Aileen Cannon and Donald Trump
Photos: US District Court and AFP Photo/Joshua Lott

Donald Trump's hand-picked judge in Florida put a hold on the documents seized by the Justice Department at Trump's Mar-a-Lago resort in Florida.

In an opinion that is likely to be challenged by the DOJ, U.S. District Judge Aileen Cannon ordered that a special master be appointed to review the documents that investigators said have already been filtered and sifted through by those with the proper security clearance.

Cannon writes that executive privilege, in addition to Trump's attorney-client privilege, is on the table for the special master and that all of the documents can be reviewed. But some legal experts think that it is likely to be challenged.

Berkeley Law Professor Jonah Gelbach explained that as well as the special master, "Cannon has entered a temporary injunction restraining the government from review or use of the items seized from Mar-a-Lago for 'criminal investigative purposes.'" That puts a stop to the progression of the investigation, which certainly delays any possible indictment of the former president.

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Gelbach noted that Cannon listed off four elements that Trump must establish to get an injunction, and then doesn't find that Trump has some of them.

"Her basis for finding 'a' likelihood is, she says, contained in part III of her Discussion, at pages 14-18," he continued. "But part III is full of couched language like 'arguably' and 'the Court is not convinced' and 'evidence from which to call that premise into question.'"

It made him ask how "likelihood" could be part of a court ruling. "In sum, Judge Cannon *correctly (sic) stated the legal requirement of a substantial likelihood *then declared only that she'd found 'a likelihood,' based on a discussion in which she makes no such finding, repeatedly indicating uncertainty about the merits of the review process. That alone looks like [an] abuse of discretion and thus reversible error to me. I assume that will be one point in DOJ's inevitable appeal of the preliminary injunction to CA11."

"This is one of the strongest critiques — that the order doesn’t address the threshold issue of how executive privilege applies against executive inquiry," wrote attorney Ken White, who goes by "Popehat." He disputes that the decision is a "catastrophe" for the Justice Department and some seem to think that it will be overturned anyway. "Even if the order isn’t a catastrophe, I think the observation that the court bent over backwards for Trump on every issue is a fair assessment."

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The piece of the ruling he thinks are worthy of the "freakout" is what will likely be part of the reason for the appeal to ensure there's no written case law.

"Those would include (a) the identity of the special master, (b) the scope of their assignment, (c) her further orders ruling on the special master’s findings, (d) 11th circuit or SCOTUS emergency action," White wrote. He also noted that any MAGA Republicans saying that the judge stopped the criminal investigation is woefully ill-informed.

"The judge shut down, for now, [the] review of documents seized from Mar-a-Lago. The criminal investigation existed before that and will continue on other channels as before," said White.

American Enterprise Institute's Norm Ornstein noted that Cannon shouldn't even have taken the case to begin with.

"It was in the hands of the magistrate judge, she was picked by Trump's lawyers solely because she was a Trumpist, in a jurisdiction nowhere near Mar-a-Lago. She has in effect engaged herself in obstruction of justice," he alleged.

Steve Vladeck, who serves as the Charles Alan Wright Chair in Federal Courts at the University of Texas Law School, similarly called the ruling "preposterous." He highlighted "the part where it blocks the government from continuing to use materials already in its possession. At the very least, that last ruling creates an immediately appealable injunctive-like order, which DOJ can now take to the Eleventh Circuit."

While the 11th Circuit isn't exactly the most friendly to progressive causes, the law is written clearly, the analysts agree. Taking the case to the Supreme Court would require a revisiting of whether the existing president is the official "executive" and thus rules "executive privilege." Trump allies like Allen Dershowitz has argued that all presidents should govern their own executive privilege and that the existing president shouldn't have any power over past president's documents and information.

Former acting Solicitor General Neal Kayal called it outright "Crazytown," with former U.S. Attorney Joyce White Vance posting her own agreement.

But it was a former prosecutor for special counsel Robert Mueller, Andrew Weissmann, who issued a blistering takedown.

"I truly hoped Judge Cannon would adhere to the rule of law, but she in fact is now another illustration of the insidiousness of Trump and the Big Lie. And how he has infected formerly mainstream Republicans," he said on Monday.