Thursday’s 10-page opinion by US District Judge Eileen Cannon who denies the government’s proposal to stay in the Mar-a-Lago Documents case is attacked by commentators in terms usually reserved for egregious violations of justice such as the infamous Dred Scott Supreme Court decision. .
Respected and generally sober legal analysts describe the matter as atrocities, “incoherent legally and in practice”, “Dangerous garbage,” He declared Canon a “partisan hack”. “No honest and competent legal analyst can judge as I did,” Harvard Law’s Laurence Tribe wrote in a tweet.
Could an opinion really be that bad?
With a word yes.
The fundamental flaws of opinion go beyond the stress of law and the broadening of facts in favor of Donald Trump. The ruling is based on the simplest dereliction of judicial responsibility, and represents a complete departure from the fundamental principle of the separation of powers.
Indeed, Cannon was delivered a graceful way to retract her widely defamed opinion last week, deciding that a private tutor was needed to review seized government documents in Mar-a-Lago.
The Justice Department requested a modest stay of only 100 pages of classified material found at the beach resort. It is indisputable that such documents are prohibited to an ordinary citizen like the former president.
Trump’s lawyers have not attempted to challenge that principle. Instead, they argued, oddly enough, that just because the government said the documents were classified, it wasn’t necessarily the case.
This, of course, is amazing nonsense. The true meaning of confidential documents is that the executive authority has made a decision about their content and marked them as 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 view – “to accept the Government’s conclusion on these important and contested issues without further review by an impartial third party”, i.e. a private master.
Cannon is, in essence, redefining the rating process to be merely a temporary provision of the executive branch subject to oversight by judges like her. Aside from its legal bankruptcy, such an operation would provoke a furore in matters of national intelligence, which flips over the nomenclature that Cannon has set aside.
The Trump team’s next gambit, which the judge also adopted, was more flimsy from both a logical and legal point of view. The former president has repeatedly argued publicly that he has declassified the documents. But his lawyers closely avoided saying so in court papers, where lies are subject to professional and criminal penalties. Trump’s filings only indicate that he may have declassified the documents.
The appropriate response for a judge in these circumstances would be to put Trump on the podium and ask him, “Did you or didn’t you?” If not, “maybe” means that the matter has not been proven and the argument is lost.
But Cannon either doesn’t know or doesn’t care what judges do in such a case. It is important to stress that she is not simply leaning in Trump’s direction, she is falling on him.
Judges sit down to resolve disputes, based on evidence. Trump’s team has offered nothing on its positions, relying instead on only the most speculative arguments. It is fundamental to the adversarial justice system that outcomes determine evidence and law, not guesswork. Nothing in the Trump team’s files justifies holding the criminal justice investigation and the National Intelligence Review on track.
This is another glaring flaw in the opinion of Canon. The Department of Justice has provided an affidavit explaining in concrete terms why the NIE’s review of the Mar-a-Lago documents cannot proceed if the criminal investigation is halted. Cannon simply dismissed it – again, no counter-evidence was presented – and reasserted its concept that the National Intelligence Review could move ahead. This judgment was based on complete ignorance of the practices of the executive branch and the arrogance of the executive itself.
Finally, oddly enough, Cannon declared that its ruling was “inherently affected by the position formally taken by the plaintiff”. In other words, her pledge to achieve equal justice under the law has an exception for the president who appointed her.
It cannot be apparent that the failures here represent a rank departure from the function of the federal judge – to resolve disputes on the basis of evidence and to respect the role of coordinating branches.
This does not even touch upon the disaster wrought by the appointment of a private master in this case, where the executive privilege is assessed by the special master despite the well-established law that the former president had no such claim to the documents he had compiled and concealed.
The Department of Justice will file an appeal. Many observers have noted that the court above Cannon has a majority of Conservative members, which is both true and dangerous. However, the shortcomings of the opinion go beyond conservative versus liberal judicial philosophy. Only if the appellate judges were prepared, as Cannon was, to relinquish their primary role as judicial officers, can this incoherent opinion stand up.
If that happens – which I don’t expect – we’d really be lost.