(🧵) THREAD: This thread explains, from the perspective of a former criminal defense attorney and federal criminal investigator, why so many lawyers are horrified by Trump-appointed judge Aileen Cannon’s ruling that a special master must be assigned to DOJ’s Trump investigation. 
1/ First, understand that nearly every criminal defendant in the history of criminal defendants everywhere in the world has thought, at some point or another, that they are being treated unfairly by those investigating and prosecuting them and that such people can’t be trusted.
2/ So Trump’s complaints about the FBI and DOJ may get covered by media; may cause his fans to froth at the lips; may seem a well-considered response to an extraordinary situation by those who know nothing about the criminal justice system—but they are literally *a dime a dozen*.
3/ It’s for this reason that a judge deciding whether or not to assign a special master to a case in which the government has seized contraband from a suspect will—indeed, *must*—ignore any and all whining by the defendant and make his/her decision based on the facts of the case.
4/ But not all facts are created equal. Can a judge consider whether the defendant is physically attractive? Of course not. Black? Of course not. A woman? No. Poor? No. A CEO? No. Blonde? No.
You get the point: “facts of the case” relates to the *nature of the documents seized*.
You get the point: “facts of the case” relates to the *nature of the documents seized*.
5/ So already we come to the first problem with the Cannon ruling, besides the obvious fact that it came from a Donald Trump political appointee who Trump and his team desperately “forum-shopped” for in a clear abuse of how our system is *supposed to* (but often does *not*) work.
6/ And that problem is this one: Trump appointee Aileen Cannon declared—and not just implicitly, but, horrifyingly, *explicitly*—that Donald Trump’s reputation simply *matters* more than yours or mine, as do his property rights. And they matter more because he is a powerful man.
7/ In ruling (in part; explicitly) on this basis, Cannon not only made up *precisely* the sort of ad hoc judicial-activist new rule Republicans claim to hate—“ex-presidents’ reputations matter more than other people’s, even though they’re just regular citizens”—but did far worse.
8/ Why do I say that she did worse than just not applying the rule of law equally across all those before her? Because she implicitly accepted Trump’s dime-a-dozen whining about being persecuted—many defendants say/think this—by bringing political considerations into her ruling.
9/ In being a government agent (judges are government agents, just from a different branch than the FBI) acknowledging the political dimensions to any harm done to Trump’s reputation, Cannon opens the door to the ignorant thinking such considerations are normal...even in the FBI.
10/ In other words, if Cannon can see that the search of Mar-a-Lago harmed Trump’s ongoing political ambitions at a level of public scrutiny you or I having our homes searched wouldn’t receive, Trump fanatics can say that the FBI could *and did* make exactly the same calculation.
11/ But in point of fact, it’s *essential* that both the executive-branch FBI *and* judicial-branch U.S. District Court in Florida communicate to America that a defendant’s profession doesn’t matter—bricklayers, doctors, organ-grinders, and ex-presidents will be treated the same.
12/ Some may object to the foregoing statement. I address three possible objections here.
1) Isn’t there already evidence DOJ treats pols differently?
2) Isn’t this case different, as it involves national security?
3) Aren’t special masters common and don’t they ensure fairness?
1) Isn’t there already evidence DOJ treats pols differently?
2) Isn’t this case different, as it involves national security?
3) Aren’t special masters common and don’t they ensure fairness?
13/ First, yes—DOJ has rules about how it handles investigations and cases that may influence elections. We should note that these rules are controversial and were recently made *more* controversial in being expanded by Trump’s creature Barr, but have not been shown to be abused.
14/ We’ve already seen these rules fail badly *as to Trump*. The OLC opinion that barred DOJ (arguably) from indicting Trump on 12 counts of Obstruction in 2019 led to DOJ feeling it couldn’t prosecute him at *all*—even post-term. So if anything these rules are *too* restrictive.
15/ But even more importantly, Judge Cannon actually held in her ruling that DOJ had not abused its authority—had *not* abused Trump’s constitutional rights—which makes any explanation of her ruling in grounded in the opposite claim wildly self-contradictory and even nonsensical.
16/ Nor has DOJ given any indication, to anyone, that it intends to violate its own pre-election policies—though frankly it wouldn’t be in investigating Trump, who’s actually *not covered by them* as an ex-president. In fact AG Garland publicly recommitted himself to these rules.
17/ And the clear purpose of these rules isn’t to protect politicians; rather, it’s to protect *voters* from unscrupulous *prosecutors* who might seek to unduly influence them with politically motivated prosecutions of *candidates*. It has nothing to do with non-candidate Trump.
18/ Even when Barr expanded these rules in a thoroughly corrupt way, it (a) was unilaterally and so recently it’s hardly a clear precedent, and (b) was intended to protect *anyone associated with a current campaign*, rather than an ex-president who is *pointedly* not a candidate.
19/ So yes, perhaps inadvisedly, DOJ electively—not by judicial fiat—adopted some controversial rules designed to protect voters by protecting *active candidates* from certain actions in the run-up to an election those candidates are running in. This has nothing to do with Trump.
20/ And to be clear, even if a judge thought DOJ’s new rules involving elections were *wise* and *just*, this wouldn’t be the same thing as institutionalizing them by judicial fiat. (And need we add that every Trump voter *opposed* such DOJ rules when it was Hillary under probe?)
21/ So secondly you might ask, isn’t this case different because it involves national security? Answer: yes! We’ve a long tradition of dealing with cases that implicate national security differently in a host of ways—all of which (natch) are designed to protect national security.
22/ And Judge Cannon *confirmed* that this case *does* involve national security by permitting the *USIC* review of Trump’s theft of highly classified records to continue unimpeded. So was she saying the *DOJ* probe has no such need to continue, or national security implications?
23/ This is, of course, a preposterous idea. There are immediate and dire national security implications in the question of whether or not DOJ’s counterintelligence division is going to be allowed to continue its investigation of one of the worst security breaches in our history.
24/ And make no mistake, that is *exactly* what Cannon did: she acknowledged the high national security stakes in this case and then said that Trump’s *specially protected, snowflake-like reputational interests* were clearly more important than U.S. national security. Uh....what?
25/ The DOJ investigation is a national emergency, as DOJ doesn’t know what was taken illegally from DC, whether it has all of it, what was done with what it doesn’t have (or where such portion of Trump’s stolen goods might be)—and so it *needs* to keep reviewing documents *now*.
26/ Instead, Cannon has effectively put a stop on the DOJ investigation for weeks or even months, making it impossible for DOJ to determine if Trump still has national secrets hidden somewhere in one of his domiciles. Indeed, Cannon's ruling so threatens national security that...
27/ ...it’d be not at all surprising if the FBI now sought to search Trump Tower and Bedminster precisely *because* their suspect—who, to be clear, they have dead to rights—has managed to forum-shop his way into preventing them from determining if *more* stolen data is out there.
28/ So yes, this case involves national security—and every way in which it does (and every way Cannon has *acknowledged* it involves national security) militates for allowing DOJ to continue its work trying to find stolen data and hold those who steal classified data accountable.
29/ So now we come to the critical third question. Seth, you might opine, why are you pretending that special masters aren’t *common* in cases like this? Aren’t you only upset because this case involves Trump? And the answer is: no to every single part of both of those sentences.
30/ First, understand that across *all cases* in which documents are seized—at both the state and federal level—special masters are *obscenely* rare. Why? Because they’re expensive (taxpayer money) and time-consuming (they can prolong investigations and even pretrial detentions).
31/ They’re also rare because most cases involving seizures do not involve any even potentially privileged materials; judges can in theory engage in what are called in camera reviews of materials *without* a special master; and most defendants would never ask for *or* expect one.
32/ So, you might wonder, should a judge be willing to spend more *money* on a case than usual because a defendant is famous? No. More *time*? No. These are inappropriate considerations. But what about the other three circumstances I just outlined? What of those? Do *they* apply?
33/ Well...no, actually. Trump has made no showing whatsoever (or even claim) that the documents seized included attorney-client privileged materials, because of course he’s too busy trying to preserve a false defense that he didn’t even *know* what he stole from DC (yes—really).
34/ By the same token, Trump has not and cannot credibly raise executive privilege as an issue because he is not the president, the actual president (Biden) has waived that privilege preemptively anyway, and privilege actually has nothing to do with the case—which is about theft.
35/ But even more than this, Trump—*again*, and consistent with his M.O. throughout his presidency—has yet to formally invoke executive privilege with respect to *any* specific document. The law requires him to do so, but judges have been covering his ass on this for *years* now.
36/ To my knowledge not a single federal judge since 2017 has required Trump to invoke executive privilege even when *others* have—without any basis in law—tried to do so on his behalf. It’s like these judges are acting as *Trump’s lawyers*, invoking defenses *he* can’t or won’t.
37/ Here, Trump won’t invoke because—again—he’s trying to maintain the farce that he’s no idea what he took and therefore doesn’t know if any of it was privileged (which, again, is legally immaterial here anyway). So Judge Cannon has helpfully given him an argument he never made.
38/ And to be clear—to the extent appointment of a special master *is* common in a type of case involving a seizure, it’s one in which a defendant *shows cause* to a court that there’s reason to think items were seized a special master must curate. Trump has made no such showing.
39/ The result of this is that we have a demand for a special master without any of the legal or factual grounding for such a demand, in a situation in which granting the demand harms national security, and with a claim of special status that has no basis in U.S. law whatsoever.
40/ And it’s *on top of all this* we must put the fact that a) Cannon is a lame-duck Trump-appointed judge who owes her career to the movant in her case, b) Trump has actively incited threats against *all* government agents who could threaten him—which implicitly includes Cannon.
CONCLUSION/ This case should’ve been heard by the same court already overseeing the Mar-a-Lago search. Failing that, it should’ve been decided by Cannon consistent with the facts, law, and the issues *actually raised* by the movant (Trump). Fortunately, DOJ can—and should—appeal.
PS/ As it is appealing, DOJ should *also* use the Cannon ruling as an additional basis—it already has probable cause—to search other Trump domiciles for the contraband it *knows* he stole. Moreover, it should move full speed ahead with its January 6 investigation of the ex-POTUS.
PS2/ I’ll also say that I consider it odd that Cannon feels compelled to consider certain facts not in evidence—a 2024 run Trump hasn’t announced; legal claims he hasn’t/won’t make—but not *other* known facts, like the movant’s decades-long history of bad-faith delaying tactics.
PS3/ A judge can only take what’s called judicial notice of facts not in evidence on a motion by one of the parties, but here she’s already said Trump is special—she can take into account items not properly before her—so how is she drawing the line on her deviation from protocol?
PS4/ It’s for all the foregoing reasons that my rather curt and snarky tweets about the ruling this morning focused on just two possibilities: (a) Judge Cannon is a political partisan more than she is a judge, or (b) she’s *acting* that way because she’s scared of MAGA terrorism.
PS5/ Some say we shouldn’t be agitated—this’ll be overturned on appeal (if DOJ appeals rather than being scared—preposterously—an appeal might seem quote-unquote political). But each delay/deviation from protocol harms rule of law and gives Trump more room to maneuver criminally.
(MORE) There are so many issues with Cannon’s ruling, I don’t think *5* threads could cover them. I covered a few here, but others are below—including the jurisdictional question and the unwillingness to treat different categories of documents differently. msnbc.com/opinion/msnbc-…
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