It should be anathema to mention that a judge was “Trump-appointed” and yet legal experts across the spectrum are using words like “pandering” to explain a judicial order about “intending” to appoint a special master to analyze Trump’s motion to examine the materials taken from Mar-a-Lago to be covered by executive privilege. One never wants to believe that a judge is being nakedly political, but there is precious little else to explain why a judge would issue an “intention” (Judges either order or deny an order, they don’t issue things that they “intend” to order), especially when the judge did not allow DOJ to even respond to Trump’s motion.
A federal judge in Florida gave notice on Saturday of her “preliminary intent” to appoint an independent arbiter, known as a special master, to conduct a review of the highly sensitive documents that were seized by the F.B.I. this month during a search of Mar-a-Lago, former President Donald J. Trump’s club and residence in Palm Beach.
In an unusual action that fell short of a formal order, the judge, Aileen M. Cannon of the Federal District Court for the Southern District of Florida, signaled that she was inclined to agree with the former president and his lawyers that a special master should be appointed to review the seized documents.
Again, “preliminary intent” is not really a “thing,” except for perhaps some cases in family court where a judge is desperately looking for more information. Judges don’t issue rulings regarding “preliminary intent’ that are set to be heard in oral argument on Thursday:
But Judge Cannon, who was appointed by Mr. Trump in 2020, set a hearing for arguments in the matter for Thursday in the federal courthouse in West Palm Beach — not the one in Fort Pierce, Fla., where she typically works.
Again, something isn’t right and legal experts across the country have had no trouble picking apart a highly problematic order that could interfere with an ongoing investigation that is of the utmost importance:
According to former prosecutor Glenn Kirschner:
“Before I read this one sentence, Michael, mind you, that she entered this tentative border before the Department of Justice prosecutors even had an opportunity to weigh in on the issue. she said quote, ‘The court hereby provides notice of its preliminary intent to appoint a special master in this case.’ And she has only heard from Trump’s defense team,’
“I think this indicates a judge who has extraordinarily poor judgment at best, and at worse is biased in favor of Donald Trump, As a footnote, I think it is worth mentioning that she was confirmed by the Senate, Mitch McConnell’s Senate after Donald Trump lost the presidential election.”
Former federal prosecutor Cynthia Alksne went further:
“Pandering, I think that is the legal term for this garbage.”
There were certainly plenty of others:
Another reason Cannon’s order is nuts is bc she’s basing it off Trump’s egregious misrepresentation of what happened in SDNY with Rudy, in which the District Judge had been involved in the case for years.
Rudy and Vic weren’t charged. They still aren’t. But Parnas was. pic.twitter.com/Mvp0VpjwHW
— emptywheel (@emptywheel) August 27, 2022
I wouldn’t rule out the possibility that Judge Cannon is going out of her way to be as generous as possible to Trump not because she is biased, but because she is afraid that she might be threatened or endangered by Trump’s sicarios if she throws it out outright and he slams her
— Asha Rangappa (@AshaRangappa_) August 28, 2022
In 30 years of prosecuting cases, I never saw a judge make up her mind on an issue BEFORE the other party had an opportunity to respond to the request. This is dead wrong.
Note: this judge, Aileen Cannon, was confirmed by Mitch McConnell’s Senate AFTER Trump lost the election. https://t.co/AmFa1QVUBz
— Glenn Kirschner (@glennkirschner2) August 28, 2022
A preview of likely points in DOJ’s response to Judge Cannon re the Special Master.
1) there is no such thing as a SM for classified documents
2) there is no such thing as a SM for Executive Privilege documents
3) even if there was, it would all be in camera and ex parte.
— Bradley P. Moss (@BradMossEsq) August 27, 2022
Once DOJ responds to Judge Cannon, and she hopefully understands there are no documents subject to executive privilege and at most a handful subject to atty-client, she should reverse ground on her initial indication of appointing a special master. Already a fine process in place
— Harry Litman (@harrylitman) August 27, 2022
@JasonMiciak believes a day without learning is a day not lived. He is a political writer, features writer, author, and attorney. He is a Canadian-born dual citizen who spent his teen and college years in the Pacific Northwest and has since lived in seven states. He now enjoys life as a single dad of a young girl, writing from the beaches of the Gulf Coast. He loves crafting his flower pots, cooking, and currently studies philosophy of science, religion, and non-math principles behind quantum mechanics and cosmology. Please feel free to contact for speaking engagements or any concerns.