On September 15, federal district Judge Aileen Cannon denied two requests that the Department of Justice made last Thursday: First, that the DOJ be allowed to resume reviewing allegedly classified records seized by the FBI in its August 8 raid of former President Donald Trump’s Florida residence; and second, that no neutral third party be brought on to vet these same documents.
Cannon wrote: “The court does not find it appropriate to accept the government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion.”
She took issue with the DOJ’s demand that she “adopt hastily without further review by a Special Master” their premises and called into question the department’s representation of the documents, saying “evenhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice.”
In a Monday filing, Trump’s attorneys noted that the former president is endowed with the powers to declassify records, without expressly stating that Trump had done so. Trump has, however, explicitly indicated he declassified the documents.
The judge signaled that, while the DOJ has suggested the contrary to be true, having presupposed “the content, designation, and associated interests in materials under its control,” there are nevertheless remaining “disputes as to the proper designation of the seized materials.”
Cannon also rejected DOJ arguments that the records belong to the government and that Trump cannot claim executive privilege.
Extra to suggesting the DOJ was not deserving of blind trust, she noted that unlike the former president, the government has been responsible for “unwarranted disclosures” in the way of “leaks to the media after the underlying seizure.”
This decision constitutes a big upset for Attorney General Merrick Garland’s DOJ, which vowed to take the case to the U.S. Court of Appeals for the Eleventh Circuit in Atlanta if the department didn’t get the desired result from Cannon.
The DOJ is investigating Trump for retaining government records after he left office and keeping them at his Mar-a-Lago residence. The department is also reportedly looking into possible obstruction in light of allegations that certain records may have been hidden from the FBI when, executing a grand jury subpoena, the agency sent agents to Mar-a-Lago in June to recover supposedly classified documents.
Cannon’s decision is, conversely, a win for the former president, whose attorneys first asked for a special master in August to review seized records for material that could be covered by attorney-client privilege or executive privilege. In the case of either, documents might be shielded from disclosure, precluding prosecutors from using them to build a possible criminal case against the former president.
Trump’s attorneys suggested last month that a special master was not only needed to “restor[e] order to chaos” but to keep in check prosecutors otherwise keen to “skip the process and proceed straight to a preordained conclusion.”
Cannon appointed Senior District Judge Raymond J. Dearie, a pick agreed upon both by the DOJ and by Trump’s team, as the third party responsible for reviewing records seized by the FBI. Dearie was the judge who signed off on the final FISA warrant against former Trump adviser Carter Page.
Dearie, a federal judge appointed by former President Ronald Reagan, has been instructed by Cannon to prioritize reviewing classified records first and to complete his review after the midterm elections on November 30. He will vet approximately 100 allegedly classified documents among the 11,000 records seized in the FBI raid.