Merrick Garland is supposed to be a pretty good lawyer. Harvard Law School, federal prosecutor, federal judge, Supreme Court nominee, attorney general presiding over the Department of Justice (DOJ) — all the cake, most of the icing, without the cherry.
But some of my former prosecutor friends tell me that he may have overlooked a key procedural point in his current joust with former President Trump over the Mar-a-Lago documents. On Sept. 8, Garland filed a notice of appeal to the 11th circuit Court of Appeals from the special master order of Florida District Judge Aileen Cannon.
Simultaneously, he moved the inexperienced Trump-appointed Judge Cannon to modify her order granting Trump’s motion to appoint a special master and gratuitously (Trump never asked for such relief) enjoining the government from “further review and use of any of the materials seized from [Trump’s] residence” (the FBI said it had already reviewed it all) “for criminal investigative purposes, pending resolution of the special master’s review process…”
The Cannon order permits the government to “review and use” the purloined documents “for purposes of intelligence classification and national security assessments.” The Department of National Intelligence (DNI) has already committed to Congress that it will access the classified documents to assess the damage to national security.