When Donald Trump flooded the federal bench with judicial appointments, a leading critiquewas that they were Federalist Society clones who favored muscular executive power and rejected what some perceive as meddling by the courts in executive branch affairs.
Judge Aileen Cannon’s recent orders in the fight over the classified records the former president is accused of keeping at Mar-a-Lago have turned that perception on its ear.
A 41-year-old former federal prosecutor and Trump nominee, Cannon issued a series of decisions last week granting unusual requests from the former president in the probe over the storage of files in his home.
The judge appointed a semi-retired jurist to oversee the the review process, ordered that Trump’s attorneys be given copies of everything that was taken and, in the government’s view, effectively halted the investigation by declaring that prosecutors and the FBI could not use the seized records to question any witnesses.
The rulings were widely chastised by a wide array of legal experts,including many from the right, who noted how far out of the conservative judicial mainstream they were. Cannon, during her confirmation process in 2020, had included on her relatively-thin resume that she’d been a member of the right-leaning Federalist Society for a decade-and-a-half, since around the time she entered University of Michigan law school.
However, many lawyers who support sweeping executive authority say despite that affiliation, aspects of Cannon’s directives appear at odds with the prevailing views among the prominent conservative lawyers’ group.
“A robust view of executive power says it’s really not the job of the courts to decide what’s classified or unclassified,” said University of California Berkeley Law Professor John Yoo. “I think most people who agree on the unitary executive also think it’s the president who decides what’s classified and unclassified–the current, incumbent, sitting president.”
Trump is challenging both those principles in his effort to fight back against the unprecedented FBI raid of Mar-a-Lago on Aug. 8 based on a search warrant seeking evidence of illegal retention of classified information, theft of government records and obstruction of justice.
Cannon hasn’t ruled firmly in Trump’sfavor on the substance-yet. But the special master process she has adopted also appears to indulge the possibility that she or the master, Senior U.S. District Court Judge Raymond Dearie, might conclude Trump declassified the records with markings like “Top Secret/SCI” or that he has some right to control their use.
“It’s a bizarre posture,” said one former Trump administration official and attorney close to many Federalist Society leaders. “It’s a waste of time…How is a judge going to determine whether or not something will gravely injure the national interest? That’s not what their competence is.”
To many conservative lawyers, Cannon’s orders-particularly her decision to put a hold on the criminal investigation against Trump while the document review is underway-smack of a deferenceto the former president that targets of national security-related investigations never receive.
“I’ve never, in 35 years, seen an order like that in a criminal case,” said Edward MacMahon Jr., a Virginia-based criminal defense attorney who has represented accused spies and terrorists. “Every espionage client I’ve ever had would really like to have had this judge and get a special master approved and slow down the process. It’d be very helpful.”
The idea that a judge would try to halt a criminal investigation is particularly galling to lawyers who favor a strict separation of powers between the executive, judicial and legislative branches.
“The power to investigate and prosecute rest wholly in the executive branch,” MacMahon said. “The judge has no authority to stick their nose into an investigation and stop the executive branch from doing what it’s doing.”
The Mar-a-Lago resort owned by former President Donald Trump in Palm Beach, Fla., is seen Nov. 21, 2016.
