The latest directive, for all its flaws, gives prosecutors a path to prompt access to the classified files they need for their investigation.
Judge Aileen Cannon has rejected the Justice Department’s proposal of a compromise that would have avoided an appeal of her order appointing a special master to review documents seized from former president Donald Trump’s Mar-a-Lago resort by the FBI.
Judge Cannon’s ten-page order was issued on Thursday evening. That’s because prosecutors had vowed to seek redress in the Eleventh Circuit Court of Appeals if she had not partially reversed herself by today. Nevertheless, I suspect the Justice Department is having second thoughts about appealing. Cannon’s latest directive, for all its flaws, gives prosecutors a path to prompt access to the seized classified documents they need to proceed with their investigation — whereas even a successful appeal could entail weeks or months of delay.
In her original September 5 ruling, Cannon (a) ordered that all seizures (reportedly, over 11,000 documents and items) be reviewed by a special master to determine whether they are privileged; and (b) barred the government from using any of the seizures in its criminal investigation until this special-master review was completed. Last Thursday, the Justice Department countered that, while it believes Cannon’s ruling was entirely wrong, it might be willing to forego an appeal and live with the special-master review if Cannon modified her directive by excluding the small subset of approximately 100 documents bearing classified markings from both the special-master review and the order suspending the government’s use of seized documents in its ongoing criminal probe.
In last night’s order, Cannon declined to take either of those steps. But she offered an enticing compromise solution of her own — one in which DOJ would accept the special master and potentially get a quick resolution on the classified documents. Directly addressing the government’s concerns about damage to its investigation, Cannon wrote:
The Court will direct the Special Master to prioritize review of the approximately 100 documents marked classified (and papers physically attached thereto), and thereafter consider prompt adjustments to the Court’s Orders as necessary.
In tandem with this directive, Cannon has appointed senior district judge Raymond J. Dearie, of the U.S. District Court for the Eastern District of New York (EDNY), to serve as special master. (Judge Dearie, 78, is not retired, as one of my priors posts suggested; he took senior status and its more limited docket over a decade ago, and some reporting has indicated that he plans to retire at the end of this year.)
Though Judge Dearie was initially proposed by former president Trump’s lawyers, the Justice Department quickly agreed that he was well qualified for the assignment. No surprise there: Prior to his appointment to the EDNY bench by President Reagan, Judge Dearie was the U.S. attorney — the Justice Department’s chief prosecutor in the district. Moreover, one of Dearie’s most recent assignments, after serving as the EDNY’s chief judge for four years, was his appointment by Chief Justice John Roberts to a seven-year stint on the Foreign Intelligence Surveillance Court — a term that ended in 2019. In that capacity, Dearie was not only steeped in highly classified intelligence; he was schooled in and had to abide by the government’s exacting rules on the handling and storage of national-defense secrets.