“This paragraph alone is why DOJ will win”: Experts predict Trump Judge Aileen Cannon’s order doomed

DOJ aims to end special master review after appeals court, Supreme Court rebuke Cannon's intervention

By Igor Derysh

Senior News Editor

Published October 17, 2022 9:21AM (EDT)

Donald Trump | Mar-a-Lago resort in West Palm Beach, Florida. (Photo illustration by Salon/Getty Images)
Donald Trump | Mar-a-Lago resort in West Palm Beach, Florida. (Photo illustration by Salon/Getty Images)

Legal experts predicted that U.S. District Judge Aileen Cannon's order assigning a special master to review documents seized from former President Donald Trump's Mar-a-Lago residence would be struck down after an appeal from the Justice Department.

The DOJ in a 67-page filing asked the 11th Circuit Court of Appeals in Atlanta to overturn Cannon's order and end the special master review, arguing the Trump appointee "erred" by siding with the former president.

The DOJ argued that there was no threat to Trump's rights because the search of Mar-a-Lago was authorized by a federal judge and because Trump had no right to have the documents in the first place.

"The uncontested record demonstrates that the search was conducted in full accordance with a judicially authorized warrant, and there has been no violation of [Trump's] rights — let alone a 'callous disregard' for them," the DOJ said, adding that Trump had "failed to meet his burden in establishing any need for the seized records — indeed, a substantial number of them are not even his—or in establishing any irreparable injury in their absence, and Plaintiff does not lack an adequate alternative remedy at law."

Trump's attorneys had argued that a special master was necessary to protect his rights to claim attorney-client privilege and executive privilege. Trump has also claimed that he may have declassified secret documents before he left office, though his attorneys have refused to provide evidence to the court.

DOJ attorneys argue that Trump has produced no evidence that the documents were declassified and that he has not actually claimed privilege over any documents.

Cannon initially barred the DOJ from using about 100 documents marked classified that were seized from Mar-a-Lago in its criminal investigation but that part of her order was struck down by the 11th Circuit, which agreed with the DOJ that she had abused her authority in halting the probe. The Supreme Court last week rejected Trump's appeal to have the special master review the documents marked classified.

The DOJ in its new filing argued that it needs access to the remaining 11,000 documents in the special master review and asked the court to end the review altogether.

"The dates on unclassified records may prove highly probative in the government's investigation," the filing said. "For example, if any records comingled with the records bearing classification markings post-date Plaintiff's term of office, that could establish that these materials continued to be accessed after Plaintiff left the White House … The government may need to use unclassified records to conduct witness interviews and corroborate information."

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The DOJ also rejected Trump's claim of executive privilege since the Justice Department and FBI are also part of the executive branch.

"Neither Plaintiff nor the district court has cited any instance in which executive privilege was successfully invoked to prohibit the sharing of records or information within the Executive Branch itself," the filing said.

Trump's response to the filing is due by November 10, though much of the special master review may be completed by then. Cannon ordered the review to be completed by December 16.

Legal experts predicted that the 11th Circuit would eventually rule in favor of the DOJ.

Ryan Goodman, a law professor at New York University, cited part of the DOJ brief laying out the core of its argument.

"Most fundamentally, the district court erred in exercising equitable jurisdiction to entertain [Trump's] action in the first place," the DOJ said, adding that Cannon acknowledged that there had been "no showing" that the government acted in "callous disregard" of Trump's rights.

"This paragraph alone is why DOJ will win hands down," Goodman predicted. "It was an essential condition for Cannon to have jurisdiction. Cannon admitted Trump made no showing to meet the condition. End of story."

Harvard Law Professor Laurence Tribe agreed that the DOJ filing is "as close to being conclusive and irrefutable as any brief I have ever read."

Former appellate lawyer Teri Kanefield said the DOJ filing shows that "none of the factors were met" to appoint a special master.

"There you go. End of story. If there is no jurisdiction, the case gets dismissed. The whole thing goes poof," she tweeted.

Former FBI Deputy Director Andrew McCabe noted that the DOJ has some "legal momentum" after the 11th Circuit and the Supreme Court both rejected Trump's arguments related to the documents marked classified.

"I think the Justice Department is kind of reading the weather here and realizing that they have the upper hand in challenging Judge Cannon's order, putting the special master in place," he told CNN, "and they're taking their shot to see if they can get that entire thing knocked out."

By Igor Derysh

Igor Derysh is Salon's senior news editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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Aggregate Aileen Cannon Donald Trump Mar-a-lago Politics