Even Trump’s own appointees had no patience for the rogue judge who sabotaged the DOJ investigation into the former president.
Allow me to summarize a federal appeals court decision gutting a series of pro-Trump orders with a single scene from the 1995 failson comedy Billy Madison: As the appeals court decision makes clear, everyone who read Judge Aileen Cannon’s decisions benefiting Trump is now less intelligent for having done so.
The United States Court of Appeals for the 11th Circuit’s decision in Trump v. United States utterly savages former President Donald Trump’s efforts to slow down a criminal investigation into classified documents that the FBI seized from Mar-a-Lago, his Florida residence. It is equally dismissive of Cannon, the Trump-appointed federal district judge in Florida who ordered the Justice Department to halt this criminal investigation, at least temporarily.
Notably, the appeals panel includes two other judges who, like Cannon, were appointed by Trump. But these two Trump judges give Cannon no quarter. Their opinion identifies more than a dozen legal errors in Cannon’s decisions, some of them quite obvious and egregious.
One of the central issues in this case, for example, is whether Trump could require the FBI to return more than 100 documents seized from his residence, all of which are marked as classified, because they may be his property. But, as the 11th Circuit notes, the executive order laying out the rules governing classified documents states that such documents are “owned by, produced by or for, or [are] under the control of the United States Government.”
Classified documents, by definition, are not the property of a former government official like Trump.
The upshot of the 11th Circuit’s order is that the FBI may continue its criminal probe into whether Trump violated federal criminal laws governing the handling of national defense information, including the Espionage Act. Trump could conceivably ask the Supreme Court to reinstate Cannon’s original decision, but he is unlikely to prevail there. While the Court’s 6-3 Republican-appointed majority often takes extraordinary steps to ensure that the conservative policies Trump supported during his administration remain in effect, they’ve shown far less personal deference to Trump himself.
Last January, for example, the Supreme Court allowed the US House committee investigating the January 6 attack on the US Capitol to obtain Trump White House documents against Trump’s objections. Only Justice Clarence Thomas publicly noted his dissent.
It is fairly likely, in other words, that this embarrassing chapter for Judge Cannon — and for the federal judiciary — will come to a close soon.
How we got here
In August, the FBI executed a search warrant at Mar-a-Lago; among other things, the warrant sought “physical documents with classification markings” that the FBI believed Trump was holding at his residence.
The Constitution does require the FBI to comply with certain restrictions before it can search a private citizen’s home or seize anything from it. Any law enforcement officer wishing to conduct such a search must have probable cause to justify it, and they must obtain a warrant from a neutral magistrate. The FBI complied with both of these requirements before searching Trump’s home — where they recovered several boxes of papers, including the more than 100 classified documents.
Nevertheless, Cannon determined that Trump is entitled to additional protections that are rarely afforded to any criminal suspect, in large part because of Trump’s “former position as President of the United States.” She also ordered the DOJ to halt its criminal investigation into the documents seized at Mar-a-Lago until a court-appointed official known as a “special master” reviews them.
Although this order permitted the DOJ to continue a parallel investigation assessing how Trump’s possession of these documents might have damaged national security, the Justice Department warned Cannon that the two investigations “cannot be readily separated,” in no small part because they are being conducted by the same personnel.
Cannon wasn’t swayed, and last week she appointed Raymond Dearie, a senior federal judge, as that special master to review the documents.
Meanwhile, the Justice Department sought limited relief from the 11th Circuit. The DOJ has not yet challenged Cannon’s order appointing the special master, or instructing him to comb through the non-classified documents seized from Trump. But it did seek the appeals court’s permission to continue its criminal and national security investigations into the classified materials. It also sought an order preventing either the special master or Trump’s lawyers from seeing the classified documents.
On Wednesday evening, a three-judge 11th Circuit panel — which includes Trump appointees Britt Grant and Andrew Brasher — granted both of the DOJ’s requests.
The 11th Circuit’s opinion paints Cannon as a hack, an incompetent, or both
The panel’s opinion is 29 pages long, and about half of those pages are devoted to reciting the facts of the case and summarizing what has happened in this litigation so far. The court doesn’t actually begin its legal analysis of Cannon’s orders until page 15 of the opinion, but it quickly identifies a fatal error in her reasoning.
While there are extraordinary circumstances where a court may need to step in after law enforcement seizes property pursuant to a valid warrant, the 11th Circuit explains, those extraordinary circumstances only arise when the government “displayed a callous disregard” for a criminal suspect’s constitutional rights. But Cannon conceded in her decisions that the Justice Department has not shown such disregard for Trump’s rights.
That alone, according to the opinion, “is reason enough to conclude that the district court abused its discretion” in ruling in favor of Trump.
Having identified this error, the 11th Circuit then spends an additional 12 pages flagging more than a dozen other errors in Cannon’s reasoning. Among other things, the court notes that Trump cannot possibly have a personal interest in retaining classified government documents. It explains that there is “no evidence that any of these records were declassified.” And it holds that Cannon was wrong to order the Justice Department to show these documents to the special master or to Trump’s lawyers.
“The Supreme Court has recognized that for reasons ‘too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it,’” the 11th Circuit explains, quoting from the Supreme Court’s decision in Department of the Navy v. Egan (1988).
Again, Trump could conceivably ask the Supreme Court to reinstate Cannon’s original order. But he just lost before a conservative panel dominated by judges that he appointed. So it is unlikely that even this Supreme Court will side with him.
And because the most important parts of Cannon’s order have now been blocked by the 11th Circuit, the Supreme Court’s GOP-appointed majority cannot simply sit on the case for months before eventually reversing Cannon — a tactic the justices have used in the past to leave legally dubious lower court orders reinstating Trump-era policies in place for nearly a year.
It is likely, in other words, that the DOJ will be allowed to continue its criminal investigation into Trump without significant further interference from Judge Cannon — or elsewhere in the judiciary.
Author: Ian Millhiser