Conservative, Trump appointed federal judge Aileen M. Cannon official photo: NAJ screen shot

The Big Picture – 
By Glynn Wilson – 

CATOCTIN MOUNTAIN, Md. — Is it past time to put aside this false notion that the legal system, the Department of Justice and the courts in the United States are above politics?

In unprecedented breaking news announced by a federal judge appointed by Donald Trump, she announced on a federal holiday that she will defy the persuasive arguments by the U.S. Department of Justice under President Joe Biden and his appointed attorney general Merrick Garland. Federal District Court Judge Aileen M. Cannon, a member of the conservative Federalist Society since 2005 with an anti-Castro Cuban bias, announced she will intervene in the case of Donald Trump v. The United States of America by ruling in favor of granting Trump his “special master” or independent arbiter to review all the documents seized by the FBI at Mar-a-Lago.

In her 24-page ruling in the Southern District of Florida, Cannon also enjoined the Justice Department from using the seized materials for any “investigative purpose” connected to its inquiry of Trump until the work of the arbiter is done, pretty much assuring that no charges will be brought in this investigation until after the midterm elections on Nov. 8.

“The order would effectively bar federal prosecutors from using key pieces of evidence as they continue to investigate whether the former president illegally retained national defense documents at his estate, Mar-a-Lago, or obstructed the government’s efforts to get them back,” according to breaking news coverage in The New York Times. “It also appeared to grant Mr. Trump special deference as a former president, rejecting the Justice Department’s repeated assertions that it would pursue investigations of Mr. Trump just as it would those of any other person.”

Read the ruling here…

Long-time readers are aware this subject is something I’ve been covering for more than 30 years, starting in the 1980s when I broke stories about federal prosecutors in the Reagan years refusing to even investigate clear violations of federal law by Alabama’s first Republican governor since federal reconstruction after the Civil War, Guy Hunt, while tormenting the first African American mayor of Birmingham, Richard Arrington, with investigation after investigation.

My work on those stories eventually found their way into a book by former New York Times reporter David Burnham, who cites me by name in the text. When the book came out, I wrote an explanatory book review about it for The Macon Telegraph in Georgia while teaching journalism at Georgia College.

Above the Law: Secret Deals, Political Fixes and Other Misadventures of the U.S. Department of Justice

Later I spent years covering the case of the Bush Justice Department’s prosecution of former Alabama Governor Don Siegelman, the last Democrat to hold that office. I have the most definitive archive on the web of everything that happened in that case.

328 search results for “Don Siegelman”

Now look, everyone who writes in-depth articles or commentary about this subject likes to quote lawyers talking about the need to “restore public confidence in the judiciary” and to keep the judicial branch out of politics, to let the executive and legislative branches duke it out. But how can it be non-political when in many states judges must be elected and stand for reelection, and when partisan politicians make it clear they are packing the court with partisan loyalists, as was the case with President George W. Bush and Trump.

Yes, Obama placed the emphasis on merit and qualifications, and Biden has followed in his footsteps in that regard. So the Democrats at least try to avoid the appearance of impropriety when it comes to appointing justices.

The modern-day Republicans, however, loyal only to their far-right conservative agenda, make no bones about their willingness to use the courts and the justice system for partisan, political advantage.

Many who write about this issue quote for guidance Federalist Paper No. 78, in which Alexander Hamilton called the judiciary the “least dangerous” branch of the new federal government as it was structured by the Constitution.

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community.

“The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

“This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive (emphasis added).

But the judiciary stopped being “truly distinct” when presidents began using their power to appoint justices who were clearly on their side of the aisle politically, and then states allowed a system of electing judges, which turned even state courts into partisan, political outlets. No where is the case for this more clear than Alabama, where Bush’s political guru Karl Rove came to the state in the 1990s and used his special propaganda skills to turn the state Supreme Court into a conservative protector of Big Business and Republicans.

How Karl Rove Took Over the Alabama Supreme Court and Created a ‘No Win Zone’ for Citizens

Of course these Republican justices use the same political tactics as the politicians who appoint them to cover their tracks for public consumption. But is anybody fooled by this tactic anymore?

Judge Cannon said she made her decisions “to ensure at least the appearance of fairness and integrity under the extraordinary circumstances.”

Integrity? Really?

Biden-Garland Justice Department officials are discussing the possibility of an appeal since the judge had already hinted that she might rule in Trump’s favor. But according to The Times, a department spokesman, Anthony Coley, refused to answer on Monday when asked how the department would respond.

“The United States is examining the opinion and will consider appropriate next steps in the ongoing litigation,” he said.

Any appeal of Judge Cannon’s ruling could be deemed dead on arrival in the appellate courts anyway, since the first hurdle would be a three-judge panel on the United States Court of Appeals for the 11th Circuit in Atlanta. Out of 11 active judges, six were appointed by Trump, and most of the others were appointed by Bush, including Bill Pryor from Alabama, who played a role in the Siegelman case back when.

Then of course there is the 6-3 conservative majority on the Supreme Court, with most justices appointed either by Trump or Bush.

Judge Cannon’s ruling grants this special master wide-ranging authority to review the nearly 11,000 documents carted away from Mar-a-Lago by the FBI on Aug. 8, according to The Times, some of which bore markings labeling them as “highly classified.” It permitted whoever is appointed to the job to evaluate the documents not only for those protected by attorney-client privilege, a relatively common measure, but also for those potentially shielded by executive privilege, which typically protects confidential internal executive branch deliberations.

At a hearing last week concerning the question, the Justice Department argued that allowing a special master to conduct an executive privilege review of the seized material would be “unprecedented” and legally baseless since the department itself is part of the current executive branch and Trump is no longer in office.

“There is no role for a special master to play in executive privilege,” Julie Edelstein, a lawyer for the department, argued at the time.

But Judge Cannon, who was appointed by Trump, clearly disagreed with the Justice Department, writing in the order that she was “not convinced” of the government’s categorical assertion that executive privilege did not apply in this context. She added that she thought the department’s position “arguably overstates the law” and that setting aside any documents that could be shielded by executive privilege as the legal issues in the case are sorted out made sense.

“Even if any assertion of executive privilege by plaintiff ultimately fails in this context, that possibility, even if likely, does not negate a former president’s ability to raise the privilege as an initial matter,” she wrote.

In her order, Judge Cannon evinced concern that Trump might suffer “reputational harm” from a search that was not conducted properly — or, as she added, from “a future indictment” that was based even in part on “property that ought to be returned.”

She noted that the inquiry of Trump needed to be undertaken with particular care and deference, placing him in his own category.

“As a function of plaintiff’s former position as president of the United States,” Judge Cannon wrote, “the stigma associated with the subject seizure is in a league of its own.” She also noted that, because of the search of Mar-a-Lago, Trump faced “unquantifiable potential harm by way of improper disclosure of sensitive information to the public.”

“Such statements flew in the face of the Justice Department’s repeated assertions that in investigating Mr. Trump, it would follow the facts and the law, just as it would during an inquiry into any other person,” the Times reports.

Even though her ruling forbade the Justice Department from using the trove of materials seized from Mar-a-Lago in its investigation of Trump, it did not appear to bar prosecutors from using other means to pursue it. On Friday, in a court filing disclosed along with a detailed inventory of the items taken during the search, prosecutors said the documents inquiry remained an “active criminal investigation” that could involve “further investigative steps” — among them, “additional witness interviews and grand jury practice.”

“Still, the ruling, which will require several time-consuming steps, will almost certainly slow down the investigation,” the Times reports.

It is hard to imagine how Trump’s reputation could be harmed any more by his clearly blatant disregard for national security by taking the documents in the first place, and then lying about having them. This judge makes her bias clear in her own words.

Of course she will first have to appoint someone to perform the job of special master, opening another avenue for partisanship to intercede in the case. Then that person will have to conduct a review of a large trove of documents and decide if any are protected either by attorney-client privilege or executive privilege.

The judge, whose mother fled to Florida from Cuba after Fidel Castro took power in that country’s Revolution, ordered the Justice Department and lawyers for Trump to send her a list by Friday of potential candidates for the special master job and suggestions for what powers the position would hold.

Even then, there could be further legal action. Trump’s lawyers have said they want to identify the privileged items, in part, as a precursor to filing a broad legal challenge to the search under the Fourth Amendment, which guards against unreasonable searches and seizures.

In the ruling, Judge Cannon offered a few new details about the search itself. She noted, for example, that among the government records seized by the FBI, agents found some of Trump’s “medical documents, correspondence related to taxes, and accounting information.” The warrant for the search of Mar-a-Lago authorized the FBI to remove any boxes that contained government documents even if items of a more personal nature were discovered among them.

She noted that Trump’s personal items were identified and set aside by a so-called filter team of federal agents walled off from the team investigating Trump. Still, in her order, she cast doubt on the work of the filter team, saying, without giving specifics, that in two instances, materials that should have been identified as privileged ended up in the hands of prosecutors.

She also said that the sheer amount of material seized from Mar-a-Lago justified naming a special master, adding that she alone was not equipped to pore over more than 10,000 of pages of documents to determine what should be part of the government’s investigation and what should not.

“Considering the volume of seized materials and the parties’ expressed desire for swift resolution of this matter,” Judge Cannon wrote, “a special master would be better suited than this court to conduct the review.”

It seems to me this judge should have recused herself in this case. She shows a clear bias, and she is ruling in a case involving the man who hired her. This can’t be considered above board. It certainly won’t do anything to “restore public trust” in the judiciary.

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