Jurisprudence

Judge Aileen Cannon’s Reign of Madness Is Over

Here’s why the 11th Circuit, including two Trump judges, ruled in favor of the Department of Justice.

Donald Trump holding a golf club and wearing a MAGA hat, looking pretty terrible.
Donald Trump golfs at Trump National Golf Club on September 13, 2022 in Sterling, Virginia. Win McNamee/Getty Images

Judge Aileen Cannon suffered a rout on Wednesday night when the 11th U.S. Circuit Court of Appeals shredded every aspect of her decision that halted the criminal investigation into Donald Trump. The three-judge panel, which included two fellow Trump nominees, gave the Justice Department a complete victory, identifying multiple grievous errors in Cannon’s reasoning. Technically, the 11th Circuit ruled against Trump, but much of its reasoning reads like a ruling against Cannon herself—a vehement repudiation of her sloppy effort to run interference for the president who appointed her. Most notably, the panel emphasized the most dangerous consequence in Cannon’s decision: In twisting the law for Trump, the decision created a startling and unlawful threat to national security.

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Cannon’s decision was so sweeping that this element of the case has been easy to miss. But national security experts like Slate’s Fred Kaplan have been ringing the alarm from the start, pointing out how Cannon’s injunction kneecapped federal law enforcement and potentially jeopardized people’s lives. The reason why is simple: In her first ruling, the judge prohibited the government from “further review and use of any of the materials” seized from Mar-a-Lago “for criminal investigative purposes,” including about 100 classified documents. She added, however, that the government could “continue to review and use the materials seized for purposes of intelligence classification and national security assessments.”

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This distinction is utterly impractical, even fantastical. It is impossible to abide by. Here’s the problem: The FBI and Justice Department officials conducting the criminal investigation into Trump are working on the damage assessment, as well. These two tasks have been intertwined from the start. As Norm Eisen and Fred Wertheimer explained in Slate, those officials assessing the damage caused by improper handling of classified materials must communicate with officials considering possible criminal penalties. In some cases, the same individuals will participate in both the damage assessment and the criminal case. These overlapping roles make perfect sense: The criminal case against Trump will rest, in part, on the damage that his behavior inflicted on national security. So by halting the Justice Department’s criminal investigation, Cannon effectively halted its damage assessment, too. Her roadblock has hamstrung the intelligence community’s efforts to determine whether Trump’s illicit seizure of classified documents imperiled the nation’s security by compromising American spies still working undercover.

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The Justice Department explained all this to Cannon, who apparently didn’t care enough to change her ruling. Luckily, the 11th Circuit did. It relied heavily on a declaration submitted by Alan E. Kohler, Jr., the Assistant Director of the Counterintelligence Division of the FBI. The appeals court credited Kohler’s explanation that “as part of a classification review to assess the existence and extent of damage” to national security, the FBI “needed to access evidence and disseminate it to other intelligence agencies to assess potential harm.” Consider a few of the government’s most pressing concerns: Who accessed the classified material? What portion of it was compromised? Are there any other  classified papers still unaccounted for?

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These questions are equally relevant to the intelligence community and to the criminal investigators. But as the 11th Circuit pointed out, under Cannon’s ruling, government officials cannot answer them without risking “contempt of court.” The consequence will be a “chilling” of their “national-security duties,” since those responsibilities are “inextricably intertwined” with the criminal investigation.

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The 11th Circuit did not spell out how, exactly, Trump’s seizure of classified documents may have harmed the security of the United States. That reticence is understandable, since many key details of the case remain secret. And yet, an unredacted portion of the warrant that authorized the Mar-a-Lago search showed that these records included information provided by spies. Some documents were marked HCS, or Human Intelligence Control System, which indicates that they may contain the identity of undercover informants. This is a problem for more reasons than the obvious: Just last year, the CIA warned that a shocking number of its informants had been arrested and killed by foreign nations. The agency also noted its struggle to recruit new informants. It is hard to imagine that anyone would want to sign up if they knew that a former president could keep documents revealing their identity in an unlocked room at his resort—then persuade a federal judge to prevent the FBI from ascertaining how much danger they’re in because of the president’s negligence.

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Here, then, is the chief distinction between Cannon and the two Trump nominees who ruled against her, Andrew Brasher and Britt Grant. All three judges are extraordinarily conservative. All three might even bend the rules to favor Trump. But Brasher and Grant were not willing to fully break the rules, at least when doing so could subvert the U.S. government’s ability to protect itself from foreign threats. Cannon’s conduct places her in a separate class of hard-right judges—you might call them ultra-MAGA—who will do anything to further their political and ideological agenda. There’s an analogy here to the conservative judges who ordered the Navy to deploy unvaccinated SEALs and attempted to keep an insubordinate anti-vaxxer in command of a naval warship. There is no limit to the lunacy these judges will unleash in furtherance of their agenda. And so the somewhat less radical adults in the room must step in. Much like Justice Brett Kavanaugh shot down conservative judges who inserted themselves into the Navy’s chain of command, Brasher and Grant had to stop Cannon from wresting control over the FBI.

If Trump dares appeal the 11th Circuit’s decision to the Supreme Court, he will lose, perhaps unanimously. The appeals court made it abundantly clear that judicial interference in the government’s review of these classified documents crossed the line into lawlessness. Cannon’s wildly disruptive reign of madness is finally drawing to a close.

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