Aileen Cannon has granted Trump’s petition for a special master, after an inexplicable and damaging delay.
Aileen Cannon has granted Trump’s petition for a special master, after an inexplicable and damaging delay.
F ederal district judge Aileen Cannon waited until Labor Day to issue a potentially explosive order granting former president Donald Trump’s motion for a special master to review documents seized from Mar-a-Lago.
After waiting for over a week, during which she allowed the Justice Department to take investigative steps based on documents she now says may be subject to executive privilege, Judge Cannon ordered the government to suspend its criminal investigation — at least to the extent investigators are and have been relying on documents seized from Trump’s Florida estate.
In an important caveat, Cannon ruled that the intelligence agencies may proceed with their review of documents marked classified that were seized by the FBI in the August 8 search. That review, which is separate from the Justice Department’s criminal investigation, aims to determine the extent to which U.S. national security may have been jeopardized by the mishandling of intelligence secrets at Mar-a-Lago, much of which were classified at the highest levels.
The Justice Department has not yet commented as of this writing, but it seems certain that prosecutors will seek a reversal of Cannon’s order from the Eleventh Circuit — specifically, to the extent the district judge (a) concluded that Trump, as a former president, may retain an executive privilege of confidentiality that can be successfully asserted against the executive branch of the incumbent president and (b) suspended the ongoing criminal investigation until a special master can be appointed and has a meaningful opportunity to review the apparently thousands of documents seized.
I outlined the issues raised by the Trump legal team’s belated petition for a special master last Friday.
There are no heroes in this drama. The Justice Department has been playing with fire from the start. Trump dragged his feet in seeking the special master, to the point that DOJ had nearly completed its privilege review by the time he finally filed his court action. Cannon, whom Trump appointed to the district court in 2020, inexplicably allowed nine days to elapse after first signaling her inclination to appoint a special master, during which she wrung her hands about whether to order the appointment and, more significantly, failed to rule on Trump’s application for a court-ordered suspension of the Justice Department’s review process and for a directive that DOJ cease using documents Trump claimed were privileged in furtherance of its criminal investigation.
The Justice Department blithely assumed that Trump had no executive privilege even though this is an unsettled question in the law.
When a salient point of law is unclear, the responsible course for prosecutors is to flag the issue for the court and get a ruling before taking controversial actions. Instead, in seeking the search warrant, DOJ advised Magistrate Judge Bruce Reinhart that the filtering process that would be implemented in connection with documents seized in the search would screen only for attorney-client privileged documents, not executive privileged documents. The latter category is apt to be considerably more expansive. It does not appear that DOJ alerted Reinhart to the possibility that Trump could have a colorable executive-privilege claim, and there’s no indication that Reinhart raised the question on his own.
To be sure, DOJ probably has the better argument. The Supreme Court ruling that first recognized post-presidency executive privilege, Nixon v. Administrator (1977), held that former presidents retain some measure of executive privilege and speculated that there might be some situations in which the privilege could even be asserted against the incumbent executive branch. Yet, the Court ruled against Nixon’s invocation of privilege against the General Services Administration, an executive agency.
Subsequently, in his legendary lone dissent in Morrison v. Olson (1988), the late Justice Antonin Scalia stressed that the Constitution vests all executive power in one officer, the president. One wonders, then, how a former president would have power to assert privilege, in effect, against the current president, given that (a) history proved Scalia right on the central issues in Morrison (which involved appointment of an independent counsel under a now lapsed statute), (b) the theory of the unitary executive is central to originalist jurisprudence, and (c) former presidents have no power at all, executive or otherwise.
Nevertheless, that is an argument. The Justice Department’s insistence to the contrary notwithstanding, it is simply not settled law that former presidents are powerless to assert executive privilege against the incumbent executive branch (including its investigative agencies, such as the FBI and DOJ). And as far as Judge Cannon is concerned, DOJ’s theory may well be wrong. Her 24-page ruling, for example, highlights these observations by Justice Brett Kavanaugh, in a statement he recently filed in Trump v. Thompson (2022):
A former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim. Concluding otherwise would eviscerate the executive privilege for Presidential communications.
Here, we should note that in Trump v. Thompson, the Supreme Court, in an 8-1 decision, upheld lower-court rulings that permitted the House January 6 committee to gain access to documents as to which Trump claimed privilege. Kavanaugh made clear that he was responding to dicta in a lower-court opinion; even he did not dissent from the narrow ruling rejecting Trump’s privilege claim (although Justice Clarence Thomas did). Kavanaugh, moreover, may well be wrong — and not just on unitary-executive grounds. Biden, an incorrigible partisan, has tried to negate Trump’s privilege claim in this instance, but he will probably come to regret doing so; incumbent presidents have a powerful interest in maintaining the privilege for their predecessors because they will want it preserved for themselves when they leave office. In undermining Trump here, Biden is undermining himself.
In the case of the Mar-a-Lago search, after apparently failing to raise the executive privilege issue with Reinhart, the Justice Department compounded the problems by failing to seek clarity from Cannon last weekend.
As I’ve detailed, as part of his special-master petition, Trump asked Cannon to suspend the Justice Department’s filtering process and its use of potentially privileged documents in the ongoing investigation. Cannon preliminarily indicated that she might grant Trump’s special-master petition but failed to give any guidance, one way or the other, about whether DOJ should suspend its processes until Cannon had a chance to rule. Prosecutors should either have suspended on their own or at least asked Cannon for permission before continuing. Cannon, after all, had ordered DOJ to respond to Trump’s petition by (last) Tuesday and scheduled a hearing for (last) Thursday. To be sure, Cannon is principally responsible for the confusion — Trump asked for suspension, and she did not respond. But such things happen from time to time, and the Justice Department’s duty is to clarify the record, not act in a way that could exacerbate potential problems. 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. This meant all the documents the filter team decided were not attorney-client privileged were passed along to the investigative team — including materials subject to executive-privilege claims. 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. Having failed to do that, DOJ should have agreed to the Trump team’s request for a special counsel when it was raised in the first days after the search. As I pointed out in Friday’s column, 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. By agreeing to it, the government would have demonstrated its good-faith commitment to protect the rights of suspects under investigation. But the Biden Justice Department instead rejected the special-master request, mulishly plowing ahead on the presumption that its position on executive privilege was indisputable.
For its part, the Trump team is getting a gift — although I suspect it will prove ephemeral. Experienced defense counsel might have had a lawyer from the team in court demanding the appointment of a special master even while the search (which took about ten hours) was underway and, in any event, would have made an emergency court application for a special master by the next day. In the circumstances of a search that is likely to yield privileged information, the suspect never wants government prosecutors unilaterally to determine what is privileged and what may be used in the investigation. Rather than relying on the Justice Department to implement its in-house filtering process, the suspect wants his own counsel involved in the process and, at a minimum, wants the process to be supervised by the court (i.e., by a special master — an independent arbiter appointed by the court). Yet the Trump team took a few days before finally raising the special-counsel question with the Justice Department; then, when DOJ rebuffed Trump, his lawyers waited until August 22 — two weeks after the search — to seek the court’s intervention.
By then, the Justice Department’s process was substantially complete. Many judges would thus have rejected Trump’s request because it was moot, mainly because the Trump team failed to make a timely request. But Judge Cannon entertained the request nonetheless.
The executive-privilege issue was clearly part of her thinking. So, I suspect, was the Justice Department’s arrogance in forging ahead with its process even after she scheduled a hearing — although, again, even if we stipulate that DOJ used sharp elbows, Cannon herself is primarily to blame for failing to make herself clear. All that said, another important factor is that the Justice Department admits that mistakes have been made in its filtering process.
Cannon explains (Order p. 15 & n. 13) that on at least two occasions, the investigation team recognized that it had been given potentially privileged documents by the filtering team and gave the documents back immediately. While justifiably lauding this demonstration of the investigation team’s integrity, Cannon concluded that the episodes also show that (a) the Justice Department’s unilateral review process is not working properly; (b) some members of the investigative team are already tainted by exposure to privileged material, and it is not clear they have been walled off from continued participation; (c) obviously, the review process is not really over since the investigative team is under a continuing obligation to be on the lookout for privileged documents that the filtering team may have missed; and (d) the process could benefit from an additional layer of impartial review.
Even if we assume for argument’s sake that she is right, Cannon’s delay is inexplicable. Again, she knew nine days ago that she was leaning in favor of appointing a special master. All the considerations about privilege and fairness were as patent then as they are now. Yet the judge not only dawdled; she delayed knowing that as the hours became days without any court decision, the Justice Department and FBI were making investigative use of information Cannon believed to be potentially privileged. She could easily have ordered a suspension of the filtering process and investigative use of the seized materials last weekend. If she wasn’t going to do that, how could she wait another nine days to issue her ruling?
It seems certain that the Justice Department will appeal Cannon’s decision to the Eleventh Circuit on an expedited basis. Not only does the Justice Department have a colorable argument that the former president may not invoke executive privilege against the current president’s administration; DOJ is now deeply invested in this position because documents that are otherwise privileged have been shared with the team conducting the investigation.
President Biden does not support former President Trump’s privilege claims. Unless there is clarity that current executive officials thus do not owe confidentiality to the former president, there will be serious questions about whether the current investigative team, and perhaps the investigation itself, is tainted.
To my mind, it is unlikely that the courts will find such taint. But those are the stakes.