A federal judge’s ruling granting former President Trump’s request for a special master has generated a range of intense reactions from legal experts, who have called it unusual, lacking in legal reasoning, “absurd” and offering undue favoritism to a former president.
The ruling in favor of Trump by federal district court Judge Aileen Cannon has been a head-scratcher for many attorneys, who say the court left behind many unanswered questions while also blocking an unprecedented investigation of a former president.
“It does seem to reflect a fair amount of bending and stretching of the law in numerous different respects,” said Jeff Robbins, a former federal prosecutor and congressional investigative counsel.
Cannon surprised observers by indicating last month before she had heard any arguments in the case that she was inclined to grant Trump’s request.
It’s a detail that has gotten renewed attention, as experts say the ruling fails to deliver meeting the legal tests lawyers are trained to analyze while asking the special master to resolve major legal questions as Trump argues executive privilege should allow him to withhold executive branch documents from the current administration.
In her Labor Day ruling, Cannon repeatedly stressed optics as a rationale for having a third-party special master review the more than 10,000 documents taken during the search.
“A commitment to the appearance of fairness is critical, now more than ever,” she wrote, noting that Trump may gain little from the exercise.
“Plaintiff ultimately may not be entitled to return of much of the seized property or to prevail on his anticipated claims of privilege. That inquiry remains for another day,” she wrote.
The order puts the DOJ’s investigation on ice, barring investigators from reviewing any evidence until the special master is appointed and completes their review.
Robbins said in order to grant an injunction to block a party from taking an action, the plaintiff must show not only a likelihood of ultimately succeeding in the case, but that they would be irreparably harmed if the request was not granted.
“There was essentially not even lip service paid for these requirements. … That’s sort of, you know, frankly, injunction law 101,” he said.
Much of Cannon’s ruling focused on potential damage to Trump’s reputation that could stem from the investigation, musing that details about the investigation could be leaked to the media.
But much of what the public knows about the investigation has been through court-ordered unsealing of DOJ records as well as from Trump himself.
“And matter of fact, the only leak that has occurred in this is a leak by the former president himself of the existence of the search. So that to me is a glaring example of just ignoring the standards for granting an injunction,” Robbins said.
Others see the consideration of his status as a former president as inappropriately elevating Trump compared to others who would be unlikely to get similar treatment if their home were searched in the course of a criminal investigation.
“The judge said that she thought that the fact that Donald Trump is a former president gives him heightened reputational interests, that there’s more reason in this case to be worried about the reputational damage that a criminal charge could inflict than there is in a normal case. That strikes me as wrong and troubling in a country where nobody’s supposed to be above the law,” said David Alan Sklansky, a professor at Stanford Law School and an expert in the Fourth Amendment and constraints on prosecutorial power.
Sklansky said Trump has a greater ability than most people caught up in criminal investigations to air their side of the story.
“His brand at this point is kind of tied up in his battles against the government. So I think that he’s suffering less reputational injury than most people do when it’s announced that they’re the subject of a criminal investigation,” he added.
While the order spends ample time considering Trump’s arguments it spends relatively little considering the government’s argument that a special master would seriously hamper its investigation, covering one of the Department of Justice’s principal objections with just a few sentences.
But experts say some of the more perplexing aspects of the order are those surrounding executive privilege, warning the ruling sets a dangerous precedent for allowing a former executive to hamstring a successor.
The Department of Justice (DOJ) argued that Trump’s very claim that some of the documents were protected by executive privilege proves their point — that they are government property and must be maintained by the National Archives.
But Cannon said the DOJ “arguably overstates the law” on the limits a former president has, leaving it to the special master to review the documents for both attorney-client protected materials — a relatively common service they provide to the court — and materials covered by executive privilege, which is an entirely unprecedented role.
“It’s the kind of legal issue that courts and judges resolve generally, not special masters,” said Slansky, who himself has served as a special master.
While Cannon’s ruling directs the special master to consider executive privilege, she does not lay out how.
“Why would you outsource it? If you’ve got some basis for believing that these documents are protected by executive privilege, let’s lay out what the standard is,” Robbins said.
“It’s not enough to say ‘I’m not persuaded that that executive privilege can never be invoked by a former president.’ Okay. That’s fine. So what are the standards that you’re giving to a special master?”
Peter Shane, a law professor at New York University and an expert in executive privilege said he’s unsure what exactly the special master is supposed to assess.
“You don’t need a special master to identify whether the documents are potentially the subject of executive privilege. All of these documents, I assume, were communicated to the president or he wouldn’t have them,” he said.
But he and Sklansky also see major risks to allowing a former president to withhold documents from the current administration.
“That strikes me as completely wrongheaded because the government continues. And when we have a new administration come in, they have to continue the work of governing. And it strikes me as completely unworkable to say that when a new administration comes into office, they’re restricted from knowing what kinds of discussions went on in the previous administration, that official government documents can be shielded from the current administration. That just strikes me as completely unacceptable,” he said, adding that’s something courts should not be eager to take ownership of.
He noted that even Cannon doesn’t offer a wholesale endorsement of the idea, allowing the intelligence community to access the records so they can do their own damage assessment.
Shane said the issues are even more pressing when considering the national security information Trump has in the tranche of records.
He said it’s the constitutional duty of the president “to protect the national security from the moment of inauguration to the last minute of that person’s term.”
“Protecting the national security right now is not Donald Trump’s job; it is Joe Biden’s job. And the idea that he might be shielding information relevant to our national security from the current administration, whose constitutional job it is to protect the national security, is absurd. It’s an absurd claim,” Shane said.
The damage that could result from affording Trump any right to executive privilege in this case is something that could unfold for years, he said.
“It creates the idea that privilege belongs to a human being as opposed to the institution and the office of the presidency. That somehow the constitution imbues individual human beings with power in perpetuity — which is itself opposed to the idea of the rule of law and the idea that no one is above the law,” he said.
“The responsibility of taking care that the law be faithfully executed is a job that belongs to whoever is president now. Not who was president four or 12 or 16 or 40 years ago … It needs to be available to the current president to see the records of prior administrations in order that they can do their job to the fullest.”
Source: The Hill