The appeal dynamics hurt Trump
and Judge Cannon's legal career is likely done
The reviews of U.S. Judge Aileen Cannon granting Donald Trump’s request for a “special master” to review the documents seized from his Mar-a-Lago residence and enjoining the U.S. government from continuing much of their investigation until the special master completes his or her work is done are in. And, they are not good.1
Charles Savage, national security columnist for the New York Times, called it “highly problematic.”2
The ruling was riddled with flawed legal reasoning, misguided rationales, and several serious legal mistakes.3
Why would Judge Cannon make such a ridiculously bad ruling all but certain to be reversed on appeal?
The easy answer is the one Harvard Professor Laurence Tribe gave it — “utterly lawless.4”
There is actually a simpler reason for Cannon’s ruling — fear of retribution by Trump’s most neanderthal supporters. Threats, harassment, and actual violence have been done to defend and/or protect Trump. Trump’s raging on Truth Social about the DOJ decision to appeal without his attorneys chiming in legal support thereto5 is a sign of that.
The true answer, without dunning Professor Tribe’s assessment at all, may be one Trump could not comprehend and one most legal experts might not have foreseen— the judge made a problematic, flawed, and error-ridden order that is certain to be reversed intentionally.
When one takes into account that Aileen Cannon is married with two children, it makes a lot of sense. Judge Cannon looks like a complete Trump loyalist (and a judicial dunce), but staves off Trump’s fuming and raging plus avoids death threats, etc.
In an appeal, the appellant has the upper hand — in the sense that they control what is being argued. Appellees must defend the lower court ruling, which is this case, seems fundamentally flawed.
Trump’s legal strategy, on the civil side of his legal problems, has been to appeal narrow issues and fine points of procedure. It’s been fairly successful in that his opponents have run out of steam, determination, and money on a regular basis.
On the non-civil side, that strategy has been a mixed bag at best and largely a losing proposition since January 6th. Prosecutors and congressional investigators rarely run out of steam or determination and money is never an issue.
In addition, it seems clear that the Departments of Justice appeal of Judge Cannon’s ruling will cut a broad swath of issues and hit numerious procedural points critical to how federal investigations are done.6
And while the 11th Circuit has a 6-5 balance of Trump appointees to non-Trump appointees (thanks to Mitch McConnell); the odds of Trump winning here are rather low.
A 3-0 ruling against Trump means he is dead in the water. While a 2-1 reversal may be more likely, any dissent upholding Cannon’s ruling will inure the same legal mocking that Cannon is enduring now.
Since the Supreme Court has already made clear that Donald Trump does not have Executive Privilege7 (which seems to be the bulk of his attorneys' argument); the appellate route for Trump is at best a rocky and treacherous one --- and the man marking the path, Merrick Garland, was an appellate court judge for 24 years.
.
https://www.politico.com/newsletters/playbook/2022/09/07/legal-world-fires-at-judge-cannon-00055134
https://www.nytimes.com/2022/09/05/us/trump-special-master-aileen-cannon.html
https://www.vanityfair.com/news/2022/09/donald-trump-special-master-mar-a-lago-documents-aileen-cannon
Ibid.
https://www.newsweek.com/donald-trump-rages-doj-appeals-special-master-decision-1741317
https://slate.com/news-and-politics/2022/09/mar-a-lago-appeal-snooker-trump-judge-cannon.html
https://www.supremecourt.gov/opinions/21pdf/21a272_9p6b.pdf
The judge has made a ruling that will be blamed upon the 11th Circuit Appeals Court when it is over turned. She is applying for the first open position on SCOTUS during the next Republican Administration. This way she remains in good standing with MAGA Nation while she waits patiently……