Judge Cannon halts criminal investigation and orders appointment of special master In a ruling on September 5, Cannon ordered DOJ to halt its review of the materials while allowing the intelligence community to continue its assessment of the potential harm caused to national security. She announced that she would grant Trump's request for a special master to review the seized documents for attorney-client and executive privilege and ordered DOJ and Trump to file a joint list of candidates "with the requisite security clearances and legal expertise" by September 9. Among other reasons for appointing a special master, she cited an "interest in ensuring the integrity of an orderly process amidst swirling allegations of bias and media leaks" and the historic nature of the case, Former Trump administration attorney general
William Barr said that the judge was wrong in deciding that a former president can keep the executive branch from reviewing documents while investigating a potential crime by invoking executive privilege over those documents. When Cannon struck two sealed motions filed by Special Counsel Jack Smith's team, she ordered him to address the basis in law of a Washington, D.C. "out-of-district grand jury" that was investigating the Trump case. Former federal prosecutor
Joyce Vance wrote, (It's),"looking like a good week to ask the 11th Circuit to replace the judge." MSNBC legal analyst Katie Phang commented, "If the
DOJ filed under seal certain documents and Judge Cannon just disclosed the existence of an otherwise confidential grand jury proceeding, we might be at the motion for recusal stage for the DOJ." Ex-U.S.Attorney Harry Littman similarly asked, (It's) "Hard to see how she can justify not sealing her order referring to another Grand Jury. Could this be a possible vehicle for taking her up and seeking her recusal?"
Andrew Weissmann, a former member of Attorney General
Robert Mueller's special counsel team said that her ruling "clearly shows her ignorance," and that Trump's alleged obstructing, "are charges that could have been brought in Florida
or DC," so could be investigated in both venues," and, "...there was conduct that is alleged to have occurred," beyond Florida. Former Michigan USAG
Barbara McQuade said Jack Smith "may need to politely tell Judge Cannon to butt out."
Judge Cannon appoints special master On September 9, DOJ and Trump's lawyers submitted their joint filing, each side proposing two different candidates and differing views on the tasks and duration of the special master's review. DOJ suggested
Barbara Jones and
Thomas Griffith and Trump's legal team suggested
Raymond Dearie (a senior judge of the
U.S. District Court for the Eastern District of New York) and
Paul Huck Jr. A few days later, the DOJ filed papers saying that it would accept Dearie (one of Trump's two candidates) as a special master, while Trump's lawyers filed a document opposing both judges proposed by the DOJ. Trump's filing also suggested that some documents marked classified may not be and that Trump may have the right to have them in his possession. On September 15, 2022, Cannon appointed Dearie
special master, tasked him to review all documents seized in the August 8 search, and ruled that Trump would have to pay the costs. Dearie accepted the appointment.
Eleventh Circuit reverses district judge's halt to use of records in criminal investigation In early September 2022, DOJ asked Cannon to rescind her rulings to have the special master review classified material and halt FBI access to classified material seized during the search, arguing that these materials were "inextricably linked with the criminal investigation" and noting that Cannon's orders had also halted the
Intelligence Community's review of classified material. DOJ said it would appeal Cannon's rulings to an appellate court if she did not rescind them herself. DOJ did not oppose the appointment of a special master to review personal documents and "some other items". On September 15, Cannon refused to reconsider her rulings blocking the use of any of the material for investigative purposes pending the special master's review. She denied even the DOJ's request for a limited stay to allow investigators to once more access the approximately 100 documents bearing classification markings. The next day, DOJ asked the
11th Circuit Court of Appeals to stay Cannon's rulings pending appeal, thus immediately allowing the criminal investigation to proceed. DOJ requested the right to review the classified documents recovered from Trump's residence; and to have such documents exempted from review by the special master. Trump asked the
U.S. Supreme Court to vacate the Eleventh Circuit's September 21 ruling, arguing that the appeals court lacked jurisdiction over Cannon's order. DOJ opposed Trump's request.
Special master review On September 20, at the first hearing about the special master's review, Dearie indicated that if Trump's lawyers "decide not to advance a claim of declassification", then he would accept the government's
prima facie evidence that the documents remain classified, once that evidence is provided. During the hearing, Dearie said that he "can't allow litigation strategy to dictate the outcome of [his review and] recommendations to Judge Cannon", referring to vague declassification claims by Trump's side. On September 22, Dearie gave Trump one week to formally submit any specific claim of inaccuracies with the inventory of seized documents, including if any of the materials listed "were not seized from the Premises on August 8, 2022". DOJ was also instructed to submit electronic copies of all unclassified documents to both Dearie and the Trump legal team by September 26. On September 28, Trump's team objected, arguing that Cannon initially had not ordered them to confirm the inventory, that they could not review the classified documents because they no longer had access to them, and that Dearie had not given them enough time to review what they claimed to be nearly "
200,000 pages". (This estimate was disputed at the time as much too large given the physical volume of materials seized.) On September 29, Cannon blocked several of Dearie's orders, agreeing with Trump's legal team on multiple issues and extending Dearie's deadline from November 30 to December 16. However, DOJ, in its October 14 brief before the Eleventh Circuit, countered that there were approximately 13,000 documents totaling 22,000 pages. Dearie then gave a precise count of 21,792 pages. DOJ said the Trump team's overestimation came from a company hired to digitize and database the documents. On November 14, a pair of legal briefs were partially unsealed. In the arguments made to the special master, Trump's attorneys claimed that some of the seized documents were designated as "personal property" per the
Presidential Records Act and may also be protected by executive privilege claims. DOJ argued that Trump's claims were faulty on multiple grounds, and that noted that Trump's lawyers had only claimed attorney-client privilege over one of the seized documents and executive privilege over 121 documents. The court agreed to expedite its consideration of the appeal, and heard oral arguments on November 22. On December 1, the Eleventh Circuit ruled in favor of DOJ. The appeals court's ruling ended the special master review, allowed the government to use all the documents in its investigation, and directed the lower court to dismiss Trump's lawsuit. The three-judge panel unanimously rejected Trump's position, although all three judges were appointed by Republican presidents, and two were appointed by Trump himself (Judge
William H. Pryor Jr. was appointed by
George W. Bush and Judges
Andrew Brasher and
Britt Grant were appointed by Trump). The court ruled that Cannon lacked equitable jurisdiction to appoint a special master, that Cannon's decision did not meet the stringent standard for the judicial branch to intervene in ongoing investigations by the executive branch, and that the court would not make a special exception for former presidents.
Judge Cannon dismisses case On December 12, 2022, Judge Cannon dismissed Trump's lawsuit for lack of jurisdiction. == Notes ==