Judge Aileen M. Cannon has rejected the motion of DOJ for a partial stay of her prior Order granting Donald Trump’s motion to appoint a Special Master. Judge Cannon also named senior federal Judge Raymond J. Dearie, who both the feds and Trump found acceptable in their submissions, to be the Special Master, and Judge Dearie signed his Declaration Of Special Master.
From the Order denying the motion for a partial Stay:
The Motion primarily seeks a stay of the September 5 Order insofar as it temporarily enjoins, in conjunction with the Special Master’s review of the seized materials, approximately 100 documents “marked as classified (and papers physically attached to them)” [ECF No. 69 p. 2 n.1]. In isolating the described documents from the larger set of seized materials, the Motion effectively asks the Court to accept the following compound premises, neither of which the Court is prepared to adopt hastily without further review by a Special Master. The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them. The second is that Plaintiff has no plausible claim of privilege as to any of these documents [ECF No. 69 p. 7 (categorically asserting that the “classified records at issue in this Motion . . . do not include personal records or potentially privileged communications”)]. The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion….In many respects, the Government’s position thus presupposes the content, designation, and associated interests in materials under its control—yet, as the parties’ competing filings reveal, there are disputes as to the proper designation of the seized materials, the legal implications flowing from those designations, and the intersecting bodies of law permeating those designations [see ECF No. 69 pp. 5, 8–12; ECF No. 84 pp. 11–15; ECF No. 88 pp. 3–7]. Under these circumstances, the Court declines to conduct a subset-by-subset, piecemeal analysis of the seized property, based entirely on the Government’s representations about what is contained in a select portion of the property. See United States v. Melquiades, 394 F. App’x 578, 584 (11th Cir. 2010) (explaining that, to have standing to bring a Rule 41(g) action, a movant must allege “a colorable ownership, possessory or security interest in at least a portion of the [seized] property” (quoting United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1204 (10th Cir. 2001)). Indeed, if the Court were willing to accept the Government’s representations that select portions of the seized materials are—without exception—government property not subject to any privileges, and did not think a special master would serve a meaningful purpose, the Court would have denied Plaintiff’s special master request [see ECF No. 48 p. 3 (arguing that the “appointment of a special master is unnecessary” because the Government had already reviewed the materials and identified personal items and potentially privileged materials)].
Shorter version: The Judge isn’t going to take the feds’ word for anything:
…evenhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice. Based on the nature of this action, the principles of equity require the Court to consider the specific context at issue, and that consideration is inherently impacted by the position formerly held by Plaintiff. The Court thus continues to endeavor to serve the public interest, the principles of civil and criminal procedure, and the principles of equity. And the Court remains firmly of the view that appointment of a special master to conduct a review of the seized materials, accompanied by a temporary injunction to avoid unwarranted use and disclosure of potentially privileged and/or personal materials, is fully consonant with the foregoing principles and with the need to ensure at least the appearance of fairness and integrity under unprecedented circumstances.
The Judge also placed significance on the leaks of information about the supposed documents AFTER the seizure by the FBI – meaning if anyone has been a threat to national security relating to the documents, its the feds:
First, there has been no actual suggestion by the Government of any identifiable emergency or imminent disclosure of classified information arising from Plaintiff’s allegedly unlawful retention of the seized property. Instead, and unfortunately, the unwarranted disclosures that float in the background have been leaks to the media after the underlying seizure [see ECF No. 64 pp. 9–11 n.11].
#TheResistance Twitter Brigade is bigly mad.
If you ever had faith in federal prosecutors, don’t, these are long-time former federal prosecutors who sold their credibility for MSNBC gigs:
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