Former President Trump won a significant victory over investigators Thursday. If it stands, it will slow to a crawl the probe into how sensitive documents at Mar-a-Lago were handled.
Unless an appeal filed by the government on Friday succeeds, major action in the probe now seems all but certain to be postponed past the midterm elections — by which time Trump might plausibly declare himself a 2024 presidential candidate.
In that scenario, he can be expected to argue with even more gusto that he is being victimized for political reasons by the Department of Justice (DOJ) and FBI. At a recent rally in Pennsylvania, Trump labeled the two organizations “vicious monsters.”
The win for Trump came when Judge Aileen Cannon announced Thursday that she would appoint Raymond Dearie, a semi-retired judge proposed by Trump’s legal team, as a so-called special master in the case that first burst into public view with the Aug. 8 FBI raid on the former president’s Florida club.
Cannon, herself a Trump appointee, favored the former president in other important ways, too.
The typical role of a special master is to evaluate documents seized in a law enforcement raid to see if any might be privileged attorney-client communications — or private and without evidentiary worth.
Cannon held that Dearie could evaluate all the documents seized, including those marked classified, for this purpose. Around 11,000 documents were taken in the raid, with about 100 bearing classified markings.
The government has argued — including in its Friday appeal — that, even if Cannon insists on going ahead with the appointment of a special master, documents with classified markings should be exempt from the process.
In essence, the government asserts that such documents cannot, by their nature, be Trump’s personal property and are self-evidently germane to the investigation.
But “the Court does not find it appropriate to accept the Government’s conclusion on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion,” Cannon wrote.
Moving forward, there are two other crucial aspects to Cannon’s latest decision.
First, she has given the special master until Nov. 30 to complete his work, clogging some lines of investigation for at least six weeks.
Second, Cannon held fast to a controversial view.
She asserts that it is possible to pause the use of the seized documents in a criminal probe, pending Dearie’s review, while at the same time proceeding with a separate process that would evaluate whether national security interests might be threatened.
Media reports have suggested that at least one seized document refers to a foreign nation’s nuclear capabilities. Several were categorized as “TS/SCI,” an abbreviation that stands for “Top Secret/Sensitive Compartmented Information.”
Cannon took an undisguised jab at investigators in her Thursday decision, noting that the main national security jeopardy in the case so far emanates from “the unwarranted disclosures [in] leaks to the media after the underlying seizure.”
The government had argued that the two strands being probed — national security implications and possible criminality — cannot be separated.
If the DOJ does not prevail in its appeal, legal experts say investigators face significant problems.
Investigators cannot for now use the content of any of the seized documents in interviews with potential witnesses. In practical terms, that would seriously neuter the probe.
“How does one investigate issues relating to those documents from an intel standpoint if you still can’t share the contents?” said Mark Zaid, a D.C.-based attorney who specializes in cases related to national security.
“The first question, let’s say to a member of staff at Mar-a-Lago, might be, ‘Where did you see the classified document?’ And they say, ‘Which one?’ And the answer is, ‘We can’t tell you.’ The FBI runs out of steam within two questions.”
Zaid noted, however, that this does not necessarily remove all legal jeopardy faced by Trump or those close to him.
Previous filings have shown that one of the potential crimes being investigated is obstruction.
A case could be made that such a crime had taken place, without reference to the actual contents of the documents.
The chronology of events leading up and including the FBI search of Mar-a-Lago suggests that Trump and the people around him were subpoenaed to produce all documents bearing classified markings and said they had done so, when in fact they had not.
That could be seen as evidence of a crime, regardless of the specifics of what the documents contain.
In the real world, however, the DOJ might be reluctant to indict a former president at that stage when it might otherwise wait for the special master’s review to conclude.
Meanwhile, some legal observers are pushing back hard against Cannon’s decision.
“Judge Cannon wasn’t simply leaning in Trump’s direction but falling at his feet,” said Harry Litman, a former U.S. Attorney and Deputy Assistant Attorney General.
Dearie has directed counsel for the respective sides to appear in a federal courthouse in Brooklyn, N.Y., on Tuesday for a “preliminary conference.”
Complicating matters further, Cannon has permitted Dearie to evaluate the documents for whether Trump might justifiably exert executive privilege — not merely attorney-client privilege — over any of them.
The nuances of the legal arguments don’t disguise the underlying realities.
A Trump-appointed judge has placed a significant speed-bump in the way of the investigation.
The obstacle may be cleared on appeal.
If it is not, prosecutors face a frustratingly slow road ahead.
The Memo is a reported column by Niall Stanage.