Despite complaining about being the victim of inappropriate, if not unconstitutional abuse by the courts and the Biden Administration, former President Donald Trump on Monday was gifted a highly unusual, if not unprecedented favor by a federal judge that, at least temporarily halts the investigation into possible criminal mishandling of classified government documents at his Mar-a-Lago resort.
As is by now well-known, FBI agents on August 8th conducted a search of the sprawling Florida resort, which includes living quarters used at times by Trump and his family. The agents removed some 22 boxes containing nearly 13,000 documents and other items of evidence from the resort, pursuant to a lawful search warrant signed by a federal magistrate.
Ever since then, Trump and his supporters have engaged in a full-court press to convince the country that the FBI search was nothing more than an abusive and partisan action to weaken him as a possible 2024 presidential candidate.
Two weeks after the search, Trump’s lawyers filed a motion with the U.S. District Court in West Palm Beach, demanding that the court appoint a “special master” to examine all the seized evidence and determine if any falls within categories otherwise protected against seizure, such as attorney-client communications. On Monday, Judge Aileen Cannon (who Trump nominated for the post shortly before he left office) did just that.
Mr. Trump is being afforded extraordinarily preferential treatment, not only by way of the judge directing that an outside party be empowered to review each and every item seized by the FBI, but by the even more unusual step of explicitly suspending the government’s current criminal investigation.
Based on already publicly released legal filings, it appears that the ongoing investigation includes potential obstruction of justice charges, which could be brought against Mr. Trump himself depending on further evidence and investigation.
A judge injecting herself directly into -- and then halting – a sensitive criminal investigation in its early stages can be highly prejudicial to the government; especially, as appears to be the case here, with agents preparing to conduct (if not already conducting) follow-up interviews and related searches.
Delays at such a crucial, preliminary stage of an investigation can make it more difficult – even impossible -- for the government to gather evidence it needs to justify follow-up interviews and identify additional targets.
These are among the reasons why federal judges very rarely halt an investigation at such a juncture, especially over what in this instance amounts to a not uncommon assertion by defense lawyers that some attorney-client privileged materials were improperly seized.
For one thing, federal judges are well-versed in reviewing seized evidence to determine if any privileged materials were taken during a search. Further, if warranted by evidence of government misconduct, courts can and often do appoint an outside “special master” to review arguably privileged materials.
Going beyond such measures and halting an ongoing criminal investigation (even if only temporarily), as the judge did here for Mr. Trump, is highly unusual and does not appear warranted by applicable law, constitutional principle, or legal precedent.
What makes the judge’s decision even more unusual is her directive that all the seized evidence be reviewed not only for attorney-client privilege, but also to determine if any falls within the broad-ranging “executive privilege” assertion by Trump covering virtually all of the documents he took with him to Florida from the White House.
While the judge tries mightily in her 24-page Opinion to show otherwise, she appears to have leap-frogged ahead to the very substantive concerns that gave rise to the Mar-a-Lago search in the first place, and which perhaps will be the ultimate issues determining guilt or innocence for any of the players involved, including Mr. Trump; namely, mishandling classified federal documents and lying to investigators about such actions.
The legal soundness of Judge Cannon’s decision-making is weakened further when she concludes that failing to give the ex-president the extraordinary relief he sought would unduly “harm” his reputation -- as if that subjective notion militates against protecting highly classified government materials from disclosure.
Whatever the reasons for this judge’s decisions, if her conclusions are permitted to stand, they will leave a very large legal monkey wrench lodged within the mechanisms whereby future departments of justice will be able to hold former presidents (of either major political party) accountable for breaking the law.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.
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