Judge Aileen Cannon’s intrusive and unjustifiable reign over the Justice Department’s criminal investigation into Donald Trump is over.
On Thursday, the 11th U.S. Circuit Court of Appeals ruled that Cannon had no jurisdiction to hear Trump’s complaint in the first place. Its decision means that Cannon’s orders are void, and everything she had done—including the appointment and oversight of a special master—must be undone. The special master must be dismissed, and Cannon must relinquish all control over this dispute. Any other outcome, the court explained, would constitute “a radical reordering of our caselaw” that violates “bedrock separation-of-powers limitations.” It is a complete victory for the Justice Department and a vindication of the principle that judges may not rewrite the law to run interference for the president who appointed them.
From the start, Cannon’s efforts to seize control over the DOJ’s probe were entirely lawless, in the very literal sense that she had no lawful justification to intervene.
Recall how this case began: In August, federal investigators executed a search warrant to seize classified documents that Trump stored at his residence in Mar-a-Lago. A federal magistrate judge authorized the warrant, which articulated probable cause of illegal storage, and explicitly described the areas to be searched—precisely what the Fourth Amendment requires. Trump, infuriated by the search (which he dubbed a “raid”), contested the warrant in a different federal court, where he stood a good chance of securing a judge whom he appointed. Sure enough, the case was assigned to Cannon, a Trump nominee and longtime Federalist Society member.
Trump identified no plausible reasons why the search was unlawful, let alone a reason why a new judge in a new court should review it. His filings were incoherent, failing to explain the actual relief he sought or the court’s basis for granting it. So Cannon took on the role as advocate for the former president, interpreting his nonsensical filings as marginally more plausible arguments with some basis in known law. She recast his complaint as an effort to stop investigators from reviewing papers with some kind of privilege—executive? attorney-client? who knows?—as well as a demand that personal materials irrelevant to the search be returned.
Cannon then issued an unprecedented order prohibiting federal officers from continuing their probe into the president—the first time in American history that a judge halted a pre-indictment criminal investigation into a suspect. Federal courts do not have this power, but Cannon purported to exercise it anyway. (The 11th Circuit quickly shot down that part of the injunction.) She also appointed a special master, Raymond Dearie, to sift through the materials and identify those that might be subject to some kind of privilege. During this period, Trump and his team made wild claims to the media, including the allegation that the Justice Department planted evidence, and that he secretly declassified the seized materials. When Dearie asked Trump to explain these claims in court filings—under oath, when lying could incur real consequences—Cannon abruptly swooped in to save him, placing new restrictions on Dearie’s discretion that prevented him from demanding the truth from Trump. She also extended Dearie’s tight timeline at Trump’s behest, keeping the broader investigation on ice.
Now the 11th Circuit has closed the curtain on this absurd misadventure. The three-judge panel consisted of Chief Judge William Pryor, a very conservative George W. Bush nominee, as well as Britt Grant and Andrew Brasher, both Trump nominees. Their opinion was issued per curiam—that is, unsigned—though it bears some hallmarks of Pryor’s writing style. It is blunt from start to finish, beginning with this curt introduction: “This appeal requires us to consider whether the district court had jurisdiction to block the United States from using lawfully seized records in a criminal investigation. The answer is no.”
The fundamental problem with Cannon’s reign over the case, as the court explained, is that she did not have jurisdiction to hear it in the first place. Typically, federal courts can only exercise jurisdiction when they are authorized to do so by the Constitution or a statute. The exception is “equitable jurisdiction,” which is exercised when a grievous and irreparable injustice cannot be prevented any other way. Because it rests on shaky legal grounds, the Supreme Court and the 11th Circuit have stringently limited equitable jurisdiction to the vanishingly rare case in which, among other things, the government displayed a “callous disregard” for a plaintiff’s constitutional rights. Yet even Cannon acknowledged that the government displayed no such disregard here. And on that basis alone, the 11th Circuit concluded, she had no authority to hear this case, and her involvement constitutes “needless judicial intrusion into the course of criminal investigations—a sphere of power committed to the executive branch.”
There are other factors a case must satisfy before justifying equitable jurisdiction, and none of them are present, either. Trump claimed “an individual interest in and need for” the seized materials, asserting that they belong to him. But “that is not enough,” the judges wrote. After all, “in most search warrants, the government seizes property that unambiguously belongs to the subject of a search. That cannot be enough to support equitable jurisdiction.”
Trump also said he would be “irreparably injured by denial of the return of the property,” though he didn’t explain why. And so, the 11th Circuit wrote (with some bite), “again, the district court stepped in with its own reasoning.” Cannon concocted the theory that Trump would face a “stigma associated with the threat of future prosecution.” But that isn’t enough, either: “No doubt the threat of prosecution can weigh heavily on the mind of anyone under investigation,” the 11th Circuit wrote, yet “that ordinary experience cannot support extraordinary jurisdiction.” Finally, Trump said he had no other means of securing the return of “his” property. But even if these papers were “his” (a contested point), it is simply not the law that suspects can demand the return of seized material this way. “Presumably,” the 11th Circuit noted, “any subject of a search warrant would like all of his property back before the government has a chance to use it.”
“Only one possible justification for equitable jurisdiction remains: that Plaintiff is a former President of the United States,” the judges wrote:
It is indeed extraordinary for a warrant to be executed at the home of a former president—but not in a way that affects our legal analysis or otherwise gives the judiciary license to interfere in an ongoing investigation. … To create a special exception here would defy our Nation’s foundational principle that our law applies “to all, without regard to numbers, wealth, or rank.”
The decision could not be more emphatic, or more devastating to both Trump and Cannon.
Trump, of course, has lost the benefit of a special master slowing down the federal probe into his alleged misconduct. He has lost his closest judicial ally in the fight, Cannon, who must now dismiss the entire case. (Trump will appeal to the Supreme Court, but he will lose.) Cannon, meanwhile, will see all her handiwork disappear as the case vanishes from her docket. Dearie will go home, having done essentially nothing of value. He certainly tried to restore the rule of law to this case, but Cannon boxed him in at every turn.
Was it worth torching her reputation to give Trump a few extra months of special treatment before the hammer inevitably came down? Was it worth transforming her court into a mockery of justice by brazenly granting extra-special treatment to the president who put her on the bench, in a fashion that looked to the world like the return of a favor to her benefactor? Only Cannon can answer those questions. The rest of us can breathe a sigh of relief that not every conservative judge is as unprincipled, unethical, and unfit for office as Aileen Cannon.