Trump-appointed Judge Aileen Cannon has gone rogue. The Federalist Society darling rejected an amicus brief filed by former top Republican officials opposing the former President’s request for a special master to be appointed to survey documents taken in the FBI August 8 search of Mar-a-Lago. The Amici Curiae – or friend of the court brief – was signed onto by former Department of Justice officials with decades of experience in both Democratic and Republican administrations.
“Amici all served in Republican administrations and collectively have decades of experience prosecuting cases involving sensitive materials or advising on matters regarding the proper scope of executive power and executive privilege. They also have substantial personal experience with the structure and process of law enforcement investigations, including investigations involving public officials,” the amicus brief said.
The former prosecutors added, “it is clear that there is no legal support for the relief requested by the former President.”
Judge Cannon, however, was not inspired by their pleas to follow the rule of law.
Following yesterday's order granting Trump's request for a special master to review the seized Mar-a-Lago docs, the judge says thanks but no thanks to a proposed amicus brief from former senior DOJ/govt officials who served in GOP admins (they had opposed Trump's request) pic.twitter.com/OIgsZkox8O
— Zoe Tillman (@ZoeTillman) September 6, 2022
Judge Cannon said that while she “appreciates” the sentiment, she “does not find the proposed appointment of amici curiae to be warranted.”
The proposed 'friend of the court' amicus filing is included in this thread. They had to ask permission from the court for the 'proposed' filing to be accepted. Judge Cannon said no. https://t.co/9DZDxue8Jy
— Don Lewis (@DonLew87) September 6, 2022
Apparently, Judge Cannon thinks she knows better than Donald B. Ayer, Ronald Reagan’s nominee for U.S. Attorney for the Eastern District of California, who also served as Principal Deputy Solicitor General under Reagan, and preceded former Attorney General Bill Barr as Deputy AG during Bush #41’s administration.
Former New Jersey governor Christine Todd Whitman – to this day the only woman leader the state has ever had — also signed on the brief, as did William F. Weld – who was not only a two-term governor for the State of Massachusetts but served as legal counsel for the U.S. House Committee on the Judiciary.
The unprecedented motion for a special master to be appointed has only been granted in cases of attorney-client privilege, not executive privilege. The Justice Department is an arm of the Executive Branch of government, as the amicus brief pointed out:
“The purpose of the executive privilege is to prevent those outside the Executive Branch from intruding in the decision-making of the Executive Branch. That intrusion does not occur when the Executive Branch itself is the entity reviewing the records and for its internal use.
“The appointment of a special master to adjudicate the claims of executive privilege would be a waste of time because the claim of executive privilege against the Executive Branch in this case is manifestly frivolous.”
When former President Donald Trump failed to return documents taken when he left the White House, the National Archives alerted the Department of Justice to potential mishandling of the government materials, something that happened after the ex-President eventually returned 15 boxes in January of 2022, and the Archivist saw that top secret and classified materials were among them.
In May, a grand jury subpoena was served on the ex-President.
A filter team had already completed reviewing the documents – separating materials that may fall under the category of privileged and that which was out of the warrant’s scope. But Judge Cannon, who should have immediately recused herself from the case, ignored the DOJ’s argument – granting her appointer’s motion.
Trump’s argument was flimsy at best, and the fact is that he had no standing to claim privilege.
“EVEN IF THERE WAS A LEGAL BASIS FOR APPOINTING A SPECIAL MASTER, EXECUTIVE PRIVILEGE CLEARLY DOES NOT APPLY TO THE SEIZED RECORDS,” the rejected amicus brief states in its table of contents.
Apparently, no amount of legal expertise can prevent Judge Cannon from kowtowing to the man who elevated her to her current position on the judicial bench.
The DOJ must be urged to file an immediate appeal against this precedent-breaking ruling.
You can read the entire Amici Curiae brief here.
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