Norman L. Eisen and Fred Wertheimer write:
On Aug. 27, Judge Aileen Cannon issued a preliminary order indicating that she was inclined to grant Donald Trump’s request that she appoint a special master to review the documents that the government seized during its court-approved search of Mar-a-Lago last month. So her order on Monday enjoining the Department of Justice from using those materials in its ongoing criminal investigation until a special master completes his or her review was in some ways not a surprise. Now that we know the grounds for Judge Cannon’s view and the scope of her order, though, we must respectfully but strongly disagree.
First, at the heart of the order is the assumption that Trump could have a right to the return of presidential records under Federal Rule of Criminal Procedure 41(g), which permits the return of property seized by an unlawful search and seizure. Presidential records are, by the clear terms of the Presidential Records Act, the property of the U.S. government—not the former president.
The order ignores the impossibility of returning these documents to Trump under these circumstances: There are more than 103 classified documents, including 18 designated as Top Secret—signifying that their mishandling risks exceptionally grave damage to national security. And that’s before factoring in other indicia of danger, like the recent revelation that investigators seized 48 empty folders with classified markings, which raises the question: Where are the documents? It is difficult to contemplate any basis for the return of even a single classified document under any circumstances—and certainly while the contents of these folders are unaccounted for.
Indeed, Judge Cannon herself acknowledges the danger to national security posed by Trump’s request to the extent it would stop the Office of the Director of National Intelligence’s ongoing national security review. The order enjoins the government from further review and use of these documents for investigative purposes, not for purposes of intelligence classification and national security assessments. In this way, the order is inconsistent; carving out the national security assessment from the injunction undercuts the assumption that Trump may be entitled to the return of these documents, as well as the premise that the ongoing criminal investigation must be halted. How can we contemplate the possible return of documents that could cost the lives of American agents to someone who has already treated these records with such neglect?
Further, how can national security officials make determinations on how best to protect the nation if criminal investigators are enjoined from taking investigative steps that may also serve that very purpose? Indeed, some government officials would typically be part of both of these reviews—such as the Attorney General himself. The order’s false dichotomy does not take account of those realities that are needed to protect us all. [Continue reading…]