Thursday’s 10-page opinion by U.S. District Court Judge Aileen Cannon denying the government’s motion for a stay in the Mar-a-Lago documents case is being savaged by commentators in terms normally reserved for grotesque transgressions of justice like the infamous Dred Scott Supreme Court decision.
Respected and generally sober legal analysts have called it an atrocity, “legally and practically incoherent,” “dangerous garbage,” and declared Cannon “a partisan hack.” “No honest and competent legal analyst could have ruled as she did,” tweeted Harvard Law’s Laurence Tribe.
Could the opinion really be that bad?
In a word, yes.
The opinion’s essential flaws go well beyond straining the law and stretching facts in favor of Donald Trump. The ruling rests on the most basic dereliction of judicial responsibility, and it represents a complete departure from the bedrock principle of separation of powers.
Cannon was actually handed a graceful way back from her also broadly pilloried opinion last week, in which she had determined that a special master was required to review the government documents seized at Mar-a-Lago.
The Justice Department asked for a modest stay extending to only 100 pages of classified material found at the beach resort. It is beyond controversy that such documents are off-limits to a private citizen like the former president.
Trump’s lawyers did not try to contest that principle. Rather they argued, bizarrely, that just because the government said the documents were classified, it wasn’t necessarily so.
That, of course, is spectacular gibberish. The very meaning of classified documents is that the executive branch has made a determination about their content and marked them classified.
But Cannon adopted Trump’s Alice-in-Wonderland approach. She concluded that it would not be “appropriate” — the closest thing to legal reasoning in her opinion — “to accept the government’s conclusion on these important and disputed issues without further review by a neutral third-party,” that is, a special master.
Cannon, in essence, is redefining the classification process to be simply a provisional executive branch judgment subject to overruling by individual judges such as herself. Apart from its legal bankruptcy, such a process would wreak bedlam in matters of national intelligence, which turn on the very designations that Cannon set aside.
The Trump team’s next gambit, which the judge also adopted, was even more logically and legally threadbare. The former president has argued repeatedly in public that he declassified the documents. But his attorneys have studiously avoided saying that in court papers, where lies are subject to professional and criminal penalties. The Trump filings indicate only that he perhaps had declassified the documents.
The appropriate response for a judge in these circumstances is to put Trump on the stand and ask him, “Did you or didn’t you?” Failing that, “perhaps” means the matter is not established and the argument loses.
But Cannon either does not know or does not care what judges do in such a situation. It is important to emphasize that she isn’t simply leaning in Trump’s direction, she’s falling all over him.
Judges sit to resolve disputes, on the basis of evidence. Trump’s team offered none for his positions, relying instead on only the most speculative arguments. It is elementary to the adversary system of justice that evidence and the law, not speculation, determine outcomes. Nothing in the Trump team’s filings justifies freezing a criminal justice investigation and national intelligence review in their tracks.
And that’s another screaming flaw in Cannon’s opinion. The Justice Department submitted an affidavit explaining in concrete terms why a national intelligence review of the Mar-a-Lago documents can’t go forward if the criminal investigation is halted. Cannon simply rejected it — again, no countering evidence was produced — and reasserted her notion that the national intelligence review could go forward. That ruling rested on a complete ignorance of executive branch practice and a rank arrogation to herself of the executive power.
Finally, and grotesquely, Cannon declared that her ruling was “ inherently impacted by the position formally held by plaintive.” In other words, her pledge to do equal justice under law has an exception for the president that appointed her.
It cannot be clearer that the failings here represent rank departures from the very function of a federal judge — to resolve disputes according to the evidence and to respect the role of coordinate branches.
And that doesn’t even touch on the debacle that appointing a special master in this case has spawned, in which executive privilege is to be assessed by the special master notwithstanding firmly established law that says the former president has no such claim to documents he purloined and concealed.
The Justice Department will file an appeal. Many observers have noted that the court above Cannon has a majority of conservative members, and that is true and perilous. Nonetheless, the shortcomings in the opinion go beyond conservative versus liberal judicial philosophy. Only if the appellate judges are willing, as Cannon has been, to abandon their basic role as judicial officers can this incoherent opinion stand.
If that happens — which I do not expect — we would be truly lost.