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The odds are that the Justice Department will file an appeal in the Eleventh Circuit to challenge Florida federal district Judge Aileen Cannon’s order granting former President Donald Trump’s petition for a special master.
A special master is a court-appointed arbiter – generally, a neutral lawyer acceptable to both sides – who would review the documents seized by the FBI from Trump’s Mar-a-Lago estate on August 8. The seizures were pursuant to a warrant issued by Magistrate Judge Bruce Reinhart three days earlier.
On that point, it is curious that the former president did not seek the special master by filing a motion before Reinhart. One also wonders why, rather than appointing an outside lawyer (one who would have to have a high security clearance to perform the special master duties in a case involving seizures of highly classified intelligence), Judge Cannon did not give the assignment to either Reinhart or one of the 15 other magistrate judges who sit in the Southern District of Florida.
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Trump has colorably suggested that Reinhart is biased against him (because he recused himself from another litigation involving Trump). For its part, the Justice Department did not propose that the matter be referred to Reinhart or a different magistrate (because it believes the privilege-review process it unilaterally implemented, pursuant to Reinhart’s authorization, is sufficient). So the dispute has come down to whether a special master should be appointed, without much thought about other possible options.
The major controversy in the case, and what will likely drive DOJ to appeal, involves executive privilege.
In a post-Watergate case, Nixon v. Administrator (1977), the Supreme Court instructed that presidents retain some unspecified degree of executive privilege even after they are out of office. To my mind, this is a dubious suggestion.
In a later dissenting opinion (in the 1988 case of Morrison v. Olson) that history has proven prescient and that is very influential among constitutional conservatives, Justice Antonin Scalia explained that, in our system, all executive authority is reposed in the president – meaning, the incumbent president. Former presidents have no power at all, executive or otherwise.
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It seems irrational, then, to believe that a former president not only possesses some residual executive privilege but may assert that privilege against the executive agencies of the sitting president – the only officer in government who actually has executive power.
Not surprisingly, Trump has had no success trying to invoke privilege in his post-presidency. The courts have rejected his attempt to assert executive privilege against the House January 6 committee. And when former Trump adviser Steven Bannon was prosecuted for contempt, his reliance on Trump’s assertion of executive privilege as a rationale for flouting the January 6 committee’s subpoenas was rejected by the trial judge – after which Bannon was swiftly convicted.
All that said, though, the Supreme Court has never retracted its teaching in Nixon v. Administrator. The case remains a precedent from which Trump could properly argue that he retains executive privilege, and therefore that the Justice Department should not be able to use privileged documents in its investigation.
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Even if he is ultimately wrong about this (as I believe he is), the Justice Department should have gotten a ruling from the court before allowing investigators on the Mar-a-Lago case to be shown seized documents that are potentially covered by executive-privilege. Instead, DOJ decided on its own that Trump had no such privilege and allowed the documents to be revealed to the investigators without first seeking court approval.
In her ruling on Monday, Judge Cannon signaled her view that the Justice Department may, at a minimum, have overestimated the strength of their position that Trump has no executive privilege that can be asserted against the Biden administration’s investigative agencies.
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If the courts ultimately conclude that he does have executive privilege, it would spell problems for DOJ’s investigation. Law enforcement is not permitted to build a case on information that is privileged. After all, the point of a privilege is to maintain the confidentiality of the information covered by the privilege – which very much includes keeping it from government investigators.
Assuming there is an appeal, it is possible that the Eleventh Circuit will not reach the privilege issue. That appellate tribunal could sidestep it by finding that (a) Trump waited too long (two weeks) to seek a special master, (b) Judge Cannon lacked jurisdiction to appoint a special master under the circumstances, or (c) Trump lacks standing because the government documents at issue, even if they are privileged, are not his property – they’re the property of the government, under the Presidential Records Act.
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We should have more insight about next steps in the coming days. Under Judge Cannon’s ruling, the parties are supposed to propose special master candidates by Thursday, September 9. Meantime, the judge’s order has, for all intents and purposes, suspended the Mar-a-Lago investigation.
I doubt the Justice Department will quietly accept that. Expect a government appeal.
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