Trump’s Request For A Mar-A-Lago Special Master Was Granted

On Monday, a federal judge granted former President Donald Trump‘s request for a special master to evaluate evidence seized from his Florida home last month, throwing a monkey wrench into the Justice Department’s investigation into the possible mismanagement of papers from Trump’s White House. As a result of Trump’s victory, the investigating team from the Justice Department will be unable to examine the thousands of documents collected from Mar-a-Lago, some of which are confidential.

The Justice Department has called it “extraordinary” that US District Judge Aileen Cannon has given the green light for a special master to analyze all of the seized records for potential executive privilege concerns and information covered by attorney-client privilege. However, she did not agree with Trump’s claims that his constitutional rights had been treated with “callous disdain” throughout the search. Lessons from the judge’s decision and what comes next are as follows.

A Significant Win For Trump

The main point is straightforward: Trump just won a huge legal victory. Trump requested a special master to evaluate the data the FBI collected last month in a lawsuit, and now one has been appointed and has the authority to rule that certain materials are inadmissible to the investigation. Cannon agreed with Trump’s lawyers, who questioned whether investigators could be trusted to properly filter through the thousands of records obtained during the unusual search of the Florida club. The judge did not believe the Justice Department’s claims that its filter team had already removed any potentially privileged documents.

Trump's Request For A Mar-A-Lago Special Master Was Granted (1)
Trump’s Request For A Mar-A-Lago Special Master Was Granted (1)

Though the special master designation may only postpone the federal probe into the Mar-a-Lago documents, it adds an element of surprise and unpredictability to the proceedings. For example, the judge did not declare that any materials confiscated from the former president’s home had to be returned to him.

Immediate Next Steps Focus On Rules For A Special Master

Many crucial concerns concerning the special master’s operation were left unanswered by Cannon. She mapped out the course of action for the rest of this week and concentrated on finalizing the nitty-gritty details. She “conferred” with Trump’s attorneys and prosecutors on several major issues: Who exactly are the suggested successors to the special master position? The term “duties and restrictions” implies specifics, so what exactly are they? When and how quickly should they complete each step? When it comes to their compensation, how much can we expect them to make?

Each party has until this coming Friday to submit a “joint filing” answering these issues in detail. From what we’ve seen in this case, it doesn’t look like the two parties will settle on very much. They can both put their plans for the future of this on paper. When the joint file is received, Judge Cannon has promised to issue an order detailing “the particular details and mechanics of this (special master) review procedure” on time.

Whether “some confiscated documents constitute personal or presidential records,” she asked, and “whether certain seized personal things have evidentiary value,” she added as points of contention between the parties.

Plans to review for “executive privilege.”

Trump had previously stated that a special master review should exclude not just attorney-client privileged papers but also privileged materials held by the executive branch. The term “executive privilege” is used to refer to the practice of withholding from public disclosure certain communications between the president and his or her advisors or other members of the executive branch. Congressional investigations are not immune to disagreements over the scope of presidential privilege, which is especially murky when a previous president contended the privilege should apply. Still, the sitting president is not asserting it.

Trump's Request For A Mar-A-Lago Special Master Was Granted (1)
Trump’s Request For A Mar-A-Lago Special Master Was Granted (1)

The scope of the special master’s work is widened by Cannon’s decision, which mandates an examination of the papers on the basis of “executive privilege” issues rather than the customary attorney-client privilege assessment that occurs when a special master is appointed. In accordance with Cannon’s order, the special master will also review any documents that could be protected by the attorney-client privilege. She did not elucidate on the parameters the special master should be examining.

Cannon stated in her decision that the Supreme Court had not ruled out “the possibility of a former President overpowering an incumbent President on executive privilege grounds.” She referred to a Supreme Court decision from 1977 involving Nixon administration records and a Supreme Court order from earlier this year allowing the production of Trump administration records to House January 6 investigators as examples of the precedents she relied on.

Cannon cited a recent case in which the Supreme Court said that queries posed by a previous president attempting to assert executive privilege over materials for which that privilege has been waived by the incumbent are “unusual and raise serious and substantial issues.” Justice Brett Kavanaugh’s separate statement in that case, in which he said that if courts ruled that a former president could not “invoke the Presidential communications privilege for communications that occurred during his Presidency,

even if the current President does not support the privilege claim,” it would “eviscerate the executive privilege for Presidential communications,” was also cited by her. Trump’s claims of executive privilege may ultimately be unsuccessful, but Cannon argued that this “does not preclude a former President’s capacity to raise the privilege as an initial matter.”

Intelligence review will continue

The judge isn’t preventing the US intelligence community from analyzing the documents for national security risks. Director of National Intelligence Avril Haines told Congress last month that the intelligence agency will analyze “the possible harm to national security” Since mid-May, the intelligence community and FBI have been examining Mar-a-Lago records, CNN reported.

Trump's Request For A Mar-A-Lago Special Master Was Granted (1)
Trump’s Request For A Mar-A-Lago Special Master Was Granted (1)

While the FBI investigation involves at least three potential crimes — Espionage Act violations, obstruction of justice, and criminal handling of government records — the intelligence review focuses on whether the disclosure of material at Trump’s resort and residence could endanger sensitive intelligence sources.

Trump got special consideration as ex-president

The judge emphasized the “exceptional circumstances” of the special master dispute, which featured an “unprecedented” search of a former president’s home. She claimed a wrongful prosecution would bring “shame” and that the threat was more significant because Trump is a former president. “As a result of Plaintiff’s past position as President of the United States, the seizure is stigmatized,” she wrote. “A future indictment based on the returned property would cause irreparable reputational harm.”

Cannon put Trump in a unique class of defendants on other occasions. Trump’s dependence on “cooperation between past and incumbent administrations” also favored her intervention, she said. (The Justice Department has cited multiple examples of Trump’s staff slow-walking the deal) In a footnote rebutting the DOJ’s argument that special masters are normally appointed to conduct attorney office searches, Cannon wrote that she “didn’t see why same concerns wouldn’t apply, at least to a large degree, to a former president’s office and residence.”

What can the Justice Department do now?

The ruling doesn’t end the Justice Department’s probe. Trump faces legal trouble. The ruling will limit what investigators can do during the special master review. A Justice Department spokesperson said Monday that officials are “evaluating the opinion” The one-sentence statement didn’t mention an appeal, but that’s the next step for prosecutors.

Atlanta’s 11th US Circuit Court of Appeals would hear prosecutors’ appeals. The court features four Democratic full-time judges and seven Republicans, including six by Trump. Randomly selected judges will hear the appeal. Loser can ask an 11-member court to rehear the appeal “en banc.” The loser could appeal to the conservative-majority Supreme Court.

Trump's Request For A Mar-A-Lago Special Master Was Granted (4)
Trump’s Request For A Mar-A-Lago Special Master Was Granted (4)

DOJ authorities may challenge only part of Cannon’s finding. Andrew Weissmann, a former DOJ official, Robert Mueller team prosecutor, and outspoken Trump critic, tweeted that the Justice Department should “appeal quickly” the section of the order that bars investigators from using seized materials.

Judge Cannon is a Trump nominee — does that matter?

Federal judges often address matters involving their president. Cannon’s appointment by Trump and the fact that Trump brought this lawsuit are not grounds for recusal, though she might if she thinks it’s unfair. Trump politicizes the judicial branch by targeting “Obama judges” and claiming he expects his appointees to do legal bidding. Trump expects judicial allegiance, but most judges ignore his out-of-court remarks and focus on the facts.

How does DOJ’s so-called “60-day rule” for investigations come into play?

How the Justice Department applies the “60-day rule” to Trump-related investigations is an open topic. Internal DOJ protocol opposes public investigative steps 60 days before Election Day. Even because Trump is not a candidate, Trump’s backers say the department’s Trump papers inquiry violates this principle.

It’s unclear if DOJ was planning its documents probe with this regulation in mind, and if so, it’s also unclear if a special master will influence those preparations. The investigation is new. Prosecutors said so in court. Former agency officials say the types of attorneys openly involved in the probe — mostly from the DOJ’s National Security Division — signal it’s early.

Trump's Request For A Mar-A-Lago Special Master Was Granted (4)
Trump’s Request For A Mar-A-Lago Special Master Was Granted (4)

Final Lines

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