What to make of Trump’s request and the Justice Department’s objections to it.
What to make of Trump’s request and the Justice Department’s objections to it.
I had a lengthy column Wednesday analyzing the Justice Department’s Tuesday night court filing opposing former president Trump’s motion for a special master to oversee prosecutors’ review of documents that may be privileged — a review process (as we observed earlier on Tuesday) that the DOJ has already completed, inducing prosecutors to stress that such an appointment would be pointless.
My Wednesday column focused on the government’s obstruction evidence and why, in my view, it dramatically increases the likelihood of a Trump indictment. Here, I want to look at some legal issues that the prosecutors address. At the end, I’ll discuss the tea leaves we’re reading based on Thursday afternoon’s indecisive hearing before Judge Aileen Cannon.
Special Master
As we’ve detailed (here and here), the government’s court submission late Tuesday night (hereafter, “Gov’t Mem.”) was occasioned by a lawsuit filed by the Trump legal team, seeking a special master — a court-appointed arbiter who would review the materials seized pursuant to the search warrant from Mar-a-Lago to ensure that privileged documents are not revealed to the prosecutors conducting the criminal investigation.
The Justice Department objects to this on five grounds: (a) Trump has no standing; (b) to the limited extent that a former president may have authority to invoke executive privilege, it may not be invoked against the executive branch; (c) having failed to comply with the Presidential Records Act (PRA), Trump should not be heard to invoke its executive-privilege provisions, which do not alter the constitutional-privilege calculus in any event; (d) only a minimal amount of potential attorney-client privileged material was seized, so a special master is unnecessary; and (e) the petition is moot because Trump waited too long to file it, while in the interim, the Justice Department’s “filter team” completed its review and provided non-privileged materials to the case prosecutors.
Let’s take them in that order.
Standing
The government contends that Trump has no business being in court. Essentially, he has made a motion for the return of seized property under Rule 41(g) of the Federal Rules of Criminal Procedure. But it’s not his property, prosecutors point out. It’s the government’s.
A little background on the robed players in this drama. Judge Cannon is a full-fledged, presidentially appointed, Senate-confirmed, Article III United States district judge. By contrast, though it has become customary to refer to magistrate-judges as “Judge [name],” Reinhart is not an Article III judge; magistrate judges are instead judicially appointed officials who help the district judges get through their work.
One of the services that magistrate judges perform on the district court’s behalf is to rule on search-warrant applications, granting warrants if probable cause is shown and the warrants otherwise comply with federal requirements. Consequently, both the Justice Department and Judge Cannon herself have wondered aloud why Trump didn’t file his motion before Magistrate Judge Bruce Reinhart, who issued the search warrant. At this stage of the game, if a person who has not been charged with a crime objects to a search warrant or the manner of its execution, the usual response would be to file a Rule 41 motion with the magistrate judge who issued the warrant. Then, if that motion were denied, the person might try to appeal to the district court. Or the person could wait to see whether charges were filed; if they were, the person could then use any alleged warrant impropriety as grist for a motion to suppress the evidence seized.
Trump, instead, filed a separate civil lawsuit. Manifestly, he was trying to get the matter away from Reinhart, whom he argues is biased against him, Reinhart having earlier recused himself from a Trump lawsuit suit against Hillary Clinton. Trump supporters accuse the Justice Department of having forum-shopped in order to apply to Reinhart for the warrant. This makes things awkward for Judge Cannon, who is a Trump appointee, because some people assume that Trump, in response, sought out a friendly judge.
To the contrary, I suspect that Reinhart caught the warrant case because he was on duty that day. I don’t know why he didn’t recuse. (He hasn’t explained why it was somehow appropriate for him to deal with the warrant for Trump’s home after recusing himself from Trump’s Clinton case.) Still, though we have not seen the most important parts of the probable-cause affidavit, it appears that the warrant was validly issued. Indeed, most of the arguments against the search contend that the Justice Department, in its discretion, should have used less intrusive means, or at least drawn the warrant more narrowly, not that probable cause was lacking or that the government did not have a technical legal basis to search for all government records and rummage through personal property.
I also suspect that Trump’s civil suit was assigned to Judge Cannon as a result of the district court’s random-assignment process. The fact that she is a Trump appointee means that she is probably a judicial conservative, but it doesn’t mean Trump could pick her out of a lineup, let alone that she has any connection to the former president that would call her impartiality into question. (Normally, such appointees are better known to the U.S. senators in their state than to the White House.)
Let’s put all that aside, because I don’t believe we are going to have a food fight over forum shopping. The Justice Department’s main line of attack is not that the lawsuit is improperly filed. It is that Trump has no standing, regardless of the formal vehicle by which he asserts his claims.
Very simply, under the Presidential Records Act (PRA), government files, including presidential records and classified intelligence, are the property of the United States government, not of the former president during whose tenure the files were generated. Since Trump does not own or lawfully possess the government records that have been seized, the Justice Department argues that he has no right to seek the return of the property.
Of course, some of the property seized was in fact Trump’s personal property. One of the three passports seized, for example, was his (expired) personal passport. (The other two were official passports for government business, one of which was expired.) As prosecutors argue, however, there is no right at this early stage to the return of property that was seized within the terms of the warrant and that may be relevant evidence. The passports were within the extremely broad confines of the authorized search, and the government contends that they are probative of Trump’s mishandling of national-defense information (under the Espionage Act), which they allege was strewn among personal items in places where it wasn’t supposed to be. Consistent with that theory, the Justice Department on Friday disclosed a more detailed inventory of items seized during the search, illustrating the intermingling of classified documents, other government records, and personal property. In any event, prosecutors say they returned the passports to Trump as a discretionary accommodation, not because the law required it. (Gov’t Mem., p. 12, n. 6.)
Trump may have colorable arguments that the warrant was overbroad (though, as just noted, the government has counterarguments). The time for making them is not now; if and when he is charged, he can move to suppress evidence seized at Mar-a-Lago.
Executive Privilege
In earlier columns (here and here), I related that the acting national archivist, Debra Steidel Wall, in purporting to exercise President Biden’s power to assert or decline to assert executive privilege, had theorized that former presidents have no privilege absent the support of the incumbent president. The Justice Department also appeared to be taking this sweeping position when it sought the warrant: In the affidavit, explaining the screening procedures that would be followed to avoid exposing case prosecutors to privileged information, the DOJ acknowledged only that Trump had attorney-client privilege, not executive privilege.
This was an overly aggressive position. The Supreme Court surmised in Nixon v. Administrator (1977) that former presidents do retain some power to assert executive privilege over documents from their presidencies. That power is explicitly recognized in the PRA. Perhaps not surprisingly, then, the DOJ retreated somewhat in its Tuesday-night submission. It now posits the more persuasive argument that, whatever executive privilege a former president arguably retains, the privilege may not be invoked against the executive branch itself. Executive privilege is not a personal confidentiality grant; its purpose is to serve the legitimate confidentiality interests of the executive department of government. Ergo, prosecutors contend, it may not be asserted in the absence of support from the incumbent president and in a manner that would frustrate the executive department’s core responsibilities (which include, for example, assessing any damage to national security caused by the mishandling of classified intelligence).
Relatedly, Trump sought to draw support for his privilege claims from the statutory PRA provisions (here and here) that recognize a former president’s capacity to assert executive privilege. The Justice Department counters, I believe correctly, with two points. First, having retained the disputed presidential records and thus failed to comply with the PRA, Trump should not be heard to claim the benefit of PRA terms that assume compliance by former presidents. Second, the PRA explicitly states that it does not expand any “constitutionally-based” privilege. Executive privilege is constitutionally based. Therefore, the mention of executive privilege in the PRA does not change the above-discussed constitutional analysis under Nixon v. Administrator (i.e., the privilege may not be asserted against the executive branch itself).
No Need for Special Master
Assuming, as I do, that the DOJ is correct that Trump may not assert executive privilege against the executive branch, what would remain is attorney-client privilege. The Justice Department represents that the privilege team (government lawyers who are not assigned to the case and whose only responsibility is to filter out privileged information so that it is not revealed to the case prosecutors) has gone through all of the seized materials. What was identified and has been segregated, the DOJ says, turns out to be a finite number of attorney-client privileged materials.
If this is the case, there would not be much point in employing a special master, even if all the downsides I’ll address in the next section were not in play. The appointment of a special master is generally not favored in criminal cases. In the privilege context, it is usually reserved for cases in which there could be vast amounts of privileged materials, often unrelated to the case at hand. A good example would be the search of a defense lawyer’s office, in which there could be thousands of privileged communications and attorney-client work product, only a tiny portion of which might be relevant to the client who is under investigation. In such situations, even a government filter team is problematic. After all, the filter team is composed of other prosecutors, and their review of the documents will expose them to the confidential communications of the lawyer’s other clients, which could lead to those people’s being subjected to investigations.
Apparently, what’s at stake in the Mar-a-Lago search is not that sort of difficult-to-manage situation. Short of ordering a special master, the judge could, for example, direct the government to make the segregated attorney-client materials available for inspection by the Trump team. (As I’ve explained, documents that are government property would not be physically returned to Trump; he would merely retain the right to assert privilege if the government tried to disclose the privileged documents or use them for some improper purpose.) Following that, if the Trump team had any claims to make — e.g., if the inspection gave his counsel grounds to believe that the Justice Department did not properly carry out the filtering process — they could file appropriate motions.
The Request for a Special Master Is Moot
The Trump team waited two weeks to seek a special master, during which the Justice Department completed its filtering process. I’ve contended that last weekend, when Judge Cannon directed prosecutors to respond to Trump’s petition (the Tuesday filing) and set a hearing date (yesterday afternoon), they should have asked her for permission to continue the filtering process. Instead, they persisted through the weekend and completed the process on Monday — relying on the fact that Magistrate Judge Reinhart, in issuing the warrant, had approved the filtering process, and the fact that Judge Cannon failed to address whether the government should suspend that process until she had a chance to hear argument and rule.
It was a sharp-elbowed play by the DOJ, and it could blow up on them if Cannon ends up disagreeing with prosecutors on the key issue — may Trump assert executive privilege against the executive branch? For all practical purposes, though, Trump’s special-master application is moot. The process that the special master was proposed to oversee is already finished: The filter-team lawyers have not only gone through everything that was seized, they’ve provided what they determined were non-privileged documents to the investigation team. No special master can undo what’s been done: If the filter team did its work properly, then there will be no problem; if it did not do its work properly, the investigative team has already been tainted by exposure to privileged information, and that could be a huge problem if charges are ever brought. But for now, what’s done is done.
Because a special-master appointment is extraordinary, it is supposed to be sought with urgency. That is especially the case here. When highly classified information is at issue, it is imperative that the filter team get through its review so any potentially compromised intelligence sources and methods can be identified, enabling spy agencies to assess the potential damage to national security. It is fair to fault the government for its laxity here: The FBI learned about the potential mishandling of classified information in January when Trump surrendered the first 15 boxes to NARA, but it did not inspect the boxes for nearly three months, it was another month before the Justice Department issued a grand-jury subpoena, and the search warrant wasn’t sought until August. But all that dithering does not excuse the Trump camp’s lapse. Seeking a special master in these circumstances is an emergency application; if you’re going to make an emergency application, you have to comport yourself as if there is an emergency. Trump waited until the eleventh inning to make a call to the bullpen; by then, the game was over.
So . . . What Will Judge Cannon Do?
The parties appeared in federal court in West Palm Beach, Fla., on Thursday afternoon over the special-master petition. Judge Cannon heard two hours of argument but issued no ruling, indicating she intends to think about it some more and issue a written order.
She seemed inclined to grant the special master on the theory of “what harm would it do?” In the law, rulings create precedents, so that is virtually never a good reason to do something. I was reminded of a case I once had, in which a judge dismissed a petition without a hearing because the petition did not raise any colorable issues. When I defended the ruling, an appellate judge asked me, “What’s the harm in having a hearing? Sounds like there’s no doubt that you’d win.” Of course, that’s exactly when there’s no reason to have a hearing. That principle applies here: This is a situation in which the Trump team should have the burden of persuasion that a special master should be appointed; it’s not supposed to be the government’s burden to prove there’s no harm in giving the other party what the party hasn’t shown it deserves — especially when Trump delayed, when he has not established any privilege violation, and when he would have opportunities down the road to challenge the use against him of any Mar-a-Lago evidence.
Yet, Judge Cannon appears diffident, wanting to have it both ways (which begins to seem like a pattern after she preliminarily indicated sympathy for Trump’s special-counsel application but caveated that she hadn’t made up her mind yet and failed to rule on Trump’s request that the government suspend its filtering process). The judge signaled that she’d like — out of fairness and “what’s the harm?” — to grant Trump a special master, or at least the appearance of one. At the same time, she does not want to be seen as harming the government’s interests: She indicated that the intelligence agencies would not be delayed in their assessment of the risks to national security, and she did not order that the FBI or the prosecutors stop going through the seized documents and developing leads in furtherance of the investigation.
So what’s the point? Perhaps the judge will make the appointment for the purpose of checking the government’s work. That is, a special master (who would have to have a high security clearance) could be appointed to review copies of documents that the DOJ’s filter team reviewed, determining whether privileged materials were properly segregated. But what would happen if the special master disagreed with a decision made by the filter team? What would happen if materials the special master believed should have been withheld have already been passed along to the prosecutors and FBI agents working the investigation?
The flashpoint, as we’ve anticipated above, is executive privilege. The Justice Department is confident that a former president may not assert executive privilege against the executive branch. Judge Cannon is not. At Thursday’s hearing, when a prosecutor contended that “there is no role for a special master to play in executive privilege,” the New York Times reports that Cannon countered, “I’m not sure it’s as cut and dried.”
To the extent she is saying that the Supreme Court has not precisely defined to scope of a former president’s executive privilege, that’s true. That’s why the Justice Department should have flagged the issue for the court (including for Magistrate Judge Reinhart) before it began its screening process — how can you filter effectively unless it’s clear what you’re filtering for? Nevertheless, it makes little sense that executive privilege could be asserted against the executive branch — over the objection of the incumbent chief executive, who, constitutionally speaking, is the only person in the United States vested with executive power. Furthermore, as the Justice Department points out, in 1977, even though it assumed that former president Nixon had some quantum of executive privilege, the Supreme Court rejected his assertion of it against an executive agency (the General Services Administration). The justices reasoned that he could not invoke it against “personnel in the Executive Branch sensitive to executive concerns.”
Were Judge Cannon to conclude that Trump may successfully invoke executive privilege against the investigative and intelligence agencies of the incumbent executive branch, and therefore that the filter team should not have provided seized materials to the prosecution team, that would be a bombshell. I doubt she will do that. But for now, we wait. . . .