‘Special master’ ruling by Trump-picked judge threatens to delay probe

When judge Aileen Cannon sided with Donald Trump in his request for a court official to review thousands of documents he may have taken illegally from the White House, she explicitly gave special treatment to the man who put her in place.

“As a function of plaintiff’s former position as president of the United States, the stigma associated with seizure is in a league of its own,” Cannon wrote in her decision.

“A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude,” she added.

The Trump-appointed judge in Florida’s southern district surprised many legal experts on Monday by ordering the appointment of a so-called “special master” to look over the documents seized by FBI agents in a search of the former president’s estate last month.

The documents — 103 of which were marked as classified — form the heart of the justice department’s probe into whether the former president mishandled government information after leaving office.

That investigation is now likely to be held up while a special master is appointed and carries out a review. But some legal experts warn the ramifications of Cannon’s ruling could be far wider.

“She is explicit that she views Trump’s legal status as a former president as categorically distinct from others and requiring a bespoke legal analysis,” said Ankush Khardori, a former federal prosecutor.

Norm Eisen, a former White House lawyer, said: “For special consideration to be given to someone because they are a former president — that runs contrary to the American principle that everyone is equal under the law.”

The DoJ’s investigation into whether Trump mishandled classified information after leaving office represents the most immediate legal threat to the former president.

He is also under scrutiny from Congress for his role in fomenting last year’s attack on the US Capitol and by a grand jury in Georgia over his attempts to overturn the state’s 2020 election result — but those investigations are likely to take longer.

When FBI agents searched his Mar-a-Lago resort last month, they seized 27 boxes containing thousands of documents, including 54 marked “secret” and 18 marked “top secret”.

Trump responded by requesting a special master to look into whether any of those documents were subject to either attorney-client privilege or the privilege granted to members of the executive branch to communicate privately.

Before this week, Trump’s request looked to have backfired, resulting in the justice department being required to disclose far more than it otherwise would have about what the former president was keeping at his Florida resort.

However, Cannon’s decision not only grants him an important legal victory but has the potential to hold up the investigation indefinitely, given she has told federal officials to stop using the documents until further notice.

The justice department said in an earlier court filing that it had already reviewed all of the documents in question. But it is now unclear what officials can do with the information they have gleaned.

“That injunction is extraordinary,” said Jennifer Rodgers, a former federal prosecutor and lecturer at Columbia Law School. “If DoJ officials saw a name in those documents, are they allowed to reach out to that person now and question them? Can they review subpoenas relating to them?”

Speaking to Fox News on Tuesday, Bill Barr, Trump’s former attorney-general, called the ruling “totally wrong”.

But the element of the order that has caused most consternation among many experts is that in justifying her decision, Cannon explicitly gives Trump almost unique legal status.

The notion was central to her argument that such an unusual intervention was warranted, even before any charges have been brought. But is has also created concerns about her role in overseeing a case involving the man who put her in place.

Brad Moss, a partner at the law firm Mark Zaid, said: “Time and again, the decision carves out exceptions to issues of jurisdiction and judicial authority premised on the idea that Mr Trump is a unique criminal suspect who is essentially entitled to greater benefits of ‘fairness’ than any other criminal suspect at this stage in a criminal investigation.”

The justice department now faces a decision over whether to appeal.

Some believe it has solid legal grounds to do so, although they point out that the six out of the 11 active judges on the court where an appeal would be heard were appointed by Trump.

Even if the government loses an appeal or decides not to proceed with one, it should still be able to move forward with the case using any documents that are approved by a special master, experts said.

Rodgers, of Columbia Law School, said: “Trump’s lawyers have had a good week but I don’t think at the end of the day it makes much of a difference except by pushing everything back a little bit.”

Others, however, believe Cannon has paved the way for judges sympathetic to Trump to put up similar legal hurdles and even to drag the case out indefinitely.

Khardori, the former federal prosecutor, said: “This potentially points to more obstacles along these lines. It tells us a lot about what it will be like for the government to try and litigate this investigation in this political and legal environment.”

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