I don’t understand how the judicial branch has the power to enjoin the executive branch from continuing an investigation or using evidence already obtained. A judge could exclude specific evidence from a trial or even dispose of charges, but it seems to me that the executive branch has sole discretion to investigate or not.
The Dept of Justice should just go ahead and investigate as they deem necessary and proper. The judicial branch has no legal power or means to prevent it.
The short answer is: They can’t.
It’s a very dangerous precedent and why I believe Garland will appeal, if only on this limited basis. They will likely return first to the ruling Trump judge and ask her for clarifications on her rulings. After that, there are a number of ways they can proceed. The most likely one I’ve heard discussed is that DOJ will bifurcate this issue on executive privilege from the remainder of the ruling and appeal on that basis alone.
Merrick Garland is a judge’s judge. He was regarded as one of the very best in the land, before he got fucked out of his seat on the SCOTUS by McConnell. This Trump judge is attempting to bootstrap executive privilege to a former “executive” who 1) never asserted the privilege for 18 months; 2) never specified which documents over which he asserted such privilege; and 3) never argued against Biden’s waiver of the privilege. Garland is going to take this very seriously, I believe.
Appeal to whom? More trump-appointed judges? (Serious question)
Remember that an awful lot of Trump-appointed judges still did the right thing turning away Trump’s efforts to assert election fraud. Just because they were appointed by him doesn’t mean they all checked their judicial chops at the door. (Although some did, to be sure.) They are much more creatures of the Federalist Society than dedicated protectors of Trump.
Most judges understand that if they uphold rules that create anarchy, there is little purpose in having a judiciary at all.
They also realize that if they create a precedent that assists Trump today, it may well assist a president who is a Democrat at some date in the future. Not the preferred outcome.
Lastly, they understand that if defendants can enjoin and delay an investigation, that’s not justice. “Justice delayed is justice denied.”
The Eleventh Circuit is comprised of 6 Trump judges and 5 others. The DOJ needs only one of the Trump-appointed to agree with the other 5 to overturn this abhorrent ruling. I think they have a fair shot.
ETA: Bill Barr just came out and said the ruling was “wrong” on the special master. No one was more in the tank for Trump than him. When you’ve lost Barr…
I seriously think that some of them are planning that it will never come to that, and there will never be a Democrat president at any time in the future.
I don’t doubt that’s the goal.
The situation has been officially Trumped. From here on out, none of it is going to follow any kind of sane logic. Trump’s people are involved in the decision making.
We can but hope… 
Apropos of that 
From The Atlantic online: (I hope this is a gift link - not sure.)
This guy doesn’t mince words.
One of the most dispiriting aspects of the decision yesterday by Federal District Court Judge Aileen Cannon—which granted former President Donald Trump’s request to appoint a special master to review the evidence seized from Mar-a-Lago by the FBI—is that it undermines the work of all the other judges who have tried to adhere to their oath to “administer justice without respect to persons, and do equal right to the poor and to the rich, and … faithfully and impartially discharge and perform all the duties incumbent” on the office. Her ruling is untethered to the law and presents a skewed recitation of the facts. Her actions make the question “Who appointed the judge?” a sadly relevant one in evaluating a judicial opinion.
Federal courts, with the notable exception of the Supreme Court, have generally fared well in providing a strong check and balance on attempted executive-branch abuses by Donald Trump. His efforts to have the courts further his bid to overthrow the will of the people in the last election have been rejected by judges nominated to the bench by both parties. The rule of law was on full display; courts around the nation repeatedly revealed a forum where facts, legal precedent,* and logical reasoning have pride of place.
Cannon’s opinion, by contrast, is so deeply flawed that it’s hard to know where to begin a critique.
…
My bold.
He basically rips her a new one before concluding:
These are just a few of the factual and legal deficiencies in Cannon’s decision. It may help Trump in the short term, but by failing to apply the law evenhandedly, she has done lasting damage to the judiciary.
*Excepting the Supreme Court.
An excellent piece. I agree entirely.
My sense would be that it’s reasonable to allow a special master - so long as all parties agree as to who that person is - given the political realities of the situation.
That said, it’s worth hammering out the precise rules for this situation at the level of the Supreme Court so it’s worth appealing all of the way to the top.
I’m curious whether it’s possible to accept the judge’s decision while continuing to appeal? Or, if you appeal, does that automatically put everything on hold?
Can Judge Loose Cannon be charged with obstruction of justice? Can she be impeached for judicial misconduct and removed from the bench?
No. Judges are allowed to make mistakes. That’s what the Court of Appeals is there for. I hate Trump as much as anyone, and would love to see him indicted.
I don’t share the hostility to the judge and her order, however. It’s a speed bump. Annoying, but won’t matter in the end.
I agree judges are allowed to make mistakes and the Court of Appeals is there to fix that.
However in this instance, this judge had to reach hard to make the mistakes she made. And that troubles me a lot.
Yes. But troubling things happen all the time in court. Almost every day, a judge somewhere reaches very hard to through out a plaintiff’s lawsuit against a rich and powerful corporation. We shouldn’t threaten judges with criminal charges or impeachment without very strong evidence of corruption. I assume this Judge is doing what she thinks is right, and it makes some sense. I would have denied Trump’s motion in a heartbeat, but I learned long ago that every ruling I disagree with is not necessarily a miscarriage of justice.
I do agree with this. And I suspect her career as a jurist has already been badly tainted by this ruling.
Until she becomes the next AG.
The only thing that concerns me is if the judge ruling that executive privilege might apply opens a door that eventually kills the case.
The question about whether or not it is applicable should be a really obvious “of course not”. The Supreme Court ruled on it the year I was born. It’s settled law. We have what should be an easy answer. But now it’s muddied by this judge, and I worry that if the special master determines that it applies to some or all of the documents, then that will get appealed up to the Supreme Court, who got a taste of blood from Roe v Wade and decides to put more precedent in the paper shredder.
John Adams, writing under the pen name “Novanglus”, wrote the following in a letter to refute a published essay that proposed that the American Colonies had to be subject to British rule.
If Aristotle, Livy, and Harrington knew what a republic was, the British constitution is much more like a republic than an empire. They define a republic to be a government of laws, and not of men.
He later codified the idea into the Massachusetts Constitution, writing in Article XXX:
In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.
That same principle was adopted into the US Constitution (if not the exact wording). That this is a government of laws, and not of men. Specifically, the separation of powers is essential for that principle to be maintained. I think we might be seeing this breaking down, as clearly this is not being ruled because of what is in law, but because of who is being investigated. That is extremely un-American.
They was my thought. Or the next Supreme.
I agree 100%.
According to the Washington Post, extremely high level material on the nuclear capabilities of art least one foreign nation were among the documents recovered at Mar-a-lago.