These are untested legal questions about the extent to which assertions of executive privilege, commonly invoked by sitting presidents to protect high-level deliberations and communications, can be applied to a former president in disagreement with a successor administration.
If the Justice Department appeals, the ensuing legal fight could take longer than any document review by the special master — and there’s no guarantee the government will prevail, particularly if the case had to go to the Supreme Court, to which Trump appointed three justices during his presidency and cemented a 6-3 conservative majority.
“The Supreme Court has said that the extent to which a former president can claim executive privilege against a sitting president is an open question,” said former federal judge Paul G. Cassell, who teaches at the University of Utah Law School. “Perhaps it will be the case that will determine and help settle this open question.”
U.S. District Judge Aileen M. Cannon’s decision – a confirmed Trump nominee days after the president Biden won 2020 election – says Justice Department cannot continue to review documents extracted from Mar-a-Lago on Aug. 8, or use them in its investigation, until special master has finished his exam. Trump’s legal team said a special master was needed to ensure a fair process.
Some legal experts who have followed the case have said the government could forego an appeal if the investigation is suspended for only a short time while the special master sorts through the documents.
Mary McCord, who served as the acting assistant attorney general for national security during the Obama administration, said there were legitimate legal reasons to appeal but also potential benefits in accepting the judge’s plan for review. independent. The involvement of a third party could ‘inoculate the department with full-throttle criticism for being the ‘fox in the henhouse'”, she said, suggesting it would quash complaints about government use. of an internal team to sort the sensitive documents seized.
McCord called the judge’s legal analysis “flawed,” but said the decision does not completely halt the investigation. Prosecutors can still interview witnesses and obtain additional search warrants and subpoenas, particularly for events that occurred before the search at Mar-a-Lago. A previous Justice Department filing in the case described the actions in May and June of two of Trump’s representatives, Evan Corcoran and Christina Bobb, in a way that suggested they may have obstructed the investigation.
Trump’s attorneys had told the government in response to a subpoena in May that they conducted a diligent search of all classified documents and turned over 38 other classified documents to government agents, according to a Justice Department filing. But the August search uncovered more than 100 additional classified documents scattered in more than two dozen boxes seized by officers.
In his ruling on Monday, Cannon said a special master would review the grasped documents identifying any record protected by solicitor-client or executive privilege. Cannon sided with Trump’s lawyers in concluding that Trump should be able to test whether the former president retains certain protections. She also raised concerns that some of Trump’s personal documents, including medical documents and tax correspondence, were mixed up with government records that agents deleted.
Legal experts called Cannon’s decision problematic because it upsets the usual course of a criminal investigation and suggests there is different rules for a former president. In a typical investigation, the target of a search would be entitled to a post-indictment hearing to challenge the validity of an underlying search warrant. In Trump’s case, the former president has not been charged and the investigation is ongoing.
“It’s an amazing insertion of the courts into what has always been an exclusively executive process,” said Steve Vladeck, professor of constitutional law at the University of Texas School of Law. “That’s just not the way our legal system is set up.”
If Cannon’s ruling stands, legal experts said, it would allow targets of investigations to disrupt law enforcement operations before a case is charged or tried. Orin Kerr, a criminal law expert at the University of California, Berkeley School of Law, predicted the government would appeal due to concerns about the separation of powers.
“If a suspect can go to court and get an order to stop the criminal investigation, it’s hard for the executive branch to work,” he added. Kerr wrote in a tweet.
It is not uncommon for judges to appoint special masters to review documents from searches of law firms, for example, due to solicitor-client privilege concerns. It’s happened in recent years after FBI searches of the homes and offices of Trump’s personal attorneys Rudy Giuliani and Michael Cohen.
But unlike those cases, the Justice Department told Cannon it had already screened the Mar-a-Lago documents using a “screening team” to separate potentially privileged records. The government has pointed out in court filings that a former president cannot invoke executive privilege to prevent the Justice Department from accessing documents because the department is part of the executive branch.
Cannon disagreed, saying the department is “arguably overstating the law.”
Two Supreme Court decisions in the 1970s involving former President Richard M. Nixon suggested that a former president could, under certain circumstances, assert executive privilege. The 1974 judges ruled against Nixon and ordered him to turn over the Oval Office tapes. But the parameters of those claims remain unresolved, and Congress later passed the Presidential Records Act, establishing that a president’s official records belong to the public, not the holder of the office.
In a separate dispute between Trump and Congress in January, the Supreme Court denied the former president’s request to stop disclosing some of his White House records to the congressional committee investigating the Jan. 6 attack. 2021 against the Capitol. The High Court order did not provide its reasons for rejecting Trump’s request.
Cannon said in his decision Monday that the justices had not ruled out the possibility that the interests of a former president would outweigh a sitting president in matters of executive privilege. She cited Judge Brett M. Kavanaugh, one of Trump’s nominees for the Supreme Court, who wrote separately in the Jan. 6 case.
“A former president must be able to successfully invoke presidential communication privilege for communications that occurred during his or her presidency, even if the current president does not support the claim for privilege,” Kavanaugh wrote. “To find otherwise would nullify the executive’s privilege for presidential communications.”
Cannon, a member of the conservative Federal Society, was confirmed by the Senate in a vote of 56-21 in November 2020 with the support of a dozen Democrats. She worked as an assistant federal prosecutor in Florida and as a law clerk to an appeals court judge. She is a graduate of Duke University and the University of Michigan Law School.
Cannon now sits on the Fort Pierce bench, but was assigned to Trump’s case through the court’s random lottery system in the Southern District of Florida, whose five divisions include courthouses in Fort Pierce and Florida. West Palm Beach. Judges from the five divisions can be assigned to cases in any of the courthouses. In that case, court documents show Trump’s lawsuit was filed in West Palm Beach, the same courthouse where a magistrate judge approved Mar-a-Lago’s search warrant. But it was then awarded to Cannon, who visited the West Palm Beach courthouse last week to hear arguments in the case.
Ryan Goodman, a law professor at New York University and a former special advocate for the Department of Defense, said Cannon’s opinion went out of its way to explain that court intervention was necessary because of the status of Trump as a former president.
“The opinion makes explicit what many of us have understood: there are special rules for former President Trump,” Goodman said. “But the justice system is supposed to be based on the proposition that no one is above the law and that we are all treated equally by the criminal justice system.”
Perry Stein and Spencer S. Hsu contributed to this report