If I were the judge on the case, I’d be furious.
If I were the judge on the case, I’d be furious.
T he Trump legal team’s inexplicable delay in seeking court intervention, in the form of a so-called special master, has had the predictable consequence: Even before the court could rule on the belated request, the Justice Department completed its review of the documents and made unilateral determinations about what was potentially privileged.
The DOJ’s “privilege-review team” has presumably disseminated what it determined to be the non-privileged documents (the vast majority of what was seized) to the “case team” (i.e., the prosecutors and agents working on the investigation). As a result, even though the Trump team’s application for court intervention had merit, the Justice Department has laid the groundwork to argue that the point is moot. In fact, case prosecutors seem poised to blast the former president and his legal team, having obtained leave to file a lengthy submission on Tuesday rebutting their factual and legal claims.
If I were the judge on the case, I’d be furious.
Of course, I’m not the judge on the case. I am an analyst — and one who does not believe the Justice Department intends to prosecute Trump for mishandling classified information or records-retention violations. Therefore, I’m not surprised that prosecutors are living dangerously. But it’s worth observing that they are being presumptuous, heedlessly so in my view.
Understand: Although it’s the Trump camp that moved for a special master — i.e., a court-appointed arbiter to make determinations about what documents are privileged, rather than allowing the Justice Department to do this unilaterally — such a procedure protects the government’s interests, too. Prosecutors and investigators who are exposed to a suspect’s privileged information may be disqualified from participating in any prosecution. If privileged information is found to have informed investigative or charging decisions, it is possible that charges could be dismissed. Appointment of a special master can forfend these problems.
Of course, if you’re not planning on bringing charges, you don’t pause much over such concerns.
The Justice Department has been extremely aggressive here. First, note that in the warrant affidavit (at pp. 31-32), the DOJ acknowledges only that Trump may have attorney-client privilege (ACP). To the contrary, Trump is claiming both ACP and executive privilege — based, as we’ve noted in other contexts, on the Supreme Court’s post-Watergate case, Nixon v. Administrator (1977), which instructed that former presidents maintain some unspecified quantum of executive privilege over materials generated by their presidency. As the Court put it:
The confidentiality necessary to this exchange [of “full and frank submissions of facts and opinion” between the president and his advisers] cannot be measured by the few months or years between the submission of the information and the end of the President’s tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President’s tenure. [Emphasis added. Citations and internal quotations omitted.]
To be sure, Nixon elaborated that an incumbent president’s assessment of the prior president’s privilege assertion was entitled to great weight. Ergo, in our present case, President Biden’s decision not to support former President Trump’s privilege invocation is significant. But is it dispositive? The Justice Department is making a giant leap in concluding that it is. To be clear, I believe prosecutors are probably right about that. Still, it’s no sure thing. (Compare, e.g., Justice Brett Kavanaugh’s opinion, here.)
Yes, the D.C. Circuit Court of Appeals (affirmed by the Supreme Court) relied heavily on Biden’s opposition to Trump’s privilege claims in deciding that certain Trump presidential materials should be disclosed to the House January 6 committee. But Biden was not making a blanket waiver of any Trump privilege claims; he was making a narrow waiver, specifically related to the investigation of the Capitol riot.
The D.C. Circuit did not hold that Trump had no conceivable claim of executive privilege. That question was not raised. Yet, the DOJ seems to be assuming that it was not only raised but decided conclusively — as is the Acting National Archivist Debra Seidel Wall, whose May 10, 2022, letter rejected Trump’s privilege claim on the advice of Biden’s Justice Department.
Since this issue has not been decided by the courts, it would have been better if the Justice Department and FBI had flagged it for the court in the warrant affidavit. They should have explained to Magistrate Judge Bruce Reinhart that they were taking the position that Trump had no executive privilege, and therefore that the special “filter” procedures for handling privileged information did not have to account for executive privilege — only attorney-client privilege. After all, as we’ve discussed in connection with classified FISA proceedings, when the government is permitted to make an ex parte investigative application, with the suspect given no notice and no opportunity to be heard in opposition, the Justice Department has a heightened obligation to be forthright with the court. But the Justice Department does not appear to have alerted Reinhart to the scope-of-privilege issue (unless it did so in what’s been redacted, which seems unlikely). There is, moreover, no indication that Reinhart raised the question of executive privilege on his own.
Why wouldn’t the DOJ highlight the issue? That seems obvious: If executive privilege is viable, it would block from DOJ review a much broader array of documents than would be blocked by attorney-client privilege. It would potentially have covered all conversations Trump had with his advisers, conversations subordinates had to carry out policy, and work product flowing therefrom. The documents that are covered only by ACP are, no doubt, a small subset of that.
This is worth noting because the Justice Department has already gotten through its review of what it deemed to be privileged information — by assuming that what was potentially privileged was much narrower than what Trump claims is privileged.
On Monday afternoon, the New York Times reports, prosecutors informed Judge Aileen M. Cannon (the federal district judge in Florida before whom Trump’s petition for a special master is being litigated) that the privilege-review team has finished its work. By the terms of the procedures outlined in the warrant affidavit, once that team “determines that documents or data are not potentially attorney-client privileged, they will be provided to the law-enforcement personnel assigned to the investigation.”
In other words, what’s the point of having a special master? The Justice Department is not only saying there is no point, it is making sure there is no point. Because the DOJ continued with its privilege review, even as the court said it wanted to consider installing a special master, the point is moot. That is, the thing the special master would have overseen — namely, the transfer of documents to the investigative team only after ensuring that privileged materials were not included — has already happened.
This is Justice Department hardball. Remember, in the Hillary Clinton emails case, the DOJ purported to be so fearful of impinging on the attorney-client privilege that, far from seizing evidence by search warrants, it engaged in indulgent negotiations and allowed the Clinton team to impose conditions on the FBI’s examination of evidence.
Not so with Trump. Here, despite knowing that a former president of the United States was seeking court intervention, the DOJ rushed through a unilateral privilege-review process. Not only did the DOJ ignore the scope of Trump’s privilege claims, it quite intentionally frustrated the capacity of the court to supervise the review of potentially privileged documents.
On the other hand, the DOJ will surely counter that: (a) Prosecutors and the FBI made full disclosure of their intentions to unilaterally decide privilege issues when they submitted the search-warrant application to Magistrate Judge Reinhart; (b) the Trump team sat on its hands for two weeks rather than promptly seek a special master when it knew the Justice Department was performing this review; and (c) Judge Cannon did not grant Trump’s request that the court instruct the Justice Department to cease and desist its review until the court could sort out the special-master issue.
I want to focus on (c). To repeat, if I were the judge, I’d be livid.
It does not appear that Judge Cannon expressly denied the Trump team’s cease-and-desist request. To recap, Trump’s initial motion for a special master was deficient. The judge instructed Trump’s counsel to clarify it by last Friday. The lawyers did so, making various claims for relief. Among these, they asked the court to direct the Justice Department to suspend the privilege review.
Preliminarily, Cannon indicated that she believed the motion for a special master had merit, and that the government should provide Trump with a more detailed inventory of the property seized from Mar-a-Lago. But being cautious, she wanted to hear from the Justice Department and directed that the DOJ respond by Tuesday (August 30), in anticipation of a hearing Cannon planned to hold on Thursday (September 1).
To summarize: As tends to happen in complex litigation in a compressed time frame, the judge did not rule one way or the other on Trump’s cease-and-desist motion. I sense that she thought she’d made clear to the government that it should not do anything that would change — and, especially, irretrievably change — the status quo. The DOJ should just file its response Tuesday, be ready for a hearing Thursday, and do nothing of consequence in the interim.
To the contrary, the Justice Department acted in a way that makes Thursday’s hearing pointless. That seems awfully cheeky.
As noted, Cannon did not explicitly rule, one way or the other, on Trump’s cease-and-desist request. In that situation, I believe that any scrupulous DOJ prosecutor, before allowing the DOJ’s review of Mar-a-Lago documents to continue, would have felt obliged to inform the court that, having gotten no ruling on Trump’s cease-and-desist request, the Justice Department intended to proceed. That way, if the judge had inadvertently overlooked Trump’s cease-and-desist request, she’d have had a chance to rule on it, one way or the other, before the DOJ took actions that would undermine the judge’s ability to decide the matter. (Federal judges typically do not leave litigants to wonder what silence means — they explicitly grant or deny requests for relief.)
That was not what this Justice Department opted to do, despite being led by a highly experienced former federal judge. In these unprecedented circumstances, though one would think the byword would be caution, the Justice Department just put its head down and bored through its privilege review, heedless of whether this was consistent with the court’s wishes.
Many judges would get pretty steamed about that. It will be interesting to observe how Judge Cannon reacts. For now, I would simply say that, if the Justice Department’s filter team — inadvertently or not — passed along to its investigative team materials that were privileged, this would mainly be a problem only if the government intended to prosecute. The investigators’ exposure to privileged information might trigger disqualification of “tainted” prosecutors or dismissal of charges.
By contrast, if there isn’t going to be an indictment, then there’s nothing much to worry about. The government can afford to be very aggressive, both in its narrow construction of privilege and in its determination to bull through the privilege-review process without waiting on such inconveniences as judicial review. The Justice Department can afford to irritate the court if there is not going to be a courtroom prosecution.
Again, I don’t think the Justice Department intends to prosecute Trump on classified information and records-retention offenses. I think the government just wanted its documents back — to restore order, to conduct a damage assessment regarding any national-security compromises, and to assess whether any documents bear on the DOJ’s January 6 investigation.