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.

 

Injunction Junction, What’s Your Function?

As part of the Congressional special committee’s examination of the facts relative to the January 6 attack on the Capitol, they have requested the National Archives to release a tranche of information related to Donald Trump’s potential involvement. As a surprise to nobody, Trump filed suit to stop the production of these materials. 

The term “injunction” is being used in so many contexts here that it might be helpful to outline the different kinds of injunctions that are involved. 

When Trump’s lawsuit asked for an injunction to prevent the National Archives from producing materials, it claimed that, although records are readily available, the Congressional committee simply should not be allowed to have them. Ever. The ultimate goal of the case is to permanently prevent the committee from receiving access to these documents. This is a permanent injunction. 

It takes a lot of time and legal proceedings for a permanent injunction to take effect. The Court must consider a variety of facts and also determine whether there is a legal basis that would allow an injunction to be issued. 

In this case, time is not a luxury that Trump has. According to the timetable for producing documents (which is outlined by statute), the National Archives are required to produce the first tranche of these documents by Friday of this week. 

Because the proceedings necessary to receive a permanent injunction will take so long, Trump asked for the process to stop in its tracks until all of the arguments can be presented. He did this by asking for a preliminary (or temporary) injunction. When confronted with a preliminary injunction request, the court considers a number of factors, including irreparable harm to the requesting party. 

Yesterday, the court denied Trump’s request for a preliminary injunction. The next step for Trump, then, is to appeal this decision, asking a higher court to reverse the denial of the preliminary injunction (which he did). However, there is one step that occurs before the appeal ever takes place. 

Trump was required to ask for a different injunction, one where the lower court, on its own, stops the process until the appellate court can weigh in. This is called an injunction pending an appeal or an administrative injunction. This is what is being argued today. 

If that injunction request is denied, Trump will immediately ask the appellate court to stop the proceedings while it considers whether the preliminary injunction was properly denied. 

Confused yet? Try this. 

Trump requests a permanent injunction (ongoing as part of the complete case)

Trump requests a temporary injunction concerning production of documents (denied)

Trump files an appeal (pending)

Trump requests an injunction pending appeal with the lower court (pending)

If that is denied, which is likely, Trump will ask the appellate court to reverse the denial of the temporary injunction. In other words, the appellate court will be asked to order the lower court to grant a preliminary injunction until the full case is heard. 

Considering the case law on the subject, it is likely that the committee will eventually be given access to some, if not all, of the National Archives records they have requested. This is especially true because the National Archives do not contain confidential (privileged) communications of a former president. 

The question, then, is how long Trump will be able to drag out the process. We will learn that shortly.