Respect for the law

Dear Readers: This country is in trouble. There are those who worship Donald Trump, as a white-Christian savior; others label “Trumpists” as semi-fascists. These are the bellicose voices in our body politic, fewer of us congregate somewhere in between – it is “us against them.”

Diametrically opposed ideological camps is a threat to our democracy, yet the real danger is the erosion of respect for the law. We are a nation of laws; we only remain as strong as our belief in them.

Our communal definition of justice is morphing into partisanship. It is not good, the Supreme Court is being held in low esteem after the stake driven through Roe v. Wade. Protesters seeking out Justice Brett Kavanaugh at dinner (although the incident was overblown), over his vote to overturn established precedent, does not speak well for our country.

It is not a good thing the police departments were pinatas for angry marchers condemning the killings of Breonna Taylor, George Floyd, and other minorities. Black Lives Matter may be a necessary clarion call for justice and racial equality in policing, as a movement, it divides us.

The history of police departments is not pretty; many ugly acts have been committed under the veneer of “justice.” Still, modernity has professionalized policing; the vast majority of law enforcement officers are good people bravely serving our communities. Bad apple officers must be weeded out, police must be retasked to be protectors of communities instead of ATM machines for local governments, these negativities cannot be the norm.

The ongoing legal drama in South Florida, over the search of Mar-a-Lago, is increasingly having the same effect from the Right. The legal circus in District Court Judge Aileen Cannon’s courtroom is unprecedented and is increasingly a necrotizing poison to the law.

This is a travesty. The search was unquestionably legal and routine; it is what goes on every day in policing, and there are serious issues about our national security on top of it. Documents were seized because (even if declassified) they belong to us – the people – not a former President.

Arguably, swept up in the search, were documents protected by Attorney-Client privilege. Mr. Trump and his cadre of lawyers know what was taken. Still, NOTHING was presented to Judge Cannon, from which she could find ANYTHING that has attorney-client ramifications (like, legal memos in the tranche of documents seized by the FBI).

Special Masters are appointed by judges to assist them with sorting through legal complexities, like sorting through discovery disputes. It is common to appoint one when an attorney’s office is searched – as what happened with Michael Cohen – to make sure that attorney-client documents are segregated from potential evidence. And, not every communication with an attorney is protected, as the crime-fraud exception obliterates any privilege

What is close to unprecedented is to ask a Special Master to consider if there is privileged material in a client’s office. If Judge Cannon wants to give this extra-deference to Mr. Trump, as a former President, her decision is curious, though not an abuse of her judicial discretion.

Asking a Special Master to consider what is protected by Presidential Privilege, as Judge Cannon has done, is legal fantasy. Presidential Privilege is afforded to a sitting President while in office. Joe Biden is President, not Mr. Trump, the latter’s privilege evaporated at noon on January 20, 2021; it no longer exists.

The most frightening aspect of Judge Cannon’s decision is about classified and/or national security materials. DOJ asked her to permit them free rein to hold and review them. It provided a sworn affidavit of the danger to our country if they are denied access; the Trump team provided NOTHING other than speculating not everything marked classified is still so. Judge Cannon with zero evidence, “found” that classification status as speculative, although the only evidence were the markings and DOJ’s affidavit.

Which brings me to the real danger. Judge Cannon, a member of the Judicial Branch, is denying the Executive Branch the ability to protect us. We have tripartite co-equal branches of government – a President cannot tell a judge how to rule on a case, nor can a judge tell the President how to run the country in carrying out the law.

Moreover, Judge Cannon may be honestly applying pretzel legal logic, however, she is a forum-shopped lame duck appointee by Mr. Trump to the bench. This smells like justice bought and paid for. This is not “judicial restraint” and has a foreboding outcome.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami. Owner of Rockefeller Law Center, Jim has been in private practice since 2000. E-mail your comments or confidential legal questions to jim@rockefellerlawcenter.com.

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