by Julie Kelly
With one sentence, U.S. District Court Judge Aileen Cannon spoke for the majority of Americans who no longer have faith in the nation’s top law enforcement agency. “It is also true, of course, that even-handed procedure does not demand unquestioning trust in the determinations of the Department of Justice,” she wrote in her September 15 order denying the government’s request to prevent a third-party review of allegedly “classified” documents seized by the FBI during the raid of Mar-a-Lago last month.
At issue is the validity of claims made by prosecutors that roughly 100 records taken in the unprecedented pillage of a former president’s home on August 8 have classified markings and therefore do not belong to him. The kerfuffle began earlier this year when the Justice Department acted on a criminal referral by the national archivist, who accused Trump of unlawfully keeping classified material at his home.
Although Trump’s representatives cooperated with investigators for months, Attorney General Merrick Garland nonetheless authorized the nine-hour raid conducted by at least a dozen FBI agents resulting in the seizure of more than 11,000 pieces of evidence, including personal items such as books, medical files, tax information, apparel, and passports.
And his office has been backpedaling ever since.
The reason is that Garland’s henchmen ran into a buzzsaw named Judge Cannon. Trump filed a lawsuit seeking a court-appointed special master after requests for an impartial arbiter were denied by the government for two weeks. “The FBI and DOJ have demonstrated a willingness to treat President Trump differently than any other citizen,” Trump’s lawyers accurately argued on August 22. “[In] light of recent FBl behavior when President Trump is a part of its aim, this Court should feel obliged to demand candor and transparency, and not just ‘trust us’ assertions from DOJ.”
It appears Cannon needed little convincing. Although self-proclaimed legal “experts” mocked the lawsuit as dead-on-arrival, Cannon torched that groupthink when she announced a few days later her intent to consider Trump’s motion due to the “exceptional circumstances” of the matter. A federal prosecutor for seven years, Cannon, 40, undoubtedly watched the Justice Department’s rapid descent from a trusted government institution to a brazen enforcement arm of the Democratic Party before Trump appointed her to the bench in 2020.
In the past few weeks, Cannon has exposed a number of errors and falsehoods related to the criminal investigation into Trump for violating the Espionage Act, obstructing justice, and concealing government property—and she’s pulled no punches when it comes to her former employer.
Her blistering September 5 order finalizing the appointment of a special master revealed that the government absconded with “personal effects without evidentiary value” and at least 500 pages of privileged communications, a trove the Justice Department downplayed as a “limited subset” of evidence. (A heavily redacted version of the search warrant gave FBI agents wide berth, allowing investigators to take anything within close proximity of papers containing so-called “classification markings.”)
Calling out a department famous for leaking damaging anti-Trump tidbits to compliant journalists and columnists, Cannon partially justified her decision based on potential harm to the former president by “improper disclosure of sensitive information” to the public. At one point during the proceedings, a prosecutor “acknowledged the unfortunate existence of leaks to the press,” Cannon wrote in a footnote
Contrary to solemn pledges the government’s process was above reproach, Cannon cited at least two occasions where a separate filter team passed along privileged material to investigators. Those errors, Cannon wrote, “yield questions about the adequacy of the filter review process.” Cannon expressed skepticism of the government’s explanation as to why it happened. “[There] is a basis on this record to question how materials passed through the screening process, further underscoring the importance of procedural safeguards and an additional layer of review.”
Not only did Cannon approve the appointment of a special master, she halted the Justice Department’s use of the documents in its ongoing investigation of Trump until the review is complete. But the Biden regime is pulling every trick in its broad arsenal to keep the allegedly “classified” documents under wraps.
On the day Cannon announced Trump’s lawsuit would proceed, Avril Haines, Biden’s director of national intelligence, announced her office needed to conduct an assessment to determine whether the classified material posed a national security threat. “[Appointment] of a special master is unnecessary and would significantly harm important governmental interests, including national security interests,” prosecutors warned in an August 30 filing.
Even after Cannon carved out an exception for the intelligence community’s work, the government insisted that wasn’t enough. “The Intelligence Community’s review and assessment cannot be readily segregated from the Department of Justice’s (‘DOJ’) and Federal Bureau of Investigation’s (‘FBI’) activities in connection with the ongoing criminal investigation,” prosecutors wrote in a motion again seeking to conceal the allegedly classified papers from the special master. “Moreover, the government and the public are irreparably injured when a criminal investigation of matters involving risks to national security is [halted].”
To support its claim, the Justice Department submitted a six-page sworn statement by the FBI’s assistant counterintelligence chief explaining that senior Justice Department and FBI officials were responsible for both the intelligence assessment and the criminal investigation—cold comfort to anyone, Cannon included, observing this highly partisan and weaponized Justice Department.
Prosecutors then laughably informed the court that investigators needed to find out what papers were filed in empty folders labeled “classified,” another obvious stall tactic. “The FBI would be chiefly responsible for investigating what materials may have once been stored in these folders and whether they may have been lost or compromised—steps that, again, may require the use of grand jury subpoenas, search warrants, and other criminal investigative tools and could lead to evidence that would also be highly relevant to advancing the criminal investigation.”
That’s quite a slippery slope ya’ got there, Merrick Garland
The Justice Department is appealing her order while shifting the goalposts once again. Even if Trump declassified papers investigators now insist are classified, the Biden regime must perform another assessment “to understand what had been declassified and why (and who has seen it) to protect intelligence sources and methods,” prosecutors wrote in the appeal motion.
Of course, a president has full constitutional authority to declassify whatever he wants; there is no process that allows a succeeding administration to review declassification orders of a former president. And the last person who should be trusted with such an undertaking is Haines, a former aide to disgraced CIA Director John Brennan.
Further, it isn’t just the special master that the government wants kept in the dark about the classified documents. Representative Mike Turner (R-Ohio), ranking member of the House Intelligence Committee, said in an interview over the weekend that Garland’s office refuses to brief congressional leadership on the investigation despite numerous requests.
None of this fosters confidence in the government’s claims, nor should it. To the contrary, it appears to be another campaign of deceit waged by the Justice Department—with reliable assistance from the national news media—to get Trump.
And Cannon, to her immense credit, isn’t buying it. “The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion,” she wrote last week. Cannon also directed the special master to verify the government’s detailed list of seized evidence and obtain “sworn affidavits from Department of Justice personnel” if necessary.
With the appeal pending in a Florida court, Judge Raymond Dearie, the appointed special master, is already at work with a November 30, 2022 deadline; he will convene a meeting of both parties in New York on Tuesday afternoon.
Meanwhile, it’s safe to assume the Justice Department will hatch some new excuse as to why Dearie and his team should not have access to the “classified” material. One can only imagine what they’ll come up with next.
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Julie Kelly is a political commentator and senior contributor to American Greatness. She is the author of January 6: How Democrats Used the Capitol Protest to Launch a War on Terror Against the Political Right and Disloyal Opposition: How the NeverTrump Right Tried―And Failed―To Take Down the President. Her past work can be found at The Federalist and National Review. She also has been featured in the Wall Street Journal, The Hill, Chicago Tribune, Forbes, and Genetic Literacy Project. She is the co-host of the “Happy Hour Podcast with Julie and Liz.” She is a graduate of Eastern Illinois University and lives in suburban Chicago with her husband and two daughters.
Photo “Donald Trump” by Gage Skidmore. CC BY-SA 2.0.