For Donald Trump, it was the first piece of good news in the Mar-a-Lago affair. Judge Aileen Cannon announced in writing on Monday that she would have the documents confiscated from the ex-president's estate checked by a special representative - and that the US authorities would stop their inspection until then. For many legal experts, however, the decision of the 41-year-olds from Florida appointed by Trump in 2020 is a hair-raising misjudgment.
"This was an unprecedented intervention by a federal district judge amid an ongoing criminal and security investigation," Stephen I. Vladeck, a law professor at the University of Texas, commented on Cannon's decision in the New York Times. And CNN analyst and former federal prosecutor Jennifer Rodgers says: "The judge's decision strikes many legal experts, including myself, as extremely weak in its legal analysis."
Cannon on Monday upheld a lawsuit filed by Trump's legal team and ordered the appointment of a neutral special agent to review the more than 11,000 government records the FBI seized in Mar-a-Lago on Aug. 8 and investigate "requests for his return." target. The judge allowed the so-called Special Master not only to filter materials that may be subject to attorney-client privilege, but also documents that fall under executive privilege. Executive privilege is the right of a US president to keep certain information about the activities of his office secret from Congress or the judiciary. It is typically used in the interests of national security or to keep private government talks confidential and cannot be cited for personal reasons.
Cannon also barred federal prosecutors from further examining and investigative use of the seized materials until the Special Master completed his work. At the same time, she granted the National Intelligence Agency an exemption: she may continue to examine and use the documents "for the purposes of intelligence classification and the assessment of national security."
The ban on investigation and use and the supposed division of labor — the separation between "investigative purposes" and a "national safety assessment" — are met with a lack of understanding among experts. "It's impossible to reconcile these two decisions," said Jamie Gorelick, Deputy Attorney General under President Bill Clinton, in the Washington Post.
David Alan Sklansky, law professor at Stanford University, emphasizes in the "New York Times" that he is glad that the work of the secret service agency can be continued in view of its importance. However, there is an inherent contradiction in allowing law enforcement to use the files for that purpose while preventing them from using them for an active criminal investigation. "It's an odd situation where part of the executive branch can use the material and another part can't."
Paul Rosenzweig, a former prosecutor and Homeland Security official, finds harsher words in the newspaper. It is outrageous to prevent the Justice Department from questioning witnesses on government files, many of which are marked as classified and federal agents have already reviewed them. "This seems to me to be a truly unprecedented decision by a judge," Rosenzweig said. "Stopping the ongoing criminal investigation is simply untenable."
Many experts also consider the fact that Cannon uses executive privilege as an argument in its decision to be questionable. After all, Trump is no longer president, but a private individual, and it's about documents that belong to the federal government, not Trump. The judge "does not seem to know the essence of executive privilege," quotes the New York Times as legal scholar Peter Shane. There is no basis for them to extend a special representative's authority to review materials that may also fall under executive privilege. This privilege is normally used to protect internal executive branch deliberations from disclosure to outsiders, the newspaper writes. However, the Justice Department is itself part of the executive branch, and a court has never ruled that a former president can invoke the privilege of keeping records from his term of office away from the executive branch itself.
Cannon also justified her appointment of a special counsel with the potential damage Trump might otherwise incur. "In addition to the fact that important personal documents may be withheld from him, which in itself represents real harm," the 76-year-old faces "unquantifiable potential harm from improperly disclosing sensitive information to the public," the judge wrote indicated in a footnote that the Justice Department could release the files to reporters.
Above all, Cannon emphasized Trump's status as a former president. "Due to plaintiff's previous position as President of the United States, the stigma associated with the confiscation is in a league of its own," she wrote. "A future prosecution that relies to any degree on property that was intended to be returned would result in image damage on a whole different scale."
Ronald S. Sullivan Jr., a professor at Harvard Law School, calls the judge's reasoning "thin at best" in the "New York Times" and gives "undue weight" to the fact that Trump is a former president. "I find that deeply problematic," he explains, stressing that the criminal justice system should treat everyone equally. "This court gives special consideration to the former President that ordinary, everyday citizens do not receive."
Samuel W. Buell, a law professor at Duke University, agrees with Sullivan in the paper. "For any honest attorney with experience in federal criminal courts, this verdict is ridiculously bad, and the written justification is even flimsier," the newspaper quoted him as saying. "Donald Trump gets something no one else gets in federal court, he gets for no good reason."
Former Deputy Attorney General Neal Katyal even described Cannon's legal analysis on the US broadcaster MSNBC as "terrible" and "terrible" and etched: "Honestly, any of my first-year law students could have written a better opinion." And Andrew Weissman, a longtime Justice Department veteran and legal analyst at MSNBC, called the ruling "lawless" and "insane."
Trump's ex-Attorney General Barr, like many legal experts, recommends that the Justice Department take action against Cannon's decision: "I think the verdict was wrong and I think the government should appeal it. It's very flawed in many ways. I don't think so that the appointment of a Special Master will endure."
The ministry has yet to decide whether to follow Barr's advice. Maybe it doesn't share his optimism either. Because an appeal would be heard by the 11th Circuit Court of Appeals in Atlanta, Georgia - and six of the eleven judges there were appointed by Trump.
Quellen: "New York Times", "Washington Post", Fox News, CNN, MSNBC, Collins Dictionary, Courtlistener.com