September 8, 2022

Mar-a-Lago Special Master

“In a legal victory for former President Donald Trump, a federal judge on Monday granted his request for a special master to review documents seized by the FBI from his Florida home and temporarily halted the Justice Department’s use of the records for investigative purposes. The decision by U.S. District Judge Aileen Cannon authorizes an outside legal expert to review the records taken during the Aug. 8 search and to weed out from the rest of the investigation any that might be protected by claims of attorney-client privilege or executive privilege…

“Trump’s lawyers had argued that a special master, usually an outside lawyer or former judge, was necessary to ensure an independent review of records taken during the search and so that any personal information or documents could be filtered out and returned to Trump. In this case, the seized records ‘include medical documents, correspondence related to taxes, and accounting information,’ the judge’s order said.” AP News

Here’s our prior coverage of Mar-a-Lago. The Flip Side

See past issues

From the Left

The left criticizes the ruling, arguing that it is based on dubious legal grounds and sets a dangerous precedent.

“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…

“I [also] don’t really see any good rationale for why an interest in your personal papers is a reason for a special master when the government is entitled in a search warrant to [the] use of personal items that have relevance to the investigation, and when the government has said it would return items that don’t have relevance…

“Sometimes personal papers can actually have value, right? Particularly in a case where you’re trying to show knowledge and intent with respect to the mishandling of classified information. How the classified information might be comingled with personal papers, where it’s located, where it’s found, could be very telling with respect to the former President’s knowledge and intent.”

Mary McCord, New Yorker

“The investigation concerns whether Trump improperly retained government documents by unlawfully treating them like his personal effects and whether he lied to cover it up. Under the circumstances, any competent prosecutor — for what it’s worth, Cannon is a former prosecutor — would have to at least wonder whether Trump and his team deliberately intermingled the government documents among his personal belongings in order to make them harder for the Justice Department to locate and recover in a search…

“The ruling may seem modest in effect, and depending on how things unfold, it may turn out to be, but it introduces a bunch of avenues for Trump and his lawyers to exploit for delay or to otherwise complicate the government’s investigation.”

Ankush Khardori, New York Magazine

“Cannon addresses the departure from normal practice by inventing a new right for the former president, on the grounds that a post-indictment remedy would be insufficient for him to reclaim his good name. Leaving aside the question of whether her observation about the irreparable consequences of a delay in when he could assert a claim is factually supported… it is hard to see how her conclusion about harm would or should be cabined to Trump: Why would others under investigation not have the same claim?…  

“Is the extra protection of a special master—and the delay it entails—applicable to all public figures? Would we now have a new rule limiting investigations of government officials like Bill Clinton, as well as leaders of large corporations like Enron and Volkswagen and start-ups like Theranos? And if so, how is a rule that offers special privileges to the most advantaged members of our society consistent with providing equal justice for all? Cannon does not deal with any of this.”

Andrew Weissmann, The Atlantic

From the Right

The right argues that the ruling is reasonable in order to ensure the investigation is conducted properly.

The right argues that the ruling is reasonable in order to ensure the investigation is conducted properly.

Special masters are not at all rare in legal proceedings. ‘The appointment of a special master is not uncommon in the context of attorney-client privilege,’ Cannon wrote. ‘Nor is the appointment of a special master unheard of in the context of potentially executive privileged material. In fact, the Government itself recently contemplated and requested the appointment of a special master to review for both attorney-client and executive privilege.’…

“It's true. The government did just that, Cannon said, in a case involving the April 28, 2021, FBI search of Rudy Giuliani's New York apartment. Giuliani's lawyers argued that the materials taken involved attorney-client privilege, since Giuliani is an attorney, and executive privilege, since he was Trump's attorney. The government, as Cannon noted, agreed to a special master to resolve any privilege questions.”

Byron York, Washington Examiner

“Common sense says that, once Cannon scheduled a hearing, she must have wanted things frozen in place until she could rule — otherwise, why schedule a hearing? Instead, DOJ not only continued its review process but sped things along so that the process was finished (last) Monday — even before DOJ filed its responsive papers, and three days before the scheduled hearing…

“For at least a week prior to today’s ruling, and probably more, prosecutors and FBI agents have thus been poring over potentially privileged documents, using them for leads in furtherance of their investigation. If prosecutors and investigators are exposed to privileged information, rather than being walled off, they can be disqualified from further participation in the matter. If charges are based on investigative leads traceable to privileged information, those charges can be thrown out…

“This is why, for its own protection, the Justice Department should, at a minimum, have gotten a ruling from the court on the executive-privilege issue before beginning its filtering process… while it is Trump who sought the special master, the procedure protects the government as well: It minimizes the chance that government lawyers will be exposed to privileged information.”

Andrew C. McCarthy, National Review

“The order also does not halt the criminal investigation, only the use of the documents. Prosecutors can still interview witnesses on what was known to be the content of boxes, what steps were taken to allegedly move or conceal material, and other issues critical to establishing crimes of obstruction…

“Keep in mind that The Justice Department itself recognizes that it may have gathered some attorney-client privileged documents in this ridiculously broad search. It allowed the seizure of any box containing any document with any classification of any kind — and all boxes stored with that box. It also allowed the seizure of any writing from Trump’s presidency. Judge Cannon notes that the Justice Department’s own taint team missed privileged material and rejects the government’s assurance that it still caught the errors… the appointment of a special master in my view was the right thing to do.”

Jonathan Turley, Res Ipsa Loquitur

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