Jennifer Rodgers writes Judge Aileen Cannon’s decision to appoint a special master to review documents seized by the FBI during a search of Trump’s property last month is extremely weak in its legal reasoning and ripe for appeal.
US District Judge Aileen Cannon issued a stunning, if not entirely surprising, order Monday granting former President Donald Trump’s request for a special master to review documents the FBI seized last month at his Mar-a-Lago resort. She also enjoined the FBI and the Department of Justice from reviewing or using those documents in its criminal investigation.
Cannon had previewed this result — both with her questions and statements at Thursday’s hearing — as well as in her initial scheduling order before the Justice Department even had an opportunity to be heard. But when it arrived, the judge’s written order struck many legal experts, including me, as being extremely weak in its legal analysis. Here’s why.
To exercise jurisdiction, Cannon had to find « exceptional circumstances, » which in turn refers to a set of criteria for the judge to consider. A similarly high burden applied to the judge’s decision whether to appoint a special master and whether to enjoin the Justice Department from possessing the seized materials — notably, only one of these things, the special master, was requested by Trump’s team; Cannon helpfully volunteered the other. Each of these requests also had their own legal requirements, with the burden again on Trump to show he was entitled to the relief sought.
On all these legal questions, Cannon’s consideration of these issues was superficial and conclusory. For example, she determined that Trump would be irreparably injured in part because he has a need for the documents seized, in part because information about these items may be leaked to the press and harm him and in part because these documents may subject him to criminal prosecution.
But the judge neither cited nor sought any information about what documents Trump alleges he may need. (Anyone subject to a search arguably has a similar need without justifying special master review.
