The DOJ had asked narrowly to be allowed to review only the documents marked classified, and for the special master’s review to exclude them. But Cannon rejected that while appointing a special master pick that both sides had assented to, Raymond J. Dearie.
Cannon’s original order was widely criticized as being overly deferential to Trump and his claims, and for seemingly giving him preferential treatment. And there’s more grist for that mill in the latest order.
Below are some key points.
1. The ‘factual dispute’ that isn’t directly disputed
One of the most puzzling ongoing developments in this legal drama is the Trump legal team’s ongoing refusal to actually claim in court that Trump declassified the documents at issue, though Trump has said publicly that he did. Despite multiple opportunities — and despite having access to a client who would seemingly know the truth — it has conspicuously refused to do so. It has merely said the Trump had the power to do so and that whether he possessed classified documents was in dispute, without actually directly saying he declassified these documents.
It turns out this was good enough for Cannon.
In her order, she notes that the DOJ says the records remain classified, but says, “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 does not cite Trump’s or his team’s actual claims, but she does refer to whether the documents are actually classified as among the “ongoing factual and legal disputes.” And she even suggests Trump might not know the status of the documents: “Plaintiff has not had a meaningful ability to concretize his position with respect to the seized materials,” in part because Trump’s team wasn’t given requested information on the seized documents.
The ruling leaves the impression that Trump somehow might not truly know whether he declassified these documents. But mere hours before the order, he had reiterated on a radio show that “everything was declassified.” Cannon has shown basically no interest in squaring such public comments with what Trump’s legal team argues in court.
2. Allegations of special treatment
As in her previous order, Cannon effectively acknowledges she is treating this case differently because Trump is a former president. She reasons that, due to Trump’s former position, a search poses much greater risks to his reputation than in a situation involving an everyday citizen.
“Based on the nature of this action, the principles of equity require the Court to consider the specific context at issue, and that consideration is inherently impacted by the position formerly held by Plaintiff,” she writes.
Certainly, there occasionally can be good reason for treating a case differently; special masters are generally reserved for cases with exceptional circumstances. But critics have said she extends this too far by focusing on who Trump is.
In her earlier order, she wrote: “As a function of plaintiff’s former position as president of the United States, the stigma associated with the subject seizure is in a league of its own.”
3. Suggestion of the potential for leaks
Another commonality between the two orders is Cannon’s suggestive language about leaks as part of why a special master is necessary.
She briefly alluded to this prospect in a footnote of her order last week, and she expands on it in her latest. Not only did the government not convince her that Trump’s possession of the documents might lead to “imminent disclosure of classified information,” she writes, “instead, and unfortunately, the unwarranted disclosures that float in the background have been leaks to the media after the underlying seizure.”
Importantly, though, Cannon doesn’t address where these leaks might have come from. Leaks in these kinds of cases come from lots of different places, including from those outside the government who might have insight into what is taking place. (Trump’s political operation and White House have leaked prodigiously in the past.) Nor does Cannon actually say that the risk is that classified information might leak. But that sentence comes right after she addresses the potential public disclosure of classified information, which is certainly suggestive.
A Justice Department lawyer previously said he was unaware of any leaks from his team. Cannon summarized that in her previous order as the lawyer, Jay Bratt, having “candidly acknowledged the unfortunate existence of leaks to the press.” But Bratt didn’t concede those leaks necessarily came from the government; in fact, he drew a line between leaks more broadly and those that would come from DOJ.
“I see the same things in the press that other people do. It’s bad,” Bratt said. “People are talking. If people on the government’s side are talking about it, I’m not aware of anybody that we work with that has had contact with the press and certainly don’t condone it in any way.”
4. Giving herself a possible out
Even as Cannon rejected the Justice Department’s request, some saw her ruling as giving herself a potential exit ramp from her initial, controversial order.
She instructs Dearie to first review the approximately 100 documents marked classified and says the court will “thereafter consider prompt adjustments to the Court’s Orders as necessary.” Georgetown University law professor Heidi Li Feldman said that raised the prospect that Dearie could recommend to Cannon that the Justice Department be given access to the documents before an appeal by the government could be decided.
She also appeared to give the Justice Department some wiggle room in proceeding with the criminal case. The DOJ has argued that the criminal probe is “inextricably” tied to the national-security assessment that she has allowed to proceed, and thus it must have access to the classified documents. One reason is that it says the DOJ has a role to play in tracing classified documents to empty folders with classified banners that were seized.
Cannon maintains she’s not convinced of that, but she opens the door to it.
She writes that, “to the extent that the Security Assessments truly are, in fact, inextricable from criminal investigative use of the seized materials, the Court makes clear that the Sept. 5 Order does not enjoin the Government from taking actions necessary for the Security Assessments.” At another point, she essentially repeats this and sets the standard at when the “intelligence review becomes truly and necessarily inseparable from criminal investigative efforts.”
It’s difficult to know precisely what to make of that. What is “truly and necessarily inseparable?” But it would seem to give the Justice Department some license to explore, given many national security experts have agreed the two are indeed inseparable.