For those flabbergasted and dismayed by Judge Aileen M. Cannon’s absurd ruling granting former president Donald Trump a special master’s review of the sensitive documents recovered from Mar-a-Lago, Tuesday’s hearing before the special master himself, Judge Raymond J. Dearie, came as a breath of fresh air — and a reminder that not every judge is an unabashed partisan.
As a preliminary matter, Dearie made clear that this was a civil case in which Trump had the burden to show he had some claim to get back documents seized under a properly served search warrant. That was already an improvement over Cannon, who seemed never to consider that vital prerequisite to any further ruling.
It did not take much longer for Dearie to get to the nub of the matter: Because there is apparent evidence in the affidavit for the Mar-a-Lago search warrant that some of the documents are classified, Trump needs to officially challenge that, otherwise, Dearie said, “As far as I’m concerned, that’s the end of it.” (Trump’s lawyers had refused to say whether the former president had declassified any documents.)
That should have been blatantly obvious to Cannon, who seemed not to understand that federal judges are not in the business of contradicting classifications without some very good reason to do so. Moreover, Trump’s lawyers had not even asserted Trump had declassified documents. Dearie, by contrast, understands separation of powers and the limited role of the judiciary. He went on: “How am I going to verify the classification? … What business is it of the court?” Dearie suggested that if Trump had nothing to offer, he might not even have to look at the documents.
When Trump’s counsel protested that he didn’t want to give away his litigation strategy by saying whether Trump declassified the documents at issue, Dearie said that was his choice. However, he also said his “view is [that] you can’t have your cake and eat it, too.”
Trump’s counsel tried to protest the no-nonsense schedule Dearie set out. Dearie was unimpressed, saying he intended to do his best to meet the deadlines he set out. Any rumors that the special master is “slow” making decisions were put to rest.
It was an immensely satisfying hearing for informed lawyers, reporters and onlookers who felt as though Cannon was gaslighting the country by entertaining Trump’s utterly groundless claims. For once, Trump did not get treated with kid gloves. Dearie affirmed that Trump is not entitled to special treatment because he was once president; this is how the rule of law is supposed to work.
As former federal prosecutor Harry Litman tweeted, “an actual real Judge showed up, to Team Trump’s chagrin,” which will probably also make it more difficult for the U.S. Court of Appeals for the 11th Circuit “to adopt any of the cockamamie reasoning of Judge Cannon” on an appeal.
The hearing leaves several questions still open: First, the 11th Circuit might grant the government’s request for a stay, in effect depriving both Cannon and Dearie of further jurisdiction until it can rule. Second, it’s not clear whether Dearie will demand an affidavit from Trump on the declassification issue or simply rule that he has no authority to question the classification. Third, once Dearie decides that a batch of documents are classified, he might just send the whole thing back to Cannon with the determination that classified documents invariably defeat a claim to executive privilege in a criminal investigation (or, in any case, cannot be returned to Trump).
What we do know is that Dearie is no foot-dragger or ignoramus. If Trump was counting on either, he has badly miscalculated. Instead, Trump’s gambit only helped the government convey the seriousness of the investigation and the lack of any viable excuse for making off with sensitive documents. All in all, this was an unmitigated disaster for Trump — and an embarrassment for Cannon, whose ruling looks preposterous compared with a competent judge’s assessment.
But most of all, it was a strong day for the rule of law. And that, at a time the MAGA movement is seeking to unravel our democracy, is worth savoring.