Why is a young, ideologically-driven judge with a lifetime appointment to the bench allowed to ignore legal precedents?
the executive branch, such as to Congress, to courts, or to the public. That limited scope has been clear since the 1974 decision in United States v Nixon, which one of us argued and which for the first time recognized existence of a limited executive privilege.
No prior case or other authority has treated “executive” privilege as a basis for concealing information from executive branch officials conducting executive functions, here the Justice Department’s investigation and potential prosecution of federal crimes relating to the mishandling of state secrets and presidential records. Moreover, Judge Cannon’s wholesale assumption that all 11,000 documents are presumptively within a narrow privilege for confidential presidential communications is unfounded. Her puzzling assertion that “the record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials” comes from thin air: nothing in the public record identifies the existence of any such dispute, factual or legal. In addition, in connection with the request by the House Select January 6 Committee’s work, the incumbent president, Joe Biden, made the determination on behalf of the executive branch that it is in the national interest not to cloak even presumptively privileged presidential communications with secrecy, when relevant to finding the truth about potentially criminal misconduct. The supreme courtNext, one core principle established in the Nixon Tapes case is that any presumptive privilege for even the narrow category of presidential communication must give way to the overarching public interest in investigating and prosecuting federal crimes. For Judge Cannon to ignore that unanimous holding and to hamstring the pending federal criminal probe, based on a sweeping but bogus claim of executive privilege, is egregious. The second area of abuse concerns the handling of documents marked with classification ratings, many of them at the highest levels of secrecy, involving either signals intelligence or human sources. Judge Cannon is ordering that these documents be withheld from the prosecutors. This is a particularly bizarre and muddled diktat that not only intrudes, in a manner impossible to square with the separation of powers, into the executive branch’s responsibility to investigate crimes but also distorts the executive branch’s responsibility for protecting state secrets. Trump’s lawyers never argued in court the dubious assertion that Trump has made in political tweets – that he had somehow personally “declassified” any of the highly sensitive documents retrieved from Mar-a-Lago or missing from classification folders there. Despite Trump’s unsupported assertion, it is simplythat he had “absolute authority” to declassify documents. Under federal statutes and executive orders that bind even the president, there is an elaborate set of conditions that must be met before anyone, including the president, may lawfully declassify documents. By law, documents relating to nuclear secrets, signals intelligence, and human sources are entitled to rigorous levels of protection, even from access by many senior government officials. Nevertheless, Judge Cannon apparently relied on Trump’s public tweets to insert and then indulge an argument that even his lawyers lacked the temerity to assert. Compounding her misunderstanding of her proper role as a judge, she expressed unwillingness to “trust” the executive branch’s classification of those documents, despite the statutory regime that expressly entrusts the classification of state secrets to the defense and intelligence agencies. Instead, she decided that her special master, a retired federal judge, would decide whether the materials were properly classified – subject presumably to her own review. This is a dangerous arrogation of judicial control over judgments assigned by the Constitution and federal statutes to the executive branch official responsible for national security. More than 70 years ago, the supreme courtjudges to be extremely cautious about attempting to conduct their own review of documents containing information relating to the national defense. Then in the Nixon Tapes case the supreme court carefully carved out such documents from the limited authority of courts to overrule otherwise legitimate claims of executive privilege for presidential communications, concluding that courts have no power to contest the executive branches’ “claim of need to protect military, diplomatic, or sensitive national security secrets,” as the Justice Department has asserted here. The court reiterated the well-settled principle that it “would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.”
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