Earlier this week, a federal judge granted President Donald Trump’s request for a special master in the government’s investigation into allegations that he improperly stored ultrasensitive national security information somewhere within his South Florida beach club. Once appointed, the special master will review documents that the FBI seized from Mar-A-Lago to ensure that agents didn’t take personal effects or documents subject to attorney-client or (more controversially) executive privilege.
The judge who authored the order is Aileen Cannon, appointed by Trump to the U.S. District Court for the Southern District of Florida in 2020. Cannon, a longtime member of the Federalist Society, spent most of her career as a federal prosecutor before joining the bench. In 2019, the office of Florida Republican Senator Marco Rubio reached out to gauge her interest in filling a judicial vacancy. Rubio has downplayed the investigation, which may implicate Trump’s retention of top-secret information regarding foreign nations’ nuclear capabilities, as a “fight over storage of documents.”
Cannon’s first 20 months on the federal bench were relatively uneventful, until Trump’s request landed on her desk. The Presidential Records Act requires that the presidential administrations “ensure preservation” of official documents and turn them over to the National Archives and Records Administration when the presidency is over. In 2021, NARA archivists spoke with Trump about records from his White House tenure that they believed to be missing. As a result of these conversations, in January 2022, Trump handed over 15 additional boxes of documents to NARA.
Had the saga ended there, Cannon might have remained a mostly-anonymous district court judge basking in Federalist Society nepotism and the Florida sun. But NARA archivists, to their alarm, found classified national security documents in those 15 boxes, along with evidence of Trump’s troubling habit of tearing up documents instead of turning them over to the government. After the Department of Justice asked a grand jury for a subpoena for these missing documents, in June, Trump allowed the FBI to enter Mar-a-Lago and retrieve them.
During that search, however, the FBI came across even more sensitive records still in Trump’s possession, prompting the DOJ to obtain a search warrant. After FBI agents executed the warrant in August, Trump lashed out, claiming that “nothing like this has ever happened to a President of the United States before,” which is true in that no former president has kept illicit classified documents that potentially include nuclear secrets in a Mar-a-Lago storage closet.
When someone asks how many times you got impeached (Photo by Scott Olson/Getty Images)
Cannon’s intervention brings the government’s investigation to a screeching halt. Her order, which requires both sides to nominate special master candidates by September 9, prevents the DOJ from moving forward until the special master has completed their review. Attorney General Merrick Garland has already expressed skittishness about prosecuting Trump so close to the 2022 midterm elections. And because the DOJ maintains an informal policy of avoiding “overt law enforcement and prosecutorial activities” within 90 days of an election, the delay likely means that voters won’t learn more about Trump’s alleged crimes until after the elections are over.
The appointment of a special master is an example of “equitable” relief, which has more to do with the desire for fairness than with compliance with a black-and-white legal requirement. Typically, courts have limited this form of relief to “exceptional” circumstances, and warned that it should be “exercised with caution and restraint.” For Cannon, the exceptional circumstance—the “irreparable harm” Trump might suffer without a special master—is the “serious, often indelible stigma” of a false indictment.
Cannon’s order places great weight on Trump’s position of power; because he is a former president, the associated stigma is “in a league of its own,” she writes. Trump faces an “unquantifiable potential harm by way of improper disclosure of sensitive information to the public,” she explains, and an indictment based on any improperly-seized material “would result in reputational harm of a decidedly different order of magnitude.”
The careful treatment afforded to Trump—procedural restraints that Cannon acknowledges are “disfavored” during most criminal proceedings—is relief that the average defendant who is not a former President of the United States could never count on. Her decision to bend over backwards to appoint a special master before Trump has even been indicted is a stark reminder of whom the criminal legal system treats with care, and who doesn’t.
For most people caught in the system’s dragnet, “reputational harm” is actually pretty low on the list of harmful consequences they may suffer. More than 400,000 people are languishing in U.S. jails pre-trial, according to data from the Prison Policy Initiative. Many of these legally innocent people are there only because they cannot pay money bail, or because federal immigration officials have placed a hold on their release. While incarcerated, they may lose their jobs, their children, or their homes.
People of color are disproportionately victimized by this system. Black people make up 12% of the U.S. population but comprise 43% of the people in U.S. jails held pre-trial, according to the Prison Policy Initiative. Many jurisdictions make decisions about pretrial incarceration “Risk Assessment Tools,” which use algorithms to predict one’s likelihood of absconding court or future dangerousness. These tools explicitly consider race, among other factors, to determine whether someone will be free or remain caged while their case winds its way through the system. People held pretrial are also more likely to be convicted and receive harsher sentences than people released on bail, according to the Vera Institute of Justice. While Trump gets the obsequious white-glove treatment from a federal judge concerned about his eroding dignity, poor people and people of color are left to fend for themselves.
For the life-tenured Federalist Society acolytes sitting on the federal bench, Cannon’s order is par for the course. But Republican judges are not only especially likely to be sympathetic to their benefactor’s legal troubles. They are also far more willing to sympathize with a defendant who is rich and powerful than they are with most of the people who pass through their courtrooms every day. Only when Cannon encounters someone whose shoes she can imagine herself wearing do the criminal legal system’s harshest consequences require urgent intervention. Otherwise, the system is left to ruin lives at the usual pace.
