Thread by @AkivaMCohen

OK, #LitigationDisasterTourists, let's take a run at a true litigation disaster - Judge Canon's order in the Trump Mar-a-Lago case. Will have to take a few breaks to help around the house, but let's do something different this time, and NOT start by reading the order.

https://twitter.com/chrisgeidner/status/1566815936094633985

Instead, let's review the Nixon cases that set the basic background for how courts respond to executive privilege claims by former officials.

We'll start with Nixon v. Administrator of General Services, 433 U.S. 425 (1977), a Supreme Court case you can find here

supreme.justia.com/cases/federal/…

In GSA, Nixon challenged the Constitutionality of a newly passed law that directed the GSA to take custody of Nixon's tape recordings and to have executive branch archivists screen them (to sort out presidential from personal) and put out regulations for making them public

The law was written after Nixon had entered into an agreement with the GSA that essentially gave him total control over the tapes and the right to order their destruction.

I'm going to skip over the analysis of the law's impact on the agreement and jump to the discussion of executive privilege, since that's what we're here for

SCOTUS rejected the argument that only the incumbent President, and not the former President, could assert executive privilege.

But it also held that, under the circumstances, Nixon's invocation of privilege was meaningless.

Why? Well, here were Nixon's arguments on privilege. Note, btw, that EVERYONE agreed that a former President cannot invoke privilege over documents relating to state secrets or national defense issues; only the incumbent can do that

Looking back at US v. Nixon (the next case we'll discuss before we get to judge Canon's order), SCOTUS made crystal clear that executive privilege is qualified, not absolute

Assessing whether the former president can assert the privilege, SCOTUS says yes - but very clearly holds that the courts must give greater weight to the current president's view of whether doing so is actually in the Executive's best interests in a given situation

Note that SCOTUS *expressly* says that courts are REQUIRED to presume that the current president is making that decision for valid reasons (i.e. not political ones). A presumption is a heavy thing, and it would require serious contrary evidence to overcome it.

Responding to the claim that even letting the archivists screen the material intrudes on privilege, SCOTUS says it's "readily resolved": The people doing the review are WITHIN the Executive Branch and therefore inherently sensitive to its concerns, and there's no evidence their

review would have any negative impact on Presidents' ability to obtain advice from their advisors, because Presidents EXPECT their privileged material to be subject to archival review anyway.

And here, for purposes of any analysis of Trump's motion, is the key line in the SCOTUS decision:

"An incumbent Pres. should not be dependent on happenstance or the whim of a prior Pres. when he seeks access to records... that define ... current governmental obligations"

In other words: If the executive branch needs access to the records to fulfill current executive functions, a former President's invocation of executive privilege CANNOT carry any weight.

Note also: Investigating crimes is an executive branch function.

So, basic principles taken from GSA:

1) Former presidents can invoke Exec privilege
2) They'd need to have real strong evidence that the incumbent is disregarding the needs of the Executive Branch to successfully invoke it over the current Pres's objection
3) EP CAN'T be invoked

if the invocation of executive privilege would impede a core executive branch function

OK, how about US v. Nixon ("Nixon")?

In Nixon, a court issued a subpoena to Nixon, WHILE HE WAS STILL PRESIDENT, for production of the tapes for use in a criminal prosecution of Nixon's co-conspirators

The District Court held that the prosecutor had presented a sufficient basis to overcome the privilege, and up the case went to SCOTUS

Holding that the privilege wasn't absolute, SCOTUS confirmed that it could be overcome by the need to use the documents in criminal proceedings under certain circumstances

And it explained why: The rule of law - and our commitment that no innocent person be punished and (here's the kicker) no guilty person escape - outweighs the qualified privilege of confidentiality between an executive and their advisors.

In other words: You cannot invoke executive privilege to shield someone from criminal prosecution where there's a specific need for that evidence in a pending criminal trial

Now, there are some differences between Nixon and the Mar-a-Lago case; there's no pending criminal trial, and in Nixon the court ordered an in camera inspection of the materials to determine if they were truly necessary to the case

OK, so we have that background? Executive privilege bends to the rule of law, can't be invoked to impair executive functions, there's a strong presumption that the former president can't override the incumbent?

NOW let's look at Canon's decision and why it's a bad joke

I'll do a full review of the opinion separately. For now, let's jump to the portion of her order where she explains why she is going to have the Special Master review for executive privilege, not just attorney-client privilege, and see how she deals with Nixon and GSA

Behold

I mean for fuck's sake

Trump is seeking to invoke executive privilege SPECIFICALLY to prevent the executive branch from accessing "records ... that define or channel current governmental obligations" (i.e. whether to indict him) - exactly what SCOTUS said he could not do.

She doesn't even mention it

Trump is seeking to invoke executive privilege in order to shield himself from criminal investigation - almost exactly the circumstance SCOTUS already said executive privilege has to yield in.

She doesn't even mention it.

Yes, in Nixon there was an in camera inspection, and here she's ordering a Special Master; isn't that parallel?

No. In Nixon, the question on inspection was "which of these documents are relevant and admissible, only those go to the prosecutor"

Here, that's all of them.

Not only doesn't she mention any of this, her opinion makes clear she didn't even bother taking the time to THINK about it.

I have NEVER seen an opinion where, on a case dispositive issue, the judge says "well, arguably ..."

Arguably? Arguably?

Judge Canon, I say this with all of the respect I can muster, your fucking job was to decide that argument in the first instance.

Seriously. It's right there in your title. You are the judge. Do the goddamn judgING.

She didn't bother. And the only reason for "not bothering" I can come up with is that she had a result she wanted to reach, and knew doing the analysis probably wouldn't have let her get there.

And then this bit, at the end? Where she says "yeah, Trump is unlikely to succeed on any of his privilege invocations"?

She then goes on to issue an injunction, which REQUIRES her to find that Trump is likely to succeed on the merits of his claims.

Look, I've read plenty of decisions I disagreed with. Some even on my own cases (hey, it happens). SCOTUS decisions. Court of Appeals rulings. Trial court motion decisions.

Even where I disagree with the outcomes, there's pretty much always a clear legal process in there

Sometimes it brings me around on a result I didn't agree with. Sometimes it's just "I see how you got there, though I disagree with your reasoning"

This? There is no reasoning to speak of. She handwaved away SCOTUS precedent. It's a disgrace

Anyway, I'll get to the rest of the order tomorrow. For now ... this cuts to the heart of it, because whatever Aileen Canon was doing in ruling on this, it wasn't judging. And that's incredibly sad.

Cannon. Sorry, misspelled the name relentlessly and unintentionally.

BTW: Long term, this order doesn't actually do much for Trump. I've had a couple of people already claiming my reaction to this is based on "orange man bad" and guys... no. Orange man is *already* fucked. He's getting indicted one way or the other.

My concern here is rule of law

On reflection, there is one chance for him to avoid indictment, although it has nothing to do with the special master. If the intelligence Community damage assessment comes back and says that the damage was trivial, he probably doesn't get indicted