STILL TICKING UP — President JOE BIDEN's average approval rating at 538 has hit 43%, the highest it's been since mid-March. A SHORT HISTORY OF WAPO'S NUKE DOC SCOOP — WaPo, Aug. 11, 2022: "FBI searched Trump's home to look for nuclear documents and other items, sources say" DONALD TRUMP, Aug. 12, 2022: "Nuclear weapons issue is a Hoax, just like Russia, Russia, Russia was a Hoax, two Impeachments were a Hoax, the Mueller investigation was a Hoax, and much more." WaPo, Sept. 6, 2022: "Material on foreign nation's nuclear capabilities seized at Trump's Mar-a-Lago" JARGON WATCH — "Document storage issues" is the new term used by Trump's lawyer, CHRISTOPHER KISE , to describe the government's criminal investigation. Sen. MARCO RUBIO (R-Fla.) used a similar phrase this week, describing the case as "a storage argument." The phrase seems to be replacing Trump attorney JIM TRUSTY's recent claim that Trump's retention of hundreds of pages of highly classified documents was akin to a dispute about an "overdue library book." CANNON FODDER — Legal pundits have had another day to digest Monday's confounding opinion from Judge AILEEN CANNON. Recall that the 41-year-old Trump appointee (who was confirmed in the days after the 2020 election) granted the former president's request to appoint a special master to review the documents taken from Mar-a-Lago, and enjoined the Department of Justice "from reviewing and using the seized materials for investigative purposes." She ordered the Office of the Director of National Intelligence to continue its damage assessment review of the documents. Lawyers are, by definition, a quarrelsome bunch, and members of the pundit bar are especially quick to second-guess any opinions that aren't theirs. But they are also as ideologically divided as the rest of the country. So it's notable that while Cannon has had little trouble finding political support for her decision, she has been largely alone when it comes to support for her legal arguments. "She is obviously very bright. Obviously very conservative. And obviously very inexperienced," one experienced Florida attorney told Matt Dixon, who reports that Cannon has had few high-profile cases in her short federal career. Even former Trump-era Attorney General BILL BARR piled on: "The opinion, I think, was wrong, and I think the government should appeal it. It's deeply flawed in a number of ways," Barr said on Fox News . "I don't think the appointment of a special master is going to hold up." As Barr's comments attested, the condemnation and confusion about the ruling has only deepened since Monday. It continues to be the story this morning, so let's wade into the criticisms, as well as the scarce Cannon defenses out there. CRITICISM NO. 1: A special master isn't equipped to adjudicate claims of executive privilege Special masters are more commonly used in cases where large quantities of documents protected by attorney-client privilege are at issue, like an FBI search of a law firm. While DOJ has already set aside those types of documents, having a special master repeat the process shouldn't be complicated — and it could even serve DOJ's interests by providing an independent review of their work. But Cannon is also tasking the special master with a review of documents that may be subject to claims of executive privilege by Trump, which the WSJ notes, "left some legal experts confused." PAUL ROSENZWEIG tells the Journal, "You have to give a special master some guidelines. I think that Trump has no executive privilege; other people may disagree with that. But that's a legal question. It's not for the special master to decide." BARBARA McQUADE, a former U.S. attorney, told PBS : "I think that this order may be problematic, in that it allows the special master to review for executive privilege without really defining what that means. A special master doesn't make legal decisions. A special master does sorting work. … It's really nonsensical to think that a former president can assert executive privilege against the executive branch. We have seen some courts recognize a residual privilege in a former president that can be requested and then asserted by the incumbent president, if he agrees, but only as to third parties, like Congress, when they're asking for information." CRITICISM NO. 2: You can't separate DOJ's review of the documents from ODNI's review "It is at best difficult — and more likely impossible — to do a meaningful ODNI damage assessment while the FBI investigation is stalled," DAVID PRIESS, a former CIA employee and author of The President's Book of Secrets, told the Journal. In the WaPo, David Ignatius devotes his column to this dilemma: "'It is impossible to square these two rulings,' says JAMIE GORELICK, a former deputy attorney general under President BILL CLINTON. JEFF SMITH, a former CIA general counsel, explains: 'It's not clear from Cannon's opinion that she understands what's entailed in a damage assessment. I think she must believe that all they have to do is look at the documents and decide what harm would result if they were leaked or given to someone without authority.' "ROBERT LITT, a former ODNI general counsel, observes: 'Typically, when you do a damage assessment … you know who has access to the information: EDWARD SNOWDEN released information to the world; ALDRICH AMES to the Russians. I don't remember ever seeing one during my time where we knew that information had been mishandled but we don't have any idea whether anyone had access or who.'" CRITICISM NO. 3: Cannon has created a special criminal justice carveout for former presidents — or perhaps just Trump Perhaps the most derided line in Cannon's opinion is her insistence that the reputational hit of a search and seizure of a former president is "in a league of its own," a new legal status she created. WSJ: "That element of Judge Cannon's decision is fundamentally flawed and 'in tension' with the idea that all people are equal under the law, said DAVID SKLANSKY, a professor of criminal law at Stanford Law School." McQuade takes a more sympathetic view of Cannon on this point: "I … think that language might be there to prevent this case from being cited in other cases. So, for example, if somebody in a garden variety bank robbery case in the future was subject of a search and said, I want a special master to review for privilege, and cited this case, the government could distinguish it by saying, no, no, no, look at this language. She says this is a unique situation." But many observers suggested that Cannon's logic is backwards: As a former president with unparalleled access to the media, Trump has the ability to defend his reputation in ways that typical targets of a criminal investigation do not. CRITICISM NO. 4: Cannon has co-opted functions reserved for the executive branch "If a judge can tell a different branch of government, 'I'm taking over your job,' then how does the executive branch function?" ORIN KERR, a University of California, Berkeley law professor, told Nicholas Wu, Kyle Cheney and Josh Gerstein. National Review's Andrew McCarthy, in a column that's mostly critical of the judge's logic and legal reasoning, adds, "[T]he judge's rationale for exercising equitable jurisdiction … is 'reserved for "exceptional" circumstances.' Her conclusion that there are such circumstances here is based on some dubious assumptions." THE CASE FOR CANNON — There are some defenders of the opinion, though their arguments are more about the politics of the case, rather than the legal merits. WSJ: "That move struck some observers as a sensible way to help assure the public that the Justice Department's investigation was transparent and fair. 'She is worried about that 40% of the country that thinks the Justice Department has been unleashed on the former president,' said SAIKRISHNA PRAKASH, a law professor at the University of Virginia." POLITICO: "While it was difficult to find legal scholars Tuesday offering an outright endorsement of Cannon's ruling, some said it was a reasonable one given the circumstances. ''I'm not here to praise her order or condemn it,' said JOHN MALCOLM , a former federal prosecutor and Justice Department official who now heads up the Meese Center at the Heritage Foundation. 'This is all uncharted territory, so what she's basically saying is: let's take a pause. … That strikes me as not being an unreasonable thing to do.'" Good Wednesday morning. Thanks for reading Playbook. Drop us a line with your best Cannon puns: Rachael Bade , Eugene Daniels, Ryan Lizza.
| 
No comments:
Post a Comment