proof. (While this may strike some as unfair at first blush, it’s not. Trump was under no obligation to file a civil lawsuit, and had he not filed one, he’d have maintained whatever legal rights he has to assert privilege if the government later charged him with a crime. Instead, he chose to sue; when a litigant does that, he assumes the burden of proof.)
Dearie told Trump’s lawyers that he expected them to provide proof that Trump had declassified the documents marked classified. As I’ve explained, the Eleventh Circuit’s ruling, which took the documents marked as classified out of the special-master review, seemed to render that point moot. But not entirely, as it turned out.
The special-master process required the Justice Department, as an initial matter, to file a complete inventory of all the items seized and the locations from which the FBI says they were taken. In the next step, Dearie directed Trump’s team to file any objections germane to the accuracy of the inventory. Even though the classified documents are not being reviewed by the special master, the inventory lists them and the places from which they were taken.
If Trump were to concede the accuracy of the inventory, as Dearie directed, he would effectively be admitting, for example, that documents with classification markings were found by the FBI on August 8 in both his office and a storage room at Mar-a-Lago. This would be a problem, because on June 3, two months before the search, in response to a subpoena, Trump’s agents represented to the FBI and the grand jury that the 38 documents they surrendered that day were the only ones bearing classified markings that remained at Mar-a-Lago. That is, an admission by Trump at this point that the government’s inventory is accurate could later be used as evidence that Trump provided false representations to, and concealed documents from, the investigation — which would help prosecutors prove Espionage Act and obstruction charges.
That’s not all. Judge Dearie also wanted Trump to indicate whether he was contending that the government’s Mar-a-Lago seizure inventory omitted any items that were seized or included any items that were not actually seized. This was consistent with Dearie’s expectation that the Trump team would provide any evidence it has to back up Trump’s public claims that the FBI planted incriminating evidence or engaged in similarly corrupt conduct.
In her Thursday order, however, Judge Cannon clarified that when she directed the special master to verify that the government’s inventory “represents the full and accurate extent of the property seized from” Mar-a-Lago, she meant solely that Dearie should obtain representations to that effect from the government, not from Trump. (She had previously said that the methods available to Dearie “included” getting sworn affidavits from government officials; but she had not made that route exclusive — as she has now in response to Dearie’s indication that he wanted the plaintiff, Trump, to provide such representations, too.)
Cannon elaborated:
There shall be no separate requirement on Plaintiff at this stage, prior to the review of any of the Seized Materials, to lodge ex ante final objections to the accuracy of Defendant’s Inventory, its descriptions, or its contents.
It remains to be seen whether Cannon will require Trump to lay his cards on the table later, after he has gone through all the sealed documents (as opposed to now, when he has only the government’s inventory to work with).
At the behest of prosecutors, Judge Dearie had also instructed that, if Trump wanted to assert executive privilege as to the contents of any document, he should be forced to specify whether he was claiming (a) a privilege to conceal the document from people or entities outside the executive branch; or (b) a privilege to conceal the document from the incumbent executive branch. The Justice Department, of course, takes the position that, to the dubious extent that Trump, as a former president, retains executive privilege, (1) that privilege may not be asserted to withhold information from a criminal investigation (based on the Watergate precedent); and (2) that privilege may not in any event be asserted against the executive branch (because it belongs to the executive branch as a means of protecting the functions of the presidency, not to an individual who happens to hold — or to have held — the office, and who seeks to use it for his personal protection).
Trump does not want to be pinned down to a theory of executive privilege. He does not have a convincing rebuttal to the government’s position and thus prefers to make vague privilege claims. On this point, too, Judge Cannon appears to have sided with the former president. Her order allows him simply to claim “executive privilege.” She qualified that the Trump team must provide “a sufficient description of the rationale and scope of the assertion from which to evaluate the merits of the assertion.” It is not clear, though, exactly what that means, and it represents a departure from what the government sought and Dearie prescribed.
Judge Cannon also agreed to Trump proposals that are sure to delay the document review into next year. To move things along, Dearie had proposed that the vendors who are digitizing the seized documents begin turning them over gradually (on a “rolling basis”) next week, with Trump’s lodging his claims as he reviewed each batch.
Cannon has changed that plan. Under her order, Trump will not have to lodge his claims until three weeks after all of the documents have been produced. Cannon anticipates that happening by October 14, meaning Trump’s assertions would be due the first week of November. There would then be a ten-day period for inter-party negotiations. After that, the full trove of documents would be given to Dearie to identify disputes and make recommendations to Cannon as to how they should be resolved. Cannon’s order extends the deadline for completion of the special-master review from November 30 to December 16. There appears to be no deadline for when Cannon will rule on Dearie’s recommendations.
The Justice Department appealed Judge Cannon’s initial rulings appointing the special master only on the narrow issues related to the approximately 100 classified documents seized at Mar-a-Lago. Those are the ones most crucial to its case. Because prosecutors believe Cannon’s rulings were wrong in their entirety, and because the Eleventh Circuit appears to be receptive to that argument, the Justice Department must be giving thought to a broader appeal now. That would run the risk of slowing things down, so on balance the government will probably decide to swallow hard and try to live with Cannon’s interventions on Trump’s behalf. But we should no longer delude ourselves into thinking that the process underway is a special-master review by a veteran judge with deep experience in national-security issues who will force the Trump team to put up or shut up on the former president’s outlandish claims. Judge Cannon is calling the shots, and for now, that means Trump is out of a tight spot.