The 11th Circuit Court of Appeals ruled yesterday in favor of the Department of Justice, and ended the review by the Special Master of seized documents as Judge Aileen Cannon had ordered.
Chief Justice John Roberts remarked in an interview, that he likes to write opinions that ordinary people can understand. Many of the opinions fall short of this goal. The Appellate Court delivered a “Roberts’ gem.” The 19 page decision gets to the point quickly. Judge Cannon did not have the right to order the Special Master review of seized documents. Donald J. Trump verses the United States of America sets out unique privileges that former presidents or any former official just don’t have.
I am certain that Judge Cannon focused on a very narrow balancing act, between the right of the Department of Justice need for documents for possible prosecution, verses Donald Trump right to have returned to him, those documents which were clearly personal items. So, I guess her thinking was that if DOJ and Trump could work out rules for a speedy review, her order would stand.
But, Judge Cannon goes from law to politics, when she goes from singular to plural in just one word. And the Appellate Court catches her, as she claims she must consider the parties need for the documents, instead of the party (Donald Trump) to support the need of the Special Master review. I can see now, why the Department of Justice needed an expediated appeals hearing. The judge was re-writing case law and setting a dangerous precedent, that makes every search warrant a balancing act between parties.
The opinion’s first line: This appeal requires us to consider whether the district court had jurisdiction to block the United States from using lawfully seized records in a criminal investigation. The answer is no. And the next 18 pages, show clearly why the Judge’s opinion lacks merits based on case law.
Then, starting on page 20, the opinion in two sentences sums up the problem with Judge Cannon’s decision. “The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so.”
There are in fact, situations where the Department of Justice will ask for a Special Master to review documents. And other times, where the search went beyond the warrant or there is client-attorney privileged documents, best handled by a third party, as a Special Master overseen by a court magistrate.
The beauty of this opinion is that the Appellate Court is crystal clear that the burden for blocking access to seized material was with Trump, and he failed to pass the “Richey Test.” On page 20, the Appellate Court states:
The Richey test has been in place for nearly fifty years; its limits apply no matter who the government is investigating. To create a special exception here would defy our Nation’s foundational principle that our law applies “to all, without regard to numbers, wealth, or rank.
Judge Aileen Cannon, who violated this principle, is not called out. That’s not the way opinions are written. But, she definitely is soundly condemned by this ruling.
The Special Master is gone. The FBI’s internal review by their filter team can begin.