2 years ago
U.S. District Court Judge Aileen Cannon on Thursday rejected a Justice Department demand to permit federal prosecutors to continue their review of records marked classified that were recovered from Donald Trump’s Mar-a-Lago estate.
In her ruling, Cannon refused to accept DOJ officials’ contention that the records they are attempting to review as part of an ongoing criminal investigation remain highly classified or contain extraordinarily sensitive defense information that could damage national security if released.
"The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion,” the Trump appointee wrote in her 10-page ruling.
Cannon instead appointed Raymond Dearie, a senior judge in Brooklyn, N.Y., to lead an independent review of the seized materials. He was one of two potential special masters proposed by the Trump team and prosecutors said they found him acceptable even though he was not one of their initial picks.
In a signed filing, Dearie accepted the task. Cannon urged him to complete his review by Nov. 30 — more than a month after the Oct. 17 deadline DOJ had asked Cannon to set.
The Justice Department had previously appealed Cannon’s order to appoint a special master and had indicated it would seek relief from the Eleventh Circuit Court of Appeals if she did not agree to delay aspects of her ruling by Thursday night. The Justice Department contended that her decision had harmed national security, preventing intelligence community officials from reviewing the seized records, and was blocking the public’s urgent interest in pursuing evidence of crimes.
The ruling is another setback for federal prosecutors, who have expressed alarm at the extraordinarily sensitive records they found in boxes intermingled with Trump’s personal items in his Mar-a-Lago storage room, as well as some recovered from his office. DOJ has warned that Cannon’s Sept. 5 order — which enjoined the Justice Department from furthering its criminal review of the documents seized by FBI agents from Mar-a-Lago in August — had also disrupted a parallel risk assessment of those documents by the intelligence community. Though Cannon allowed that review to continue, DOJ emphasized that her order had sown confusion within the Executive Branch.
In one nod to the Justice Department, Cannon ordered Trump to shoulder the full cost of Dearie’s review, as well as any staff or associates he hires.
Cannon also clarified certain steps DOJ could take to further its criminal investigation even while the documents remained off-limits, such as “questioning witnesses and obtaining other information about the movement and storage of seized materials, including documents marked as classified, without discussion of their contents.”
She also said that DOJ was free to brief “Congressional leaders with intelligence oversight responsibilities” on the seized materials and from using the seized materials to conduct security assessments.
Cannon’s ruling denying the Justice Department’s stay makes clear she simply did not buy prosecutors’ argument that there was no way to allow an intelligence community review of the national security impact of the presence of the information at Mar-a-Lago to proceed, while temporarily putting the criminal investigation on hold.
“The Government’s submissions, read collectively, do not firmly maintain that the described processes are inextricably intertwined, and instead rely heavily on hypothetical scenarios and generalized explanations that do not establish irreparable injury,” she wrote.
However, the judge also emphasized that she was giving Justice Department personnel some leeway to participate in the national security assessment even as she maintains her order blocking the use of any of the documents in the criminal probe.
“To the extent that the Security Assessments truly are, in fact, inextricable from criminal investigative use of the seized materials, the Court makes clear that the September 5 Order does not enjoin the Government from taking actions necessary for the Security Assessments,” she wrote.
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