The Trump Search Case Judge by Marc A. Thiessen

Political Crossfire The Trump Search Case Judge Doesn’t Get the National Security Stakes

By Marc A. Thiessen

Okay, Judge Aileen Cannon, you’ve got me stumped: How can the U.S. government conduct a national-security damage assessment about possibly leaked classified documents if FBI criminal investigators can’t look at the documents or interview witnesses to figure out who might have had access to the material?

The Justice Department should ask Cannon, a federal district court judge in Florida, to clarify her order issued last Monday in the Mar-a-Lago search case – and pronto. Because, as written, it is pulling in two directions at once, on a matter of potentially grave danger to national security.

The contradictions are screamingly obvious in the final pages of her order: “The Government is TEMPORARILY ENJOINED from further review and use of any of the materials seized from [former President Donald Trump’s] residence . . . pending resolution of the special master’s review process determined by this Court.” However, the judge added, “The Government may continue to review and use the materials seized for purposes of intelligence classification and national-security assessments.”

Huh? That sounds like saying you can pound a nail, but you can’t use a hammer. Yet Cannon, a Trump appointee, insists that “a temporary injunction on the Government’s use of the seized materials for investigative purposes – but not [the Office of the Director of National Intelligence’s] national security assessment – is appropriate and equitable to uphold the value of the special master review.”

That supposed division of labor – drawing a neat distinction between “investigative” purposes and a “national security” assessment – might make sense to Cannon. But some experienced national security lawyers are puzzled, to put it mildly.

“It is impossible to square these two rulings,” says Jamie Gorelick, a former deputy attorney general under President Bill Clinton. Jeff Smith, a former CIA general counsel, explains: “It’s not clear from Cannon’s opinion that she understands what’s entailed in a damage assessment. I think she must believe that all they have to do is look at the documents and decide what harm would result if they were leaked or given to someone without authority.”

Robert Litt, a former ODNI general counsel, observes: “Typically, when you do a damage assessment . . . you know who has access to the information: Edward Snowden released information to the world; Aldrich Ames to the Russians. I don’t remember ever seeing one during my time where we knew that information had been mishandled but we don’t have any idea whether anyone had access or who.”

This isn’t as bad as it could have been. Fortunately, Cannon’s order only covers the documents that were seized by the FBI on Aug. 8, which included 15 sets of classified documents. It doesn’t involve the 15 boxes of records that Trump delivered in January, which included 184 classified documents, 25 marked top secret. And it doesn’t reach the documents turned over to the FBI on June 3 in response to a subpoena, which included 38 classified documents, 17 marked top secret.

So the criminal counterintelligence investigation into how and why Trump retained those documents – and whether they might have been obtained by a third party – can continue, as I read the order. The stop-work order applies only to the more than 100 additional classified documents that Trump retained even after his representatives said they had delivered everything.

I agree with Cannon that there is some benefit in appointing a special master to double-check the Justice Department’s assessment of whether some Trump documents are privileged. But she is wrong in arguing for this review because, as she put it, the stigma of document seizure for a former president is “in a league of its own.” Nonsense. All reputations are created equal. The benefit of a special master is for the rule of law, assuring a divided nation that the process is fair.

Cannon doesn’t seem to fully recognize the national security stakes here. We’ve all seen the cryptic notations on these documents about special compartments and code word protections for human and signals intelligence. These very high classifications are imposed when the lives of CIA agents are potentially at risk; or the NSA’s most sensitive techniques of intercepting and decrypting foreign communications might be compromised. These are the kinds of secrets for which spies risk their lives, and for which traitors are executed.

If Cannon wants to review the Justice Department’s judgments about what’s personal and privileged in Trump’s mess of presidential materials, okay. But, in the name of George Smiley and all the lamplighters, headhunters and pavement artists of the spy world, don’t suspend the FBI counterintelligence investigation of the documents recovered on Aug. 8 while the lawyers continue their paper blizzard of motions and briefs.

As former CIA director Richard Helms liked to say: “Let’s get on with it.”