DOJ Rightly Appeals Order Against Viewing Mar-A-Lago Documents

Judge Cannon’s Order to halt DOJ’s viewing of Mar-A-Lago documents pending a Special Master’s review of their thousands of pages shocks me. I was taught law by the best law teachers in the US, clerked for an esteemed federal appellate judge, and litigated cases in the US Courts of Appeal nationwide in my long career as an attorney. The judge’s Order and opinion are not grounded in any statute, applicable rule, or precedent. On the contrary, in ordering a special master to review the seized documents and determine whether they were protected by “executive privilege, the Court refused to bow to a Supreme Court case holding in January that Trump cannot claim “executive privilege” because he is no longer in office. Instead, The Judge says the DOJ has “arguably overstated the law.”

In a stunning example of Judge Cannon’s manifest inability to “make a noise like a lawyer” which one of my teachers memorably insisted his students had to do when they stood up to argue, she failed to state any basis whatever for her “overstatement” assertion.  Indeed, she retreated from it by calling it “arguably.”

Still worse, Judge Cannon relies on the Court’s “equitable jurisdiction” and “inherent supervisory authority.” But Article III of the Constitution states that the judicial power shall extend to all cases arising under the Constitution, the Laws of the United States, and Treaties made…under their Authority.” As every well trained lawyer knows, federal courts are not courts of general jurisdiction.  Judge Cannon’s concern for the “stigma” and “reputational harm to the ex-president” are beyond her jurisdiction.

Never mind the great harm her order threatens by delaying the retrieval of highly classified documents. and the express words of the Preservation of Records Act that the United States, not ex-presidents, own presidential records. Never mind that the supervision of the Government’s search of Mar-A-Lago lies in another Court (which authorized it) and to which Judge Cannon should have deferred. I trust that the Court of Appeals, to which this case now goes, will make short shrift of this mockery of a judicial opinion and allow  justice and the preservation of the national defense to proceed.