The DOJ may not be able to afford leaving this order’s precedent on the books, given its numerous analytical flaws. But it might be faster to just accept a wrong ruling.
enjoining the Department of Justice from using those materials in its ongoing criminal investigation until a special master completes his or her review was in some ways not a surprise. Now that we know the grounds for Judge Cannon’s view and the scope of her order, though, we must respectfully but strongly disagree.
, which permits the return of property seized by an unlawful search and seizure. Presidential records are, by the clear terms of the Presidential Records Act, the property of the U.S. government—not the former president.The order ignores the impossibility of returning these documents to Trump under these circumstances: There are more than
, including 18 designated as Top Secret—signifying that their mishandling risks exceptionally grave damage to national security.
Second, to the extent the order authorizes a special master to review the materials for assertions of executive privilege, there is no basis for this ruling. Both federal statutory law in the form of
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