One of the main criticisms of Donald Trump’s judge appointments was that they were clones of the Federalist Society that supported strong executive authority and rejected what some saw as judicial intervention in the activities of the executive branch.
Judge Aileen Cannon’s latest rulings in the dispute over secret documents allegedly kept by the former president at Mar-a-Lago have completely refuted that notion.
Cannon, a 41-year-old former federal prosecutor and Trump candidate, issued a series of rulings last week that allowed the former president’s extraordinary requests in the investigation into the custody of documents in her home.
The judge, in the government’s view, effectively halted the investigation by stating that prosecutors and the FBI could not use the seized information to question any witnesses. The judge also ordered that copies of everything taken be turned over to Trump’s attorney.
Numerous legal experts, many of whom were on the right, harshly criticized the decisions, noting the extent to which they strayed from the conservative judicial consensus. During her confirmation hearing in 2020, Cannon listed her membership in the right-leaning Federalist Society, which she had joined when she enrolled in law school at the University of Michigan, on her resume comparatively. brief of her
Despite this association, many lawyers who favor broad executive authority contend that Cannon’s instructions appear to conflict with majority opinion among the well-known group of conservative lawyers.
According to John Yoo, a law professor at the University of California Berkeley, “a strong understanding of the executive branch suggests that it really is not the duty of the courts to decide what is classified or unclassified.” “I think most of those who support the unitary executive also believe that the president — the current acting president — determines what information is classified and what information is not classified.”
In an effort to respond to the FBI’s historic Mar-a-Lago raid on August 8 for evidence of illegal retention of classified material, theft of government records and obstruction of justice, Trump questions both concepts.
Cannon has yet to decisively win Trump’s case on the merits. However, the special master procedure she chose also appears to be open to the possibility that she or the master, U.S. District Court Senior Judge Raymond Dearie, will conclude that Trump declassified the documents with marks such as “Top Secret/SCI”. “Or that he has the authority to regulate its use.
A former Trump administration employee and lawyer close to many Federalist Society officials said: “It’s a strange position. “It doesn’t make sense… How will a judge assess if something will seriously harm the national interest? They are not competent in that area.
Cannon’s directives, especially her choice to halt the criminal investigation into Trump while the document review is ongoing, appear to be an act of deference to the former president that is never shown to those who are the subject of national security-related investigations. .
Having defended suspected spies and terrorists, Virginia-based criminal defense attorney Edward MacMahon Jr. commented, “I’ve never seen a warrant like that in a criminal case in 35 years.” All the espionage clients I have had have expressed a strong desire for this judge to be appointed, as doing so would speed up the process and allow for the appointment of a special master. It would be quite useful.
Lawyers who support a strong division of powers between the executive, judicial and legislative departments find it especially galling when a judge tries to stop a criminal investigation.
The executive branch has the sole authority to conduct investigations and bring charges, according to MacMahon. The judge cannot interfere with an investigation or prevent the executive branch from carrying out its current duties.
Prosecutors investigating the Trump documents are also preparing their arguments against the possibility that some of the judges on the 11th Circuit bench, which is made up primarily of Trump appointees, take issue with claims that the Justice Department needs autonomy and that the executive branch should continue to have virtually unrestricted control over matters of national security, including classified information.
Prosecutors on Friday asked the appeals court to exclude the roughly 100 documents marked classified from the broader review Cannon ordered, arguing that courts had “executed considerable caution” before intervening through civil actions with investigations or investigations. criminal cases.
The Justice Department also cited a decision made last year by the 11th Circuit in a case that was sparked by the federal government’s controversial 2008 decision not to charge financier Jeffrey Epstein with sex trafficking in connection with the encounters with him. with teenagers. Similar charges were brought against Epstein in 2019, and he killed himself in a federal jail in New York City about a month later.
According to Gerald Ford-appointed Judge Gerald Tjoflat, “the notion that a district court could have any input into a United States prosecutor’s investigation and decision whether to… bring a case” is “totally inconsistent with the constitutional assignment to the Executive Branch of exclusive power over procedural decisions”. Justices Kevin Newsom and Barbara Lagoa, both Trump appointees, agreed with Tjoflat’s position.
In its closing sentence, the Justice Department’s petition asking the appeals court for relief in connection with the search for Trump asserts that Cannon “erred in deviating from the fundamental concept of judicial restraint.”
Conservative lawyers have not unanimously denounced Cannon for usurping government power. Some point out that he has not yet lent any firm
decisions and is simply trying to establish an orderly process in a highly unusual dispute involving a former president.
According to David Rivkin, a longtime Federalist Society member who worked in the Justice Department’s White House Counsel’s office under Presidents George W. Bush and Ronald Reagan, “his appointment of a special teacher is a reasonable step given the factual disputes between the Justice Department and Trump’s lawyers. regarding confidential attorney-client materials and classified documents.” His goal is to strengthen public confidence that these situations are handled fairly and without unduly burdening the government’s legitimate prosecution and national security goals.
According to some well-known members of the Federalist Society, Cannon is simply paving the way for the legal system to handle the legal ramifications of the search, as if Trump still enjoys executive privilege over materials taken from his Florida estate.
The extent to which a former president can claim the privilege even after leaving office is still up for debate, according to C. Boyden Gray, who served as White House counsel for President George H.W. Bush. “I don’t think it’s true to say that the privilege ends when the president leaves office. The concept goes further. The objective is to shield the president or his advisers so that they can argue against a policy or play devil’s advocate without it being implemented a year later.
To vociferous detractors, however, Cannon’s orders so far at the Trump Mar-a-Lago document battle stoked concerns about whether Trump-appointed judges are living up to the ideals that many Federalist Society members have espoused. . The so-called “unitary executive” idea, which holds that the president has broad control over all executive authorities, is one of them. It holds that all members of the executive branch work for the president.
Eric Segall, a law professor at Georgia State University, said what he is doing is clearly at odds with the unitary executive idea. “Obviously, a president who has left office is essentially a civilian, with the exception of receiving briefings from the Secret Service and security…Honestly, I find it hard to believe these orders.
Trump was the first presidential candidate to essentially outsource much of the judicial nomination process to the organization, even though the Federalist Society was created in 1982 and its popularity steadily increased. He also released the lists of candidates for the Supreme Court that the society and the Heritage Foundation had reviewed. Trump’s judges haven’t been on the bench for long, but there is some evidence that they may be more hostile to law enforcement than their own judges. Republican-appointed predecessors and even many judges appointed by Democratic presidents. This suggests that some of the judges Trump appointed may have been influenced by his public criticism of the FBI.
Segall said he believes that Washington lawyers associated with the Federalist Society and academic members of the organization have different perspectives on Cannon’s decisions.
The liberal lecturer declared: “I think there is a division there.” “The vast majority of Federalist Society professors I know and follow believe this is terribly wrong. Bravo for them.