'Numerous grounds' for DOJ to contest Judge Cannon’s ruling: Legal experts break down what’s next

Lawfare legal experts came together Tuesday to discuss the ruling published by Judge Aileen Cannon appointing a special master to review the documents taken by the FBI to ensure there's no privileged information taken.

The Justice Department told the judge that they'd already gone through the information, sifting out thousands of documents and information that wasn't related to their investigation into Donald Trump stealing government documents. It isn't likely to take long. But what is concerning among legal scholars is the caselaw created by Judge Cannon that they don't think should be on the books.

The Justice Department indicated on Labor Day that they'd look into their next steps, but they haven't indicated what they'll do just yet. Attorney General Merrick Garland has frequently said that his department intends to speak only through the court filings, so it may be a week before Americans learn how the department will respond.

Third-year Harvard Law student Anna Bower cited "gaping holes" in the Trump argument that were never even addressed.

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University of Kentucky Law Professor Jonathan Shaub noted that there are "numerous grounds" for the DOJ to contest Judge Cannon's opinion. He said that the opinion has a "complete misunderstanding of executive privilege."

Shaub also said that he doesn't think that the ruling is all that hurtful to the investigation. It might cause a delay, but Garland has strident rules about things that involve officials or politics ahead of an election after James Comey's Hillary Clinton debacle in 2016.

The larger hurdle, he asked, is "what happens if we leave this precedent out there?"

Brookings fellow Ben Wittes appeared to agree with the sentiment, telling the panel that he's never heard of an injunction like this. It was a sentiment echoed by several legal experts who spoke out over the past 24 hours. He wants to know how it will impact the investigation. For now, things are on hold, but the DOJ made it clear that they've already sorted the documents, categorized them and the judge released what was in them. It's unclear if they've been able to fingerprint them, however.

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Witts also wondered how far the judge's opinion went beyond what Trump's lawyers were asking.

"A few times, she was kind of doing their lawyering for them," Bower replied of Cannon, who was appointed to the bench after Trump lost the election in 2020.

"People say being a federal judge goes to your head, and I think this opinion is an example of that," Witts said.

Former Republican Justice Department officials offered an amicus brief, but Judge Cannon was uninterested, BuzzFeed justice reporter Zoe Tillman said Tuesday.

Natalie Orpett, the executive editor of Lawfare, said that this ruling poses the question of whether classified documents even be subject to executive privilege.