On Thursday, U.S. District Judge Aileen Cannon issued an order overturning the requirements set forth by special master Judge Raymond Dearie for his review of the documents seized at Mar-a-Lago. It is beyond startling. It not only places highly unusual limitations on the respected special master whom Cannon and all parties agreed upon to independently review Donald Trump’s claims challenging the seizure, it also has the potential to hobble the entire review process—and could even end Dearie’s and/or Cannon’s role in it.
To understand why, recall the specific requirements that Dearie imposed and Cannon nullified. Finding that Trump’s lawyers could “not have it both ways,” Dearie ordered them to address key (and surely false) search-related claims made by the former president, among other matters. This included ordering Trump’s lawyers to provide evidentiary support for the claim that any of the seized documents marked classified had been unclassified, to provide any evidence that the Department of Justice incorrectly described any of the documents, and to submit any evidence that any of the documents in question were not in Trump’s possession.
Since there is no evidentiary basis for any of these claims, Trump’s lawyers were in a very difficult spot. They had four options. The first was to admit that there is no such evidence, making it impossible to continue representing the former president while salvaging their reputations. The second was to refuse to comply with the order and face contempt of court. Third, they could resign from representing the former president based on the recusal mandates of American Bar Association model rule 3.3,* which bars counsel from making any statement to a court that the lawyer “knows to be false.”* The recusal mandate goes beyond actual knowledge to include anything a lawyer “reasonably believes is false,” or that may be inferred from the circumstances to be false. The fourth and final option was to contest Dearie’s order with Cannon. That is the approach they took, and it paid off for both the lawyers and their client on Thursday. This victory for Trump will force the Department of Justice to make a tough tactical decision about the best path forward. All options will be on the table.
At this moment, DOJ probably cannot yet appeal, because doing so would be legally premature. That gives its attorneys time to plot their next move. Given the extreme and one-sided rulings Cannon has already made, DOJ need not fear making her more hostile than she has already shown herself to be, so the door to aggressive countermoves is wide open. One such choice would be to file a motion to remove Cannon from the matter entirely, arguing that her opinions have demonstrated a level of bias that cannot be tolerated—and further, that her continued oversight of the matter is a threat to national security. The 11th U.S. Circuit Court of Appeals has already filed a stinging opinion that contains ample criticism of Cannon to quote in support. Appeals courts are hesitant to remove judges from a case, but here, there is a clear record of questionable decisions that have stymied an extremely significant criminal investigation and, per DOJ, undermined national security. Under these unusual circumstances, reassignment might well be an appropriate solution.
Even if the DOJ does not ask the 11th Circuit to remove Cannon from the case, she may still face consequences from her order yesterday. The judge must now confront the prospect that special master Dearie might resign his post, concluding that he cannot fairly and accurately perform his role without the information he has demanded. Cannon has shredded his plan to do the job he was appointed to do and imposed on him a regimen he surely does not want to follow. She has made it abundantly clear that she remains in the driver’s seat and will impose her will on the proceedings. No one could blame Dearie for stepping down in the face of the restrictions imposed. Should the special master resign, the process comes to a halt. Naming a suitable replacement under these circumstances will be a real challenge. Who would want to do this job under these circumstances?
We can be sure that the DOJ will not just sit back and allow the present situation to continue. Especially if the special master does resign, as DOJ takes aim at the problems she has created, Cannon will be firmly in their sights.
Correction, Oct. 3, 2022: This article originally misidentified the ABA’s rule 3.3 as rule 33.