Judge: Mar-a-Lago Raid in ‘A League of Its Own’

The decision of a federal judge to establish a special master to oversee handling of the documents the FBI seized at Mar-a-Lago is not only a legal victory for President Trump. It is a devastating declaration of no confidence in Attorney General Garland and the FBI. Not only did the judge back setting up a special master. She enjoined the government from “reviewing and using the seized materials for investigative purposes” — until she says so.Good for Judge Aileen Cannon. We doubt the decision stemmed from only the fact that Mr. Trump’s lawyers out-argued the Justice Department. Judge Cannon made it clear that she was “mindful,” to use her word, “of the need to ensure at least the appearance of fairness and integrity” and also of the “extraordinary circumstances.” This was a rebuke to General Garland’s mantra that no one is above the law.Here is a judge who also understands that neither is anyone, to use our own phrase over the years, “beneath the law,” meaning undeserving of due process. Judge Cannon clearly gets that the search’s “unprecedented nature” calls for a pause to allow for neutral, third-party review to ensure a just process with adequate safeguards” is implemented. There is nothing to be lost and everything to be gained by such an approach.Judge Cannon shows an all-too-rare appreciation of the fact that Mr. Trump held the highest office in the land. She brushed back the DOJ for its position that executive privilege — as distinct from attorney-client privilege — is beyond the reach of a special master. That, she says, “arguably overstates the law.” Mr. Trump’s lawyers have argued that the reality that he was president is not irrelevant to the journey of the documents in question. Amid the keening of a press for whom Mr. Trump is always presumed guilty, Judge Cannon wants to restrain a rush to judgment — and to suggest that justice is not arrived at via railroading: “Even if any assertion of executive privilege by plaintiff ultimately fails in this context, that possibility, even if likely, does not negate a former president’s ability to raise the privilege as an initial matter.” All this is no doubt why the DOJ argued so forcefully against a special master. It understood that it would amount to a vote of no confidence in the DOJ. And why major Democratic lawyers have been so frantic. Professor Laurence Tribe went so far in a tweet as to rank Judge Cannon’s decision with decisions like Dred Scott, denying black persons’ citizenship, or Korematsu, which sent Japanese Americans to camps. What a contrast to Judge Cannon’s decision, which, after the January 6 committee’s rush to attaint Mr. Trump and to agitate for a prosecution of the former president, strikes a note of judiciousness and reason. In response, Mr. Garland’s aides are saying only that they are “examining the opinion and will consider appropriate next steps in the ongoing litigation.” It may be that they will appeal — or that they will prefer playing a longer game. Meantime, we’re reminded of George Orwell’s quip that “to see what is in front of one’s nose needs a constant struggle.” Judge Cannon appears to have gained the upper hand in that battle, at least for now. She understands that as a “function of” Mr. Trump’s “former position as President of the United States, the stigma associated with the subject seizure is in a league of its own.” Addressing that is one of the parts of wisdom.

Judge: Mar-a-Lago Raid in ‘A League of Its Own’

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