Three months ago, U.S. District Judge Aileen Cannon made the controversial call to appoint an independent expert to examine documents — including classified government materials — seized by FBI agents from former President Donald Trump’s Palm Beach residence.
She did so despite expressing initial doubts in her own ruling about intervening in the politically charged case.
In a scathing ruling issued Thursday night, a federal appellate court in Atlanta found she should have heeded her first legal concerns. A three-judge panel, all Republican-appointees like Cannon, reversed her decision to name a “special master” because she had no authority to do so and effectively killed the case as legal experts consider a potential appeal unlikely to succeed.
The ruling from the 11th U.S. Circuit Court of Appeals, several South Florida and other legal experts said, left little room for argument.
“The key point is that Judge Cannon had no jurisdiction to do anything here,” said Mark Schnapp, a former federal prosecutor and longtime Miami criminal defense attorney. “She tried to assert equitable jurisdiction [to appoint the special master], but her own opinion showed why her analysis was defective.
“Her opinion got ripped to shreds by the Eleventh Circuit Court,” he said.
Read More: Trump wanted a special master. So did a businessman. The judge treated them differently
In her Sept. 5 order, Cannon noted that she agreed with Justice Department lawyers that FBI agents carrying a search warrant for Trump’s Mar-a-Lago estate had not shown a “callous disregard for [his] constitutional rights,” concluding that “this factor cuts against the exercise of equitable jurisdiction.”
But rather than follow her own analysis, Cannon extended Trump protections not provided to ordinary citizens by appointing a special master to review the FBI’s evidence, citing the “unprecedented circumstances” of the U.S. government raiding a former president’s home.
Cannon, who was nominated by Trump and joined the federal bench in South Florida at the end of his term in 2020, assumed jurisdiction in the Justice Department’s investigation of his alleged mishandling of classified documents and possible national security violations. She appointed a New York special master to view about 100 classified records and thousands of other personal and presidential records taken from Trump’s home on Aug. 8 to determine if any contained privileged correspondence with lawyers. Cannon refused to let a Justice Department “filter team” of agents and prosecutors do the job.
Her decision, in response to a civil lawsuit seeking to have certain privileged documents returned to Trump, slowed down the FBI’s criminal probe of the former president. The Justice Department appealed her ruling and has now scored a major legal victory, allowing its investigation of the classified documents case to move forward at full throttle.
The impact is immediate: Cannon’s decision will not only be thrown out based on her lack of jurisdiction but the special master’s still-unfinished review will be shut down, bringing Trump’s lawsuit to a dead end.
While the former president’s lawyers are expected to pursue a counter appeal, experts say it will likely fall on deaf ears given the blunt appellate decision: “This appeal requires us to consider whether the district court had jurisdiction to block the United States from using lawfully seized records in a criminal investigation. The answer is no.”
Legal experts in South Florida agreed, saying Cannon should have rejected Trump’s lawsuit seeking to thwart the Justice Department’s investigation after the FBI obtained a search warrant from a magistrate judge who found probable cause of a crime over his storing of classified and other presidential documents at the Mar-a-Lago club and residence after he left the White House in January 2021.
“The bottom line is, he didn’t have presidential privilege anymore because he was no longer president,” said retired career federal prosecutor Dick Gregorie. “She had no business sticking her nose in it, and they slammed her for it.”
Carl Tobias, a University of Richmond law professor, echoed that view, saying the Atlanta appellate judges “ripped her [decision] apart” during oral arguments and so the outcome “was not surprising.”
Tobias said that Cannon never “justified” her decision to invoke jurisdiction in Trump’s case, saying her conclusion to appoint a special master was “wrong.” But he added: “I don’t think she’s acting in bad faith. She’s a junior judge acting in isolation” in Fort Pierce.” That’s where Cannon was assigned when she joined the federal bench in the Southern District of Florida.
The appellate panel’s ruling came from three Republican-appointed judges, including two by Trump. It also marks the second time that the Atlanta court has dealt a major blow to Cannon in her handling of the high-profile case. After her initial decision to appoint the special master, the appellate court ruled that the outside expert, New York U.S. District Judge Raymond Dearie, could not review the classified documents taken from Mar-a-Lago, and that they should be returned immediately to U.S. investigators.
In a 21-page ruling issued late Thursday, the judges — Chief Judge William H. Pryor, Britt Grant and Andrew L. Brasher — described the Trump legal team’s arguments as a “sideshow,” highlighting that his lawyers never made the fundamental point that FBI agents showed a “callous disregard” for the former president’s constitutional rights. The appellate panel found that the “callous disregard standard has not been met here, and no one argues otherwise” — including the presiding judge, Cannon.
“There is no record evidence that the government exceeded the scope of the warrant — which, it bears repeating, was authorized by a [West Palm Beach] magistrate judge’s finding of probable cause [of a crime],” the panel wrote. “And yet again, [Trump’s] argument would apply universally; presumably any subject of a search warrant would like all of his property back before the government has a chance to use it.”
The panel said that the proper time for Trump or any other suspect in a criminal investigation to challenge the government’s seizure of property would be after an indictment has been returned by a grand jury. The grand jury in Washington, D.C., is currently reviewing evidence and hearing witness testimony in the Mar-a-Lago documents probe, according to published reports. U.S. Attorney General Merrick Garland recently appointed a special prosecutor, Jack Smith, to oversee the investigation., which followed Trump’s announcement that he is running for president in 2024.
The Atlanta appellate judges noted that it is “indeed extraordinary for a warrant to be executed at the home of a former president — but not in a way that affects our legal analysis or otherwise gives the judiciary license to interfere in an ongoing investigation.”
Citing a legal test on jurisdiction that has been in place for nearly 50 years, the three-judge panel wrote that “its limits apply no matter who the government is investigating.”
“The law is clear,” the panel concluded. “We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of a warrant. Nor can we write a rule that allows only former presidents to do so.“
Jon Sale, a prominent white-collar defense lawyer in Miami who had been asked by Trump to represent him in the Mar-a-Lago documents case, said the appellate court’s message is unambiguous.
“The court’s ruling makes it clear that no person who is the subject of a search warrant, including a former president, is above the law,” said Sale, who served as a Watergate federal prosecutor during the Nixon administration scandal.
But he added: “At the same time, under our Constitution, all people who are the subjects of search warrants, including former presidents, are presumed innocent during the course of the investigation.”
This story was originally published December 02, 2022 1:00 PM.
