Donald Trump is a very special guy. That is the essence of the legal ruling handed down by Judge Aileen Cannon over the Labor Day weekend. Cannon, who was appointed to a federal district court judgeship in Florida in 2020 by—you guessed it—former President Donald Trump, ordered the use of a special master to review documents seized by the Justice Department from Mar-a-Lago last month. She also barred federal investigators from “[using] the seized materials for investigative purposes,” which may halt prosecutors’ work for the time being.
This is not how things normally work. If federal agents had found a similar trove of national secrets in the home of anyone else in America, that person would be figuratively strapped to a rocket and fired into the sun. If that person then asked a federal judge to effectively suspend a Justice Department investigation into their apparently illegal conduct, they would be laughed out of court. But Donald Trump is not a normal American who falls under the normal rule of law. He is special. He is different.
I’ve written before how Trump has had trouble finding high-quality lawyers for his many legal troubles, especially recently. I failed to consider how little that matters if he finds a judge who will do the heavy lifting for him. The motion that Trump initially filed to Cannon two weeks ago did not meet basic thresholds for legal argumentation; Cannon obliquely noted in her order on Monday that she had “ordered [Trump] to elaborate on the basis for the Court’s jurisdiction and the relief sought,” which is a polite way of telling him and his lawyers to actually make an intelligible argument for her to rule upon.
Trump faced a few obstacles from the start. For one, there was already a federal magistrate judge assigned to this case. Rather than make his long-shot argument to him, however, Trump shopped around for a more friendly judge to hear it. He chose to file his motion challenging the search before the Fort Pierce division of the Southern District of Florida, which conveniently only had a single federal judge assigned to it: Judge Aileen Cannon. As The Daily Beast’s Jose Pagliery noted on Tuesday, Trump had previously tried—and been reprimanded for trying—to engineer cases to appear before this specific judge.
After Monday’s order, it’s understandable why. Cannon appears to have bent over backward to give Trump what he wanted. The former president sought a special master to review the documents for two things: attorney-client privilege and executive privilege. Appointing a special master for attorney-client privilege isn’t unusual, but it is typically more common and more justified when law enforcement searches an attorney’s office or a law firm for evidence. A federal court readily appointed one in 2018 when federal agents searched the office of Michael Cohen, Trump’s former longtime legal fixer.
Appointing a special master for executive privilege claims is another story. Executive privilege is a murky area of constitutional law, but it usually relies on the premise that the person invoking it is actually the president of the United States. Trump is no longer the president; the current holder of that office is President Joe Biden. Cannon gets around this small obstacle by noting that the Supreme Court once briefly noted, as an aside during a records dispute between Richard Nixon and the General Services Administration, that former presidents were not totally barred from raising executive privilege claims.
There are a few hazards here. One is that executive privilege typically protects internal presidential records from Congress and the courts; it is unclear how executive privilege would be violated by letting the Justice Department, which is part of the executive branch, review them. Another is that other executive branch agencies like the National Archives have concluded that executive privilege does not apply here. Cannon gets around this by noting in a footnote that Trump “has not formally asserted executive privilege as to any specific materials, nor has the incumbent President upheld or withdrawn such an assertion.” In other words, since Trump hasn’t specifically claimed executive privilege yet, Biden hasn’t (and can’t) challenge it.
Stepping back even further, there is also the fundamental principle of a different Nixon-related case, United States v. Nixon, in which the Supreme Court unanimously ruled that a sitting president could not invoke executive privilege to hide evidence of a crime from a grand jury. If that was the case then, it is unclear why a former president should be able to invoke it now.
Then again, Trump’s approach to the American legal system always comes down to two propositions. First, he consistently argues that he is above the law. Naturally, Trump and his lawyers are not quite foolish enough to argue this in so many words. But they come as close as they can to stating it. While president, Trump asserted at various times that he cannot be subpoenaed by Congress, either as part of its oversight powers or for impeachment proceedings against him; that he cannot face civil lawsuits while in office; that he cannot be subjected to state criminal investigations for acts that took place before his inauguration; and that he cannot be indicted by the Justice Department while serving as president. From time to time, he even asserted that he could pardon himself for any crimes he commits while in office, which would theoretically preclude anyone prosecuting him after he leaves office. (He ultimately did not.)
These sweeping arguments for impunity are often unpersuasive to state and federal judges when they have been raised. The Supreme Court broadly rejected his efforts to avoid an investigation by the Manhattan District Attorney’s Office while he was president in 2020 and to keep records from the January 6 committee last year. And while serving on a lower federal court, Justice Ketanji Brown Jackson famously rejected a former Trump White House counsel’s invocation of executive privilege during Trump’s first impeachment by noting that “presidents are not kings.”
That brings us to the other fundamental principle of Trump’s legal arguments: that any prosecutor, committee, or judge that investigates or rules against him is biased, illegitimate, and corrupt. In 2016, when fighting the Trump University fraud litigation, he claimed that the Chicago-born federal judge overseeing the case could not be trusted to handle it fairly because he was “a Mexican.” In 2019, he threatened to retaliate in vague terms against the Ninth Circuit Court of Appeals for blocking one of his immigration policies and denounced the judge who had ruled against him as an “Obama judge.”
That prompted an exceedingly rare rebuke by Chief Justice John Roberts, who publicly declared that there are no “Obama judges” or “Trump judges.” (Trump’s opinion of Roberts is similarly low, for what’s it’s worth.) Trump used even more caustic terms to describe federal agents and federal lawmakers who scrutinized him over the years, whether they were part of the two impeachments, or special counsel Robert Mueller’s Russia investigation, or any of the sundry congressional probes into the Trump administration. Everyone who treats Trump well is good and constitutional; everyone who acts against him is bad and crooked.
It is bad when a president, even a former president, holds such lawless and autocratic views. It is even worse when a federal judge goes out of her way to support them. In perhaps the strangest moment of her order, Cannon observes in a footnote that the Presidential Records Act gives exclusive jurisdiction to the federal District Court in the District of Columbia to hear presidential records–related disputes—and then went on to exercise jurisdiction in the case anyway. For this “Trump judge,” and maybe others, there is no law—there is only Trump.
