A spokesperson for the Justice Department, Anthony Coley, said it is examining the opinion and “will consider appropriate next steps in the ongoing litigation.”
Cannon, a Trump appointee who was confirmed a week after Trump’s defeat in the 2020 election, gave the Justice Department and Trump’s lawyers until Sept. 9 to submit a joint filing to propose a list of special master candidates and outlining their duties and limitations. In the meantime, Cannon ruled that the documents would not be returned to Trump.
The Justice Department has indicated that if Cannon were to make a ruling of this kind, she should formally join the department, a format that would permit an appeal.
In her ruling, Cannon specifically wrote that the appointment of a special master “shall not impede” the intelligence community’s ongoing assessment of whether Trump’s possession of the top-secret documents caused harm to US national security. That review, which began in response to inquiries from Congress, is being spearheaded by the Office of the Director of National Intelligence.
Such a carve-out for the ODNI, though, could be potentially unworkable because the FBI, an arm of the Justice Department, is a member of the intelligence community and could be consulted as part of the ODNI review. A spokesperson for ODNI declined to comment on Cannon’s ruling Monday.
Cannon premised her ruling primarily on Trump’s claims of potential harm of the materials becoming public. She noted that a still-sealed report of items seized by a Justice Department “filter team” — tasked with screening out attorney-client-privileged material — said that “medical documents, correspondence related to taxes, and accounting information” were among them.
Cannon also described “leaks” to the media of information related to the seized materials as a potential risk to Trump, although she acknowledged being unsure of the provenance of those purported leaks.
She also repeatedly emphasized the extraordinary circumstance of the search of a former president’s residence.
“As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own,” she wrote. “A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.”
Cannon also criticized the government’s process for screening potentially privileged material, noting that investigators twice revealed that they had flagged potentially privileged material that was not screened by the filter team.
Justice Department attorneys said these flags were actually “examples of the filter process working.”
“The Court is not so sure,” Cannon wrote. “These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material.”
Cannon, citing Nixon-era case law that the Justice Department said decisively undercut Trump’s effort to cite executive privilege, rejected the government’s contention that Trump could never, under these circumstances, be able to successfully assert executive privilege to block the department’s review of the materials .
“The Supreme Court did not rule out the possibility of a former President overcoming an incumbent President on executive privilege matters,” she wrote.
Cannon noted that Trump has not asserted executive privilege over any of the materials seized from his home. Notably, Trump opted against taking the matter to court in May, when the Justice Department first expressed an interest in reviewing the classified material taken from his home and the National Archives granted access to the investigators over Trump’s protests.