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Where the Trump Investigation Goes After a “Poor” Judicial Decision

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Where the Trump Investigation Goes After a “Poor” Judicial Decision

On Monday, a federal judge granted former President Donald Trump’s request to appoint a special master to examine the documents that F.B.I. agents found at his Florida home as part of an ongoing investigation into his handling of the documents since leaving office. The judge, Aileen M. Cannon, who was appointed by Trump in 2020, ruled that the Department of Justice would also have to cease using the materials in its investigation until the special master had reviewed them for attorney-client privilege and executive privilege. It remains unclear whether the D.O.J. will appeal Cannon’s decision; both sides have until Friday to present candidates who could serve as special master.

To help understand what this means for the D.O.J.’s investigation of Trump, I recently spoke by phone with Mary McCord, a former Assistant U.S. Attorney for the District of Columbia, who was the acting Assistant Attorney General for National Security from 2016 to 2017. She is currently the executive director of the Institute for Constitutional Advocacy and Protection at Georgetown Law. During our conversation, which has been edited for length and clarity, we discussed the questionable legal reasoning in Cannon’s argument, why the Justice Department might be reluctant to appeal her ruling, and how big a threat the appointment of a special master might pose to a possible criminal case against Trump.

Early Newspaper

What, essentially, was Judge Cannon’s legal reasoning here, and what did you make of it?

There are a lot of different parts to that question because she analyzes the request for a special master in a number of different ways. Does she have equitable jurisdiction? Are the factors that would support the appointment of a special master present? The factors that justify an injunction—are those present? So there are different tests for all of these things, and she purports to apply those. But what I see as the overriding concern, reading her opinion, is the appearance of fairness in a case involving a former President. And I think that she is using her equitable authority to try to insert this step of using a special master that, at least in her view, will best assure a fair process for the former President.

And what do you make of that argument?

Legally, I think the government would have good grounds to appeal this order. I don’t think that it’s really well founded legally, but there’s some leeway. The Department of Justice will have to really think carefully about whether it wants to appeal and potentially drag this out even longer, or whether it just wants to go ahead and comply with this order.

The department could, in some ways, benefit from the distance that an independent special master would provide, and inoculate itself against some criticism, political criticism, now and in the future, if this material is reviewed by an independent special master. And, ultimately, much of the material that the department is allowed to use is something about which they could say, “Hey, it wasn’t just our own filter team that said we could use this material.”

The department also has to consider and weigh whether it is worth appealing. One possibility is that during the appeal everything halts. A second possibility is that the special master goes forward with the review and might even complete it before the appeal is fully briefed. A third option is the department could seek an emergency stay of the lower court’s order by going to the Eleventh Circuit and saying, “We’re noting our appeal of the ruling and, pending a decision on the substantive merits of the appeal, we’re seeking a stay of the lower court’s injunction,” which would mean basically not imposing the injunction on the department, or not preventing it from using and reviewing the materials. But all of these things are additional protraction of the litigation.

So your sense is that an appeals process would take longer than it would for the special master to go through these documents?

Yes.

My understanding is that granting special-master review for executive privilege is a more extreme step than it is for attorney-client privilege. Is that right?

There’s three things going on here, really. The court seems to express concern about relying solely on the government to do the attorney-client-privilege filter review. Judge Cannon also seems concerned about the government retaining purely personal documents of the former President that don’t raise privilege issues at all. And she seems to be at least willing to entertain the notion that there could be documents for which executive privilege might be asserted. It is more out of the ordinary to appoint a special master to review for things like executive privilege.

The ordinary course of appointing a special master is in a case that is hugely document-intensive and when there’s really good reason to believe that there will be a lot of attorney-client-privilege documents in the place searched, such as the offices of an attorney. It’s less common in other circumstances, and certainly there aren’t that many people who could assert executive privilege, because it is a privilege of the executive, which is assertable only by the executive, and typically only by the incumbent executive.

The D.O.J. essentially argued that the department itself is the executive, and so the idea of there being an executive-privilege issue here was sort of on its face ridiculous. Do you disagree?

There’s certainly no separation-of-powers issue, because it’s all within the executive branch. Earlier this year, in Trump v. Thompson, Justice Brett Kavanaugh indicated that there may be some room for a former executive to assert executive privilege. I think that it’s highly, highly unlikely that anything that Trump would assert with respect to the documents found at Mar-a-Lago ultimately would be sustained, because, to the extent that there is some privilege, the views of the incumbent—President Biden—would be entitled to great weight. That we know from prior Supreme Court precedent, Nixon v. General Services Administration, and the government’s interest in the documents here. We’re talking about both the criminal investigation and a national-security investigation. The government’s interest in these documents would be very high.

The judge also appeared to be arguing that the sheer volume of the material meant that a special master could review it more quickly than her court could. What do you think of that argument?

A lot of cases involve more materials than were seized here, but I can’t say what her docket looks like, and if she thinks she can’t get to this in a timely fashion then sometimes a special master would come into play.

On Friday, if the government doesn’t make an immediate appeal, or if it does but still goes ahead and makes the filing, it will want to be pressing for some pretty tight timelines on any special master to complete the review, because what the government does not want to have is this dragging out. The government was able to get through all of the materials in three weeks or less. So there’s no real reason why a special master shouldn’t be able to do that as well, even if it means having more than one person appointed to the special master’s team—recognizing, of course, that this person and any team would not only have to have top-secret clearance but also be read into all the various special-access programs.

Judge Cannon seemed to go out of her way to stress the unique nature of this case and that Trump is a former President. Do you think that’s appropriate? I mean, obviously he is a former President. This case is unique. It would be silly to deny it. At the same time, you want to make sure people are given the same benefits with regard to the law.

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Where the Trump Investigation Goes After a “Poor” Judicial Decision