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A federal judge on Monday granted former President Donald Trump’s request to appoint a special master to examine documents that FBI agents found at his Florida home as part of the ongoing investigation into his handling of the documents after leaving office. The judge, Eileen M. Cannon, who was appointed by Trump in 2020, ruled that the Justice Department would also have to suspend use of the materials in its investigation until the special master reviewed them for attorney-client privilege and executive privilege. power. It remains unclear whether the DOJ will appeal Cannon’s decision; both sides have until Friday to submit candidates who could serve as special master.
To find out what this means for the DOJ’s investigation of Trump, I recently spoke by phone with Mary McCord, a former assistant U.S. attorney for the District of Columbia who served as acting assistant attorney general for national security from 2016 to 2017. She is is currently 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 dubious legal reasoning in Cannon’s argument, why the Justice Department may be reluctant to appeal her decision, and how much of a threat the appointment of a special master might pose to a possible criminal case against Trump.
What was essentially Justice Cannon’s legal reasoning here, and what did you make of it?
There are many different parts to this question because she analyzes the request for a special master in several different ways. Does she have equitable jurisdiction? Are the factors present that would support the appointment of a special master? The factors that justify an injunction – are they present? So there are different tests for all these things and she claims to apply them. But what I see as the main concern, reading her opinion, is the seeming fairness of a case involving a former president. And I think she’s using her equitable power to try to insert this step of using a special master, which, at least in her opinion, will best ensure a fair trial for the former president.
And what do you do with that argument?
From a legal point of view, I think the government will have good grounds to appeal against this order. I don’t think it’s really well-grounded legally, but there is some leeway. The DOJ is going to 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 somehow take advantage of 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 were reviewed by an independent special master. And at the end of the day, a lot of the material that the department is allowed to use is something that they could say, “Hey, it’s not just our filtering team that said we can use this material.”
The department must also consider and consider whether it is worth appealing. One possibility is that during the appeal everything will stop. The second option is for the special master to proceed with the review and even complete it before the appeal is fully briefed. A third option is for the department to request an emergency stay of the lower court’s order by going to the Eleventh Circuit and saying, “We note our appeal of the decision, and pending a decision on the merits of the appeal, we” re-request a stay of the injunction on -the lower court,” which would basically mean not enforcing the department’s order or preventing it from using and reviewing the materials. But all this is further prolonging the litigation.
So you think the appeals process will take longer than the Special Master going through these documents?
Yes
My understanding is that granting special review in chief for executive privilege is a more extreme step than for attorney-client privilege. Is this true?
There are really three things going on here. The Court appears to express concern about relying solely on the government to conduct a review of the attorney-client privilege filter. Justice Cannon also seems concerned that the government is keeping purely personal documents of the former president that raise no privilege issues at all. And she seems at least willing to entertain the idea that she might have documents for which executive privilege could be claimed. It is more unusual to appoint a special master to review things like executive privileges.
The usual way to appoint a special master is in a case that is extremely document-intensive and where there is really good reason to believe that there will be a lot of attorney-client privilege documents at the location being searched, such as a lawyer’s offices. It’s less common in other circumstances, and there certainly aren’t that many people who could assert executive privilege, because it’s executive privilege that can only be asserted by the executive, and usually only by the executive. .
The DOJ essentially argued that the department itself was the executive branch, and so the idea that there was an executive privilege issue here seemed kind of ridiculous. Don’t you agree?
There is certainly no problem with the separation of powers because it is all in the executive branch. Earlier this year, in Trump v. Thompson, Judge Brett Kavanaugh indicated that there may be some room for a former executive to assert executive privilege. I think it’s very, very unlikely that anything Trump would claim about the documents found at Mar-a-Lago would end up being upheld because, to the extent that there’s any privilege, the views of the current president — President Biden — will be entitled to great weight. We know this from previous Supreme Court precedent, Nixon v. General Services Administration, and the government’s interest in the documents here. We are talking about both a criminal investigation and a national security investigation. The government’s interest in these documents would be very great.
The judge also appeared to argue that the sheer volume of the material meant a special master could review it more quickly than her court. What do you think of this argument?
Many cases involve more material than has been seized here, but I can’t say what her case looks like, and if she feels she can’t get to it in time, then sometimes a special master will 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 submission, it’s going to want to insist on some pretty short deadlines from any special master to complete the review, because what the government doesn’t want to have this procrastination. The government was able to get through all the materials in three weeks or less. So there’s no real reason why a special master can’t do that as well, even if it means having more than one person assigned to the special master’s team—recognizing, of course, that that person and each team don’t only need to have top secret clearance but also be read in all the different special access programs.
Judge Cannon appeared to go out of his way to emphasize the unique nature of this case and that Trump is a former president. Do you think it is appropriate? I mean, obviously he’s a former president. This case is unique. It would be foolish to deny it. At the same time, you want to make sure that people get the same benefits under the law.
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