An ominous court ruling gives Trump his first major victory as he fends off a criminal investigation following the search at Mar-a-Lago.
On Monday, Donald Trump got a significant legal victory in the wake of the search of his Mar-a-Lago home last month as part of the Justice Department’s investigation concerning his potentially unlawful retention of sensitive government documents. Federal district court judge Aileen Cannon, a Trump appointee who was confirmed by the Senate shortly after Trump lost the 2020 election, issued a decision granting Trump’s request for an independent third party known as a special master to review the evidence taken and temporarily prohibiting the department from “using the seized materials for investigative purposes.”
The decision is not exactly surprising, since Cannon had explicitly said more than a week before her ruling — before she had even heard the Justice Department’s position — that she was inclined to grant Trump’s request. The ruling may have been expected, but it was still largely specious. I say “largely” because some of the arguments that the government advanced — that Trump had no standing even to go to court or perhaps had waited too long to do so — were in fact very dubious. Still, the ruling likely came as a shock to many people, since quite a few legal observers have been claiming that a criminal case against Trump is a slam dunk — that it would be “relatively easy” for prosecutors to charge Trump; in fact, so easy that pleading guilty “may be the best move Trump has left.” Cannon’s decision is yet another reminder that confidently predicting the trajectory of a Trump investigation can be a perilous business.
On the core issues, however, the judge adopted the most Trump-friendly reading of the law and the facts. Most notably, the ruling provides for a special-master review that would include Trump’s claims of “executive privilege,” but as many people have noted by now, it is far from clear how a special master should adjudicate a dispute between the current and former presidents on this subject, which happens to be a notoriously murky and unsettled area of the law. Cannon largely ignored these legal and practical difficulties, which are likely to be a major source of contention between the parties if the special-master process goes forward and even if the Justice Department decides not to immediately appeal Monday’s decision.
The quality of the opinion’s analysis on narrower and more discrete points is extremely questionable. Cannon placed great weight, for instance, on the fact that the government apparently obtained some “medical documents, correspondence related to taxes, and accounting information” in the course of the search, but by itself, that fact is not particularly surprising. After all, the investigation concerns whether Trump improperly retained government documents by unlawfully treating them like his personal effects and whether he lied to cover it up. Under the circumstances, any competent prosecutor — for what it’s worth, Cannon is a former prosecutor — would have to at least wonder whether Trump and his team deliberately intermingled the government documents among his personal belongings in order to make them harder for the Justice Department to locate and recover in a search.
The judge found that Trump would incur a “risk of irreparable injury” without a special master, but if you took Trump’s status as a former president out of the equation, none of the judge’s conclusions on this point make much sense. She concluded that Trump would be “deprived of potentially significant personal documents,” but there was no showing by Trump’s lawyers of any real risk on this front; it’s not even clear that these were the only copies of the relevant documents.
