Judge Aileen Cannon’s two rulings in the Mar-a-Lago affair offer a master class in illustrating how a young and ideologically-driven judge can badly bungle important issues of law and public policy and distort the proper role of courts in protecting state secrets and supervising criminal investigations. The Justice Department, wisely, is appealing.
The catalogue of errors and abuses is too long for a single column, so we touch only on the low points.
It is important to note that Judge Cannon received her appointment when she barely passed the American Bar Association’s minimum length of experience following law school graduation to be considered even minimally “qualified” for the federal bench.
More significantly, she appears to owe her appointment to her membership in the Federalist Society, the virtually exclusive source of Trump’s judicial selections.
Her approach to this dispute between the United States government and the former president has been shaped by a strange blend of the Federalist Society’s ideological influence on her career and a MAGA-cult-like belief that the former president should enjoy almost royal prerogatives.
It was no surprise, therefore, that Trump’s lawyers carefully shopped for her when they chose to file their unprecedented application in her remote courthouse in Fort Pierce, Florida, rather than the one down the street in West Palm beach.
The sad story of her management of the controversy over the 11,000 government documents that Trump unlawfully spirited away to his beachfront club began at the threshold of her courthouse. Immediately after Trump’s lawyers filed what should have been a desperately unsuccessful plea to hamstring the government’s recovery and examination of its documents, including highly classified state secrets, she announced that she was “inclined” to grant the request and appoint a special master and to put the criminal investigation on hold.
She expressed that view, even though the request was unprecedented, and she had not bothered to wait to hear from the government before she announced her “inclination.”
A critical hallmark of the judicial process is that responsible judges listen to both sides before making up their minds. As became evident from her initial, formal ruling on Labor Day and from her refusal on Thursday to modify even the most egregious aspects of that ruling, she lacks the wisdom to admit that she got it wrong – and seriously wrong.
Two categories of error are particularly plain and severe. First is her treatment of the issue of “executive privilege.”
Although there are reasons to question whether the original rationale for recognizing executive privilege as an implied presidential prerogative was persuasive at the time and retains validity today, the US supreme court has treated some documents reflecting communications with a president as subject to such presumptive confidentiality. In insisting that the former president can invoke this privilege to keep other officials of the executive branch from reviewing the materials, until her special master reviews all 11,000 documents, Judge Cannon badly misunderstood the crucial limits on any such privilege.
At the outset, this is a privilege that applies only to certain, limited types of presidential communications and prohibits disclosure only to persons outside the executive branch, such as to Congress, to courts, or to the public. That limited scope has been clear since the 1974 decision in United States v Nixon, which one of us (Lacovara) argued and which for the first time recognized existence of a limited executive privilege.
No prior case or other authority has treated “executive” privilege as a basis for concealing information from executive branch officials conducting executive functions, here the Justice Department’s investigation and potential prosecution of federal crimes relating to the mishandling of state secrets and presidential records.
Moreover, Judge Cannon’s wholesale assumption that all 11,000 documents are presumptively within a narrow privilege for confidential presidential communications is unfounded. Her puzzling assertion that “the record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials” comes from thin air: nothing in the public record identifies the existence of any such dispute, factual or legal.
In addition, in connection with the request by the House Select January 6 Committee’s work, the incumbent president, Joe Biden, made the determination on behalf of the executive branch that it is in the national interest not to cloak even presumptively privileged presidential communications with secrecy, when relevant to finding the truth about potentially criminal misconduct. The supreme court decision first recognizing executive privilege made that determination inescapable.
Next, one core principle established in the Nixon Tapes case is that any presumptive privilege for even the narrow category of presidential communication must give way to the overarching public interest in investigating and prosecuting federal crimes. For Judge Cannon to ignore that unanimous holding and to hamstring the pending federal criminal probe, based on a sweeping but bogus claim of executive privilege, is egregious.
The second area of abuse concerns the handling of documents marked with classification ratings, many of them at the highest levels of secrecy, involving either signals intelligence or human sources. Judge Cannon is ordering that these documents be withheld from the prosecutors. This is a particularly bizarre and muddled diktat that not only intrudes, in a manner impossible to square with the separation of powers, into the executive branch’s responsibility to investigate crimes but also distorts the executive branch’s responsibility for protecting state secrets.
Trump’s lawyers never argued in court the dubious assertion that Trump has made in political tweets – that he had somehow personally “declassified” any of the highly sensitive documents retrieved from Mar-a-Lago or missing from classification folders there. Despite Trump’s unsupported assertion, it is simply not true that he had “absolute authority” to declassify documents. Under federal statutes and executive orders that bind even the president, there is an elaborate set of conditions that must be met before anyone, including the president, may lawfully declassify documents.
By law, documents relating to nuclear secrets, signals intelligence, and human sources are entitled to rigorous levels of protection, even from access by many senior government officials.
Nevertheless, Judge Cannon apparently relied on Trump’s public tweets to insert and then indulge an argument that even his lawyers lacked the temerity to assert. Compounding her misunderstanding of her proper role as a judge, she expressed unwillingness to “trust” the executive branch’s classification of those documents, despite the statutory regime that expressly entrusts the classification of state secrets to the defense and intelligence agencies. Instead, she decided that her special master, a retired federal judge, would decide whether the materials were properly classified – subject presumably to her own review.
This is a dangerous arrogation of judicial control over judgments assigned by the Constitution and federal statutes to the executive branch official responsible for national security. More than 70 years ago, the supreme court warned judges to be extremely cautious about attempting to conduct their own review of documents containing information relating to the national defense.
Then in the Nixon Tapes case the supreme court carefully carved out such documents from the limited authority of courts to overrule otherwise legitimate claims of executive privilege for presidential communications, concluding that courts have no power to contest the executive branches’ “claim of need to protect military, diplomatic, or sensitive national security secrets,” as the Justice Department has asserted here. The court reiterated the well-settled principle that it “would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.”
Twice this year the supreme court reaffirmed this doctrine that determination whether information constitutes “state secrets” is vested exclusively in the designated executive branch officials, and courts may not legitimately second-guess that determination.
Yet that is precisely what Judge Cannon is seeking to do in her zeal to protect what she views as the ex-president’s prerogatives, defying established law and usurping responsibilities that belong elsewhere.
This is what happens when presidents pursue a policy of appointing inexperienced ideologues to lifetime judgeships. The country is paying a very high price for accepting nominees like Judge Cannon.
Laurence H Tribe is Carl M. Loeb University Professor of constitutional law emeritus at Harvard Law School
Phillip Allen Lacovara was deputy solicitor general of the United States, counsel to the Watergate special prosecutor, and President of the District of Columbia Bar
