Donald Trump was granted an independent special master review after the FBI seized his Palm Beach estate, but a healthcare executive was denied the same treatment.
Cannon found that a Justice Department team tasked with separating attorney-client records from other evidence taken from a South Florida businessman would be able to do its job.
Cannon made different decisions in the high-profile and low-profile cases.
Cannon, who was nominated by Trump to the federal bench and is under a microscope as she rules over his case, provided substantially different legal reasoning in the two cases.
Observers told the Herald that Gosney did not get favorable treatment. According to experts who are familiar with the Justice Department's use of filter teams as well as the appointment of special masters, that would be looking strictly through the lens of partisan politics.
In order to protect confidential communications between an individual and his lawyer, the Justice Department has a team of agents and prosecutors who review records seized in property searches. Cannon rejected the process of returning privileged materials to the defendants in Trump's case but approved it in Gosney's case. The members of the filter team can't join investigators in the actual prosecution of a case because of their privileged information.
In September, after federal agents concerned with Trump's handling of classified and top- secret government materials pulled boxes of documents from Trump's Mar-a-Lago estate, Judge Cannon appointed an independent "special master" to examine what agents seized from his home to make sure that no privileged Cannon's ruling siding with Trump caused a lot of commentary in both legal and political circles.
According to the judge, the appointment of a special master is not uncommon in the context of attorney-client privilege.
Cannon cited at least two instances where investigators saw privileged records belonging to Trump and then had to turn them over to a government "filter" team to set them apart from evidence in the Justice Department's classified documents probe.
Cannon found that those instances alone yield questions about the adequacy of the filters.
Cannon focused her ruling on the "unprecedented circumstances" of seizing property from a former president's residence in a criminal investigation. A future indictment based on property that should be returned to him would result in a different order of magnitude.
Cannon took an opposite stance in a Medicare fraud case when a businessman asserted attorney-client protections after federal agents searched his office. Gosney was against the use of any filter team consisting of Justice Department prosecutors or agents.
Here are the items taken from Trump's Mar-a-Lago office.
The defense attorney for Gosney argued that the privileged records should be reviewed by the defense to make sure they don't fall into the wrong hands.
Cannon modified the oversight of the filter team agents and criminal investigators so they wouldn't answer to the same supervisor. The judge agreed to make her ruling public this week after the Herald's lawyers with Holland & Knight asked her to unseal them.
Cannon ruled in Gosney's case in May that there was no authority for the idea that government filters are improper. The use of filter teams involving independent government personnel has been approved by many courts.
In an unrelated case, the U.S. Supreme Court denied a separate petition on the same issue.
In Gosney's case, he and Michael Dreeben argued that the attorney-client privilege and work-product protections are sacrosanct. When the government's unwanted eyes are present, the intrusion is at its peak.
There has been controversy over the past decade over the use of filter teams in property searches.
The Justice Department revised its filter team policy after it was reprimanded by two district court judges in Miami for bungling a search of a major Medicare fraud suspect's office. The suspect, Philip Esformes, was represented by a couple of people.
Legal experts said it was clear from her rulings in the Trump and Gosney cases that she viewed the issue of filters differently.
The bottom line is what Joseph DeMaria said. The question of whether a special master should be appointed is not new. Special masters were appointed in the New York federal investigations of Trump's personal lawyers. He said that Cannon was given a reason to doubt the effectiveness of the taint team and that the judge had a basis to appoint the special master.
Gosney did not give the judge a reason to doubt the taint team and only asked for a blanket rule against taint teams. The argument is not a winning one.
Cannon granted the Trump legal team's request for an injunction to stop the Justice Department's criminal probe of about 100 classified documents recovered from his estate. The judge allowed the intelligence agency to continue its assessment of the risk of disclosure.
The judge allowed the special master to review everything seized from the former president's residence, including classified documents, other government records, executive privilege materials and attorney-client privileged information. On the day of the raid, the FBI seized 11,000 government documents, 1,800 additional items, including photos, letters and newspaper clippings, and 500 pages of attorney-client privileged correspondence.
The Justice Department prosecutors focused on Judge Cannon's decision to stop their use of the classified materials at Mar-a-Lago.
Cannon was partially overturned by the 11th U.S. Circuit Court of Appeals in Atlanta, which ruled that the Justice Department could continue to investigate the seized classified documents. The appeals court decided that the special master couldn't review the classified material. The court turned down the request from Trump's lawyers.
Cannon was criticized by the appeals court for finding that Trump would suffer "irreparable injury" if the Justice Department retained privileged materials. She said that the threat of future prosecution was often stigmatized. The risk did not cause irreparable harm. Potential defendants could ask a civil judge to exercise jurisdiction over criminal investigations if it did happen.
Cannon exceeded her authority when she put the Justice Department's classified documents investigation on hold during the special master's review.
While he supports the idea of using a special master to examine seized property, he believes Cannon's justification for appointing one in Trump's case was flawed. All of the potential attorney-client privileged documents seized at Mar-a-Lago would be turned over to the former president's legal team. The judge found that the Justice Department made a few mistakes before appointing the special master.
She used a mistake to appoint a special master, instead of just saying'return the privileged documents to the president'.
Cannon approved a protocol that allowed Gosney and his attorney toclaw back privileged documents from the investigators and the filter team.
Cannon added executive-privilege records and classified materials to Trump's special master review.
The review is much broader than previous precedents.
All Rights Reserved © 2024
