Is Trump above the law?

Former President Donald Trump scored a big legal victory when a federal judge in Florida, Aileen Cannon, granted his request to appoint a special master to review documents the FBI seized from Trump's Mar-a-Lago home. Cannon, a Trump appointee, said the FBI can't use them for its investigation into Trump's handling of highly classified material until the independent review is complete. Cannon said the decision would help ensure at least the appearance that Trump was being treated fairly. But many legal experts say the ruling was flawed, and gave Trump special treatment. "This decision suggests that at least some of Trump's judges put loyalty to the man over loyalty to the rule of law," said Paul Rosenzweig, who served in former President George W. Bush's Homeland Security Department, and was senior counsel to special counsel Ken Starr when in investigated then-President Bill Clinton.

Trump has accused the Biden administration of going after him for partisan reasons and turning the justice system into a political weapon. Trump noted that this was the first time a former president's home had been searched, and said the raid showed the U.S. justice system was "broken." He said his 2016 election rival, former Secretary of State Hillary Clinton, was the one being placed above the law, because the FBI never barged into her home to conduct a search for classified information on her home email server. Is Trump being unfairly targeted, or getting special treatment?

Cannon is giving Trump special treatment, and she admits it

Cannon's ruling granting Trump a special master "screams out that she applies more lenient rules to Donald Trump," say Laurence H Tribe and Dennis Aftergut in The Guardian. She justified her decision by writing that "the stigma associated with the subject seizure is in a league of its own" because Trump was president of the United States. With that statement, "She is acknowledging that none of us would be entitled to a special master or to a special pause in the investigation if we improperly took or held onto sensitive national security materials in our homes, much less a country club with open access to apparent Chinese intelligence agents."

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It is crucial to conduct this investigation quickly for national security reasons. Instead, because it involves Trump, the case has to wait until a "reasonably neutral special master" can get the clearance to view the classified material, some of it reportedly concerning nuclear secrets. And it probably won't help for DOJ to appeal Cannon's awful decision, due to the "extreme stacking of the 11th Circuit Court of Appeals with right-wing Trump-appointed judges much like Cannon herself."

Appointing a special master is the only way to be fair

Cannon was right to "reject the Justice Department's 'trust us' argument," and let an independent outsider review the seized material before the FBI gets to use it, says Alan Dershowitz in Newsweek. "The rights at stake are important: lawyer-client and executive privileges, both of which are rooted in the Constitution." If FBI agents sifting through documents taken from Trump's home found a "'smoking gun' document — say, an admission by Trump to his personal lawyer that he had deliberately destroyed several previously subpoenaed documents" — that information would be privileged, because it concerns a "past, not future, crime." Could we really trust them not to pass on the juicy information, "by a wink or a nod, to the relevant Justice Department trial lawyers?"

This was an unprecedented intrusion targeting a former president who also happens to be the likely 2024 opponent of the leader of the current administration. That's fishy. We should be debating the merits of the ruling, and expressing skepticism about "FBI intrusions on due process." Instead, the discussion has "focused on whether it makes it more difficult to 'get' Trump." Throwing civil liberties under the bus is a great idea if the goal is to "kick" Trump down. But it sure isn't the kind of "blindfolded justice" our system is supposed to provide everybody.

Most legal experts agree Trump is being put above the law

Approving of this delay in the investigation of Trump's improper removal of White House documents puts you in the minority among legal scholars, says Josh Kovensky at Talking Points Memo. Most of them agree that Cannon gave Trump "virtually unprecedented" special treatment by "suspending the use of seized materials for the government's investigation." "Nobody else who faces the U.S. criminal justice system receives this kind of treatment." Law professors and former federal prosecutors, one after another, said "both Cannon's deferral to Trump and the blow she dealt to the investigation are contrary to the principles of equal justice before the law that undergird the American legal system."

This should hardly come as a surprise, though. Even before this matter wound up in Cannon's court, Trump enjoyed the kind of "deference" from other government institutions that none of us would ever get. "The National Archives spent the entirety of 2021 asking Trump nicely to return the records he had taken. It wasn't until December 2021 that Trump agreed to return some records, and not until January that the initial 15 boxes made it back to government possession." The National Archives then found classified material in the boxes, and referred it to the FBI, but "issued two delays to Trump before it allowed the FBI to access the documents that were already in the government's possession."

So, is this a victory for Trump?

Whatever happens next in this case, Trump has already won "a major, albeit undeserved, victory," says the St. Louis Post-Dispatch in an editorial. "Trump is trying hard to demonstrate his ongoing relevance ahead of the November midterm elections, and by allowing him to delay the criminal investigation, Cannon helps Trump avoid more embarrassments that could make voters think twice about the extremists he is supporting." Cannon justified her ruling by citing the case's "extraordinary circumstances," effectively saying "that, in fact, some people are above the law."

"As bad as things may seem now" for Trump, says former Trump administration adviser Katie Sullivan at Association of Mature American Citizens, "it could get even worse should the Biden administration choose to move forward with a grand jury indictment of Trump." All prosecutors would have to do is convince a grand jury there is probable cause to believe a crime occurred, and DOJ would have full discretion on whether to issue a warrant to bring Trump in. If Attorney General Merrick Garland chooses that option, "Trump could be marched out of Mar-a-Lago in handcuffs — no doubt in front of dozens of CNN news cameras." That would be the "most shocking violation of 'democratic norms'" yet in the Biden administration's effort to take down Trump.