Initially, I had never heard of a special master; then, upon learning that Michael Cohen had had one appointed in his case, I did not consider it a big deal. Now, after reading AP's story on the decision, the Times' and the order itself I am concerned. Judge Aileen Cannon rejected all of the government's main arguments, seemed to favor personally 45th, used sloppy, upside-down legal reasoning, went beyond the holdings of precedential authority, specifically wrote that 45th, as a former president, is entitled to consideration that a normal citizen was not, a rejection of a foundational principle of the rule of law that all are equal before the law, and wrote that she didn't have the resources to review the evidence seized. The order and especially the language the judge used is troubling. The Justice Department is reviewing the order to determine if to take an appeal.
-the order "enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order."
-"Plaintiff initiated this action with a hybrid motion that seeks independent review of the property seized...Though somewhat convoluted, this filing is procedurally permissible7 and creates an action in equity. See Richey v. Smith, 515 F.2d 1239, 1245 (5th Cir. 1975) (“[A] motion [for return of property] prior to [a] criminal proceeding[]. . . is more properly considered simply a suit in equity rather than one under the Rules of Criminal Procedure.”)...In other words, to entertain Plaintiff’s requests, the Court first must decide to exercise its equitable jurisdiction...Importantly, equitable jurisdiction is reserved for “exceptional” circumstances...Upon full consideration of the parties’ arguments and the exceptional circumstances presented, the Court deems the exercise of equitable jurisdiction over this action to be warranted. ..."
-..."the Court agrees with the Government that, at least based on the record to date, there has not been a compelling showing of callous disregard for Plaintiff’s constitutional rights. This factor cuts against the exercise of equitable jurisdiction.
-"The second factor—whether the movant has an individual interest in and need for the
seized property—weighs in favor of entertaining Plaintiff’s requests. According to the Privilege
Review Team’s Report, the seized materials include medical documents, correspondence related
to taxes, and accounting information...(conceding that Plaintiff “may have a property interest in his personal effects”)]. The Government also has acknowledged that it seized some “[p]ersonal effects without evidentiary value” and, by its own estimation, upwards of 500 pages of material potentially subject to attorney-client privilege...Thus, based on the volume and nature of the seized material,
the Court is satisfied that Plaintiff has an interest in and need for at least a portion of it..."
-"The same reasoning contributes to the Court’s determination that the third factor—risk of
irreparable injury—likewise supports the exercise of jurisdiction. In addition to being deprived of potentially significant personal documents, which alone creates a real harm, Plaintiff faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public.11 Further, Plaintiff is at risk of suffering injury from the Government’s retention and potential use of privileged materials in the course of a process that, thus far...has raised at least some concerns as to its efficacy, even if inadvertently so.
The only thing I can think "improper disclosure of sensitive information to the public" refers to is the initial WaPo report that documents related to nuclear weapons were one object of the search warrant. That is what she means: Footnote 11:"When asked about the dissemination to the media of information relative to the contents of the seized records, Government’s counsel stated that he had no knowledge of any leaks stemming from his team but candidly acknowledged the unfortunate existence of leaks to the press."
"Use" means in a criminal indictment of 45th.
I don't know what the judge means by "a process that...has raised...concerns as to...efficacy." It's all very troubling language.
-"Finally, Plaintiff has claimed injury from the threat of future prosecution and the serious, often indelible stigma associated therewith. As the Richey court wrote, “a wrongful indictment is no laughing matter; it often works a grievous, irreparable injury to the person indicted. The stigma cannot be easily erased. In the public mind, the blot on a man’s escutcheon, resulting from such a public accusation of wrongdoing, is seldom wiped out by a subsequent judgment of not guilty. Frequently, the public remembers the accusation, and still suspects guilt, even after an acquittal. ... although some courts have rejected Richey’s observation as to the harm posed by indictments, Richey remains binding on district courts in the Eleventh Circuit). As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.
This is an instance of the most disturbing of Judge Cannon's written statements. She writes here that the "seizure is in a league of its own", not a future indictment, the seizure itself, the one approved by Magistrate Judge Reinhart. That seizure ought not to have been conducted. She is shielding former presidents from the "stigma" of the search and possible future indictment, carving out an exception for equal application of the law.
-"As to the fourth Richey factor, Plaintiff has persuasively argued that there is no alternative
adequate remedy at law."
-"...the Court takes into account the undeniably unprecedented nature of the search of a former President’s residence...Plaintiff’s stated reliance on the customary cooperation between former and incumbent administrations regarding the ownership and exchange of documents; the power imbalance between the parties; the importance of maintaining institutional trust; and the interest in ensuring the integrity of an orderly process amidst swirling allegations of bias and media leaks. ...the scales tip decidedly in favor of exercising jurisdiction."
Boy oh boy.
This is a terribly written, terribly reasoned, biased order. Justice cannot let this abortion go unchallenged by appeal.
I am only half-way through the order and will pick up at a later time.
