Has Merrick Garland screwed up the Mar-a-Lago case?

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 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 Office of the Director of National Intelligence (DNI) has already committed to Congress that it will access the classified documents to assess the damage to national security.

Trump instantly hailed his appointee as a “brilliant and courageous judge whose words of wisdom rang true throughout our nation.” But Cannon penned an order that few lawyers are able to rationalize.

Even Cannon in her opinion cited a Supreme Court case for the proposition that “restraints on criminal prosecution are disfavored.” And Trump Attorney General William Barr was quick to tell Fox News that her opinion was “deeply flawed in a number of ways.”

What is so perplexing about the way Garland has proceeded is that it is Hornbook law in the federal courts that the filing of a notice of appeal divests the district court of jurisdiction. If Cannon has no jurisdiction, she has no power to act, and the issue of the injunction must be brought before the conservative 11th Circuit Court of Appeals, where six of the 11 active judges are Trump appointees.

The proper course of action would have been to move to modify first; and then, if dissatisfied with the outcome, take the appeal to the circuit court. Often in the law, Alphonse must precede Gaston.

Garland’s beef with Cannon’s decision is not the appointment of the special master. He says he can live with that. The beef is the issue of national security. One hundred of the seized documents are on their face classified. There are also apparently empty envelopes and casings with classified markings.

Of course, Cannon could have reviewed these documents in one day; it might take the special master a week at the most. Special masters love to run up time on the clock. Indeed, the contents of the 100 classified documents are irrelevant to the criminal case, as their very possession by Trump is criminal. Cannon’s ruling may be no more than a rain delay.

Garland argues that the injunction endangers national security as it is necessary for the criminal investigators to inform DNI where they found the classified documents and who had access to them. Fingerprint and DNA evidence involving the documents may help investigators identify the location of missing documents, some of which Trump may have removed in boxes to his home in Bedminster, N.J. last May.

Only then can the DNI make a meaningful national security assessment. The FBI submitted an affidavit to Cannon, making the case that her prohibition of their use of seized classified material would “cause the most immediate and serious harm to the government and the public.”

Cannon’s opinion is particularly obtuse on the issue of executive privilege. Executive privileged documents, whether classified or not, are the property of the government. There is no way that such documents will ever be returned to Trump. The executive privilege exists so the president can be assured of confidence in communicating candidly with his advisers. The Supreme Court has already held that executive privilege cannot be used to shield presidential wrongdoing. Criminality aside, executive privilege exists for the protection of the executive branch from the legislative branch.

Here, the Justice Department, the FBI and the DNI are all part of the executive branch. Do we need a course in high school civics here? Cannon’s order would erect a wall between the agencies of the executive branch. This is unprecedented.

At the moment, the case is a procedural mess. Even if the government persuades Cannon that she made a terrible mistake, she may have no jurisdiction to rectify it because the government has filed a notice of appeal. The government has already said it will return personal documents to Trump. But for the moment, neither the FBI nor DOJ can look at or make use of 100 classified documents because of a blanket claim of privilege that can’t possibly succeed.

So, if the FBI and DOJ can’t look at them, who can? Has Cannon bought into the MAGA trope that the FBI and the Justice Department are “vicious monsters”? Have we really come to this? As things now stand, Cannon has rendered an indefensible and politically partisan decision.

James D. Zirin is a former federal prosecutor in the Southern District of New York.