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Opinion/Editorial: Trust the system in judge's naming Trump case referee

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Mar-a-Lago

An aerial view of President Donald Trump’s Mar-a-Lago estate.

The appointment of a special master to review documents seized by the Justice Department from Donald Trump’s Mar-a-Lago residence adds one more way Trump and his loyalists can sow seeds of distrust in the court system that threaten equal application of law application under the Constitution.

Or maybe not.

Trump, who in 2016 bragged that he “could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose voters,” loves to project a bullet-proof persona. A judge he appointed to the federal bench in Florida just gave the former president more ammunition.

Judge Aileen Cannon owes her lifetime appointment to Trump. That fact alone creates the appearance of conflict of interest. The breadth of Cannon’s ruling on the special master request by Trump’s lawyers offers a legal interpretation which some legal experts say is unprecedented in a federal criminal and national security investigation.

Special masters, usually lawyers or retired judges, are not uncommon in hotly contested civil litigation. An example would be a legal action where people claim injury from a product that a private company allegedly knew was dangerous, but sold anyway. Such cases can involve literally millions of documents and defendants disputing which documents are admissible.

Trump’s apparent improper removal of top secret, secret and classified documents from the White House after he lost the 2020 presidential election involves foundational questions for the American justice system.

Cannon chose to limit the Justice Department investigation while the special master looks at 11,000 documents the FBI seized at Mar-a-Lago. The judge will give the special master power beyond what the post usually receives. Cannon empowered the special master to rule on whether executive privilege applied to documents.

This would allow Trump to keep them from being used even if they were material to the investigation.

The most stifling piece of Cannon’s ruling came with an order blocking the Justice Department from further examination of records it already possesses until the special master looks at the documents. This effectively places the investigation on hold.

Cannon’s order makes clear the importance of finding a special master with a reputation for being fair and incorruptible.

The judge’s call sparked harsh criticism from several attorneys interviewed by the New York Times. Stephen I. Vladeck, a law professor at University of Texas, told the Times that Cannon’s action amounted to “an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation.” Ronald S. Sullivan at Harvard Law School told the Times that Cannon’s ruling was “deeply problematic.”

In an interview with The Daily Progress, Richard Painter, an attorney who served as President George W. Bush’s ethics czar, offered a less conspiratorial explanation for Cannon’s behavior.

“I can see a case for her recusing herself,” Painter said. But, he added, “I suspect the judge is going to do her job. She’s not going to go out on a limb for a case that she knows is going to the appeals court.”

Painter made another excellent point. “Bending over backwards” to be fair to Trump “is a good idea because it will help reinforce faith in the rule of law.”

The Justice Department can use the legal system to challenge Cannon’s ruling if it thinks that serves the country best.

Or it can let things move along, relying on the fact that a special master has “limited powers to impede a Justice Department investigation and prosecution,” Painter said.

The thing here is to trust America’s legal process. It already worked to certify the 2020 presidential election. It continues to work in the prosecutions of insurrectionists who invaded the Capitol Jan. 6, 2021. It can still work in the classified records case, whatever the Justice Department decides to do.

Meanwhile, anyone who thinks Painter is a pro-Trump shill better think again. He sued Trump for using the power of the presidency to enrich himself. These days, Painter said, “I am a strong supporter of prosecuting President Trump for sedition.”

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