Column: The Mar-a-Lago judge’s latest opinion is as atrocious as legal experts say it is

U.S. District Judge Aileen Cannon’s 10-page opinion Thursday denying the government’s request to stay the Mar-a-Lago document case is savaged by commentators in terms normally reserved for grotesque judicial transgressions, such as the infamous Dred Scott Supreme Court decision.

Respected and generally sober legal analysts have called it an abomination, “legally and practically incoherent”. “Hazardous Garbage” and declared Cannon “a partisan hack”. “No honest and competent legal analyst could have made the decision she did,” Harvard Law’s Laurence Tribe tweeted.

Can the opinion really be that bad?

In a word yes.

The report’s key flaws go well beyond overstretching the law and stretching facts in favor of Donald Trump. The judgment is based on the most fundamental disregard for judicial responsibility and represents a complete departure from the fundamental principle of the separation of powers.

Cannon was indeed returned an elegant way last week from her also widely pilloried report, in which she found that a special foreman was required to review government documents seized at Mar-a-Lago.

The Justice Department requested a modest stay, which extended to just 100 pages of classified information found at the beach resort. It is undisputed that such documents are taboo for a private individual like the former President.

Trump’s lawyers made no attempt to challenge this principle. Rather, they bizarrely argued that just because the government said the documents were classified, that wasn’t necessarily the case.

This is, of course, spectacular gibberish. The real meaning of classified documents is that the executive branch has made a determination about their contents and marked them as classified.

But Cannon adopted Trump’s Alice in Wonderland approach. She concluded that it would not be “reasonable” – what she believes is the closest thing to legal reasoning – “to allow the government’s conclusion on these important and contentious issues without further verification by a neutral third party”, i.e. a special master accept .

Cannon essentially redefines the classification process as a preliminary ruling by the executive branch that can be overruled by individual judges like herself. Aside from his legal bankruptcy, such a proceeding would wreak havoc on national intelligence matters involving the very designations Cannon has set aside.

Even more logical and legally flimsy was the Trump team’s next move, which the judge also accepted. The former president has repeatedly argued publicly that he declassified the documents. But his lawyers have carefully avoided saying so in court documents, where lying is subject to professional and criminal penalties. The Trump files only indicate that he may have declassified the documents.

The appropriate response of a judge in these circumstances is to put Trump on the witness stand and ask him, “You have or you haven’t?” Otherwise, “maybe” means the matter is unresolved and the argument loses.

But Cannon either doesn’t know or doesn’t care what judges do in a situation like this. It’s important to emphasize that she’s not just leaning in Trump’s direction, she’s pouncing on him.

Judges sit together to settle disputes based on evidence. Trump’s team offered none for his positions, instead relying only on the most speculative arguments. It is fundamental to the opposing legal system that evidence and the law, not speculation, determine the outcome. Nothing in the Trump team’s files justifies freezing a criminal investigation and a national intelligence probe in their tracks.

And that’s another glaring mistake, in Cannon’s opinion. The Justice Department produced an affidavit that specifically explains why a national intelligence review of the Mar-a-Lago documents cannot proceed if the criminal investigation is dropped. Cannon simply denied it – again, no evidence to the contrary was presented – and reiterated her idea that the National Intelligence Review could go forward. This judgment was based on a complete ignorance of executive branch practice and a presumption on the part of the executive branch of itself.

Finally, and grotesquely, Cannon stated that her decision was “inherently influenced by the position formally held by plaintiff.” In other words, her promise to exercise equal justice before the law has an exception for the president who appointed her.

It couldn’t be clearer that the omissions here represent a gross departure from the proper function of a federal judge — resolving disputes according to the evidence and respecting the role of the coordinating chambers.

And that doesn’t even touch on the debacle created by the appointment of a special master in this case, where executive privilege is to be assessed by the special master, notwithstanding firmly established laws that the former president has no such claim to documents he stole and hidden.

The Justice Department will appeal. Many observers have noted that the Cannon court has a conservative majority, and that is true and dangerous. Nevertheless, the shortcomings of the report go beyond conservative versus liberal legal philosophy. Only when the appellate judges, like Cannon, are willing to relinquish their fundamental role as bailiffs can this incoherent opinion stand.

If that happens – which I don’t expect – we would be really lost.

@HarryLitman Column: The Mar-a-Lago judge’s latest opinion is as atrocious as legal experts say it is

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