So Now We Have a Special Master

Today, Judge Aileen Cannon, a federal district court judge in Florida, granted Donald Trump’s request for the appointment of Special Master to independently review materials acquired during an authorized search in Mar-a-Lago. 

The reasoning in Judge Cannon’s 26-page order showed that even a moderately qualified judge can be a talented contortionist. I’ll leave the legal shortcomings of the opinion to be parsed by others. Stepping back, though, a few things are notable. 

First, there is nothing in the order to indicate that the search of the premises was either illegal, ill-advised or politically motivated. In fact, the judge noted that: 

[T]he Court agrees with the Government that, at least based on the record to date, there has not been a compelling showing of callous disregard for Plaintiff’s constitutional rights. This factor cuts against the exercise of equitable jurisdiction.

That talking point about the search warrant has bitten the dust. 

Second, one of Judge Cannon’s reasons to appoint a Special Master is, to use her words, “the interest in ensuring the integrity of an orderly process amidst swirling allegations of bias and media leaks.” She further noted that “[a] commitment to the appearance of fairness is critical, now more than ever.” 

As reasonable as this sounds, Judge Cannon failed to address the fact that she was appointed by then-president Trump, and that she had indicated, even before the government was able to present its arguments, that she was “inclined to grant the injunction.” 

When the “appearance of fairness” is at issue, a judge will often recuse (refuse to hear the case). She never even mentioned that possibility, as ethical judges are wont to do. Instead, she also found that “[t]hough somewhat convoluted, this filing is procedurally permissible.”

Third, even while stopping the investigative use of the seized materials, the judge held that “The Government may continue to review and use the materials seized for purposes of intelligence classification and national security assessments.” Allowing this review to continue showed that there were national security concerns raised by Trump holding onto official archival records. Apparently, including this review in the injunction order was a bridge too far. 

The Department of Justice is currently weighing whether or not to appeal Judge Cannon’s order. The investigative delay caused by appointing a Special Master is a minor inconvenience at best.