We cannot but take note of the evolving landscape in the Mar-a-Lago search aftermath.
Court filing seeks modification of special-master order in intensifying criminal investigation.
H oming in on the weakest parts of a Labor Day order granting former president Donald Trump a special master to review materials seized in the Mar-a-Lago search, the Justice Department has asked federal district judge Aileen Cannon to undo restrictions she imposed on the government’s ability to use classified documents removed from the estate. The government’s application, filed on Thursday, warns that it will promptly appeal if Judge Cannon does not grant its narrow request within a week.
Ominously, prosecutors also signaled that their criminal investigation of the former president’s alleged mishandling of national-defense secrets is active and intensifying: exploring the possibility that Trump continues to retain highly sensitive intelligence and may have relocated and/or misplaced some classified documents. The uncovering of such conduct, if it happened, would dramatically increase the likelihood that he would face criminal charges.
Speculation over whether the Justice Department would appeal the order Cannon issued Monday has been rampant. Prosecutors appear to have settled on a strategy that could obviate any appeal, although they are keeping their options open. If Cannon were to grant the government’s latest application, which is couched as a “motion for a partial stay pending appeal,” she would essentially be confessing error regarding the most critical part of her ruling — the dubious theory that a former president retains authority to invoke executive privilege against the incumbent executive branch even to the extent of impeding the latter’s national-security functions.
At least for now, the Justice Department would proceed with the selection of a special master, provided that such a court appointee would review only the non-classified seizures. The DOJ stresses its belief that Cannon also erred in concluding that Trump might have a valid executive privilege claim over these documents. Its objections notwithstanding, though, the government appears to see a path to getting through a special master’s review process rapidly, which could avoid the weeks of delay that an appeal to the Eleventh Circuit would entail.
Why has it decided it can probably live with a special master? The DOJ maintains that its filtering team was over-inclusive in screening out documents based on the barest possibility that Trump could have a valid claim of attorney-client privilege. Those documents have thus been withheld from the team of prosecutors and FBI agents conducting the criminal investigation — there is no possibility of taint. So now, if Judge Cannon were to reverse herself on the classified documents, that would mean the special master would not need a high-level security clearance. This would expand the pool of possible appointees and get the special master in place quickly. Then, if the special master were persuaded by the government’s contention that Trump cannot validly claim executive privilege against the executive branch — particularly with respect to official records that are the property of the government, not of Trump — the review process could be quickly completed.
On the other hand, if Judge Cannon is unwilling to reverse herself, the government can pursue the expedited appeal it has adumbrated, narrowly focusing on the approximately 100 classified documents that FBI agents attest they found at Mar-a-Lago (despite Trump’s unseemly claim, resuscitated on Thursday, that the bureau planted evidence against him). And if Cannon does reverse herself but the Justice Department ends up dissatisfied with the special master’s conclusions about the scope of privilege, the government could file a broader appeal in due course.
The tack taken in the DOJ’s application is to persuade Cannon that, as it pertains to the subset of documents bearing classified markings, her ruling is indefensible even on its own terms — essentially for reasons I explained here and here after the ruling was issued. Since district judges do not like to be reversed, especially in cases that attract intense public scrutiny, the DOJ calculates that Cannon could find this off-ramp enticing: It follows on her own logic, and would enable her to retreat on the matter of greatest importance to the government’s investigation without having to retract her entire ruling. If she becomes convinced of the strength of the Justice Department’s position (as I believe she should), she will assess that she could otherwise be headed for an embarrassing wholesale reversal.
The government contends that Trump’s executive-privilege claim is so untenable when it comes to the classified documents that, even in her indulgent ruling, Judge Cannon implicitly discredited it — as did Trump himself.
In granting the special-master petition, though Cannon suspended the government’s use of the seized evidence in its ongoing investigation, she made a huge exception: The executive branch’s intelligence agencies, including the FBI, were permitted to continue their review of the classified seizures to assess the potential national-security damage caused by their mishandling. Cannon thus concluded that, whatever the arguable scope of a former president’s executive privilege may be, it must give way to the incumbent executive branch in the performance of its core duties.
Relying on a declaration submitted in conjunction with its motion by a top FBI counterintelligence agent, Alan E. Kohler Jr. (see here, scrolling beneath the motion), the Justice Department explains that the risk assessment by the FBI and other intelligence agencies, which Cannon has already agreed is imperative, cannot be separated from the FBI’s criminal investigation of the mishandling of the documents.
In an argument that will disturb those concerned about either national defense or Trump’s potential criminal liability, prosecutors stress that
the injunction against using classified records in the criminal investigation could impede efforts to identify the existence of any additional classified records that are not being properly stored — which itself presents the potential for ongoing risk to national security.
This passage must be read in conjunction with the revelation a few days ago that the Mar-a-Lago search yielded dozens of empty folders in which classified information had been stored, as well as the emphasis, in the government’s latest submission, on the FBI’s ongoing risk-assessment inquiry into whether “improperly stored classified information may have been accessed by others and compromised.”
In sum, despite the ten-hour search of the Palm Beach resort on August 8, the government suspects that a good deal of classified information is still unaccounted for. It urges that the suspension of the FBI’s use of the classified documents in the criminal investigation hamstrings the bureau’s witness interviews and pursuit of other leads that might help agents locate additional classified documents. Ergo, Cannon has undermined the very risk assessment that she herself concluded was too important to be delayed by Trump’s highly debatable executive-privilege claim.
In positing that argument, moreover, the Justice Department underscores that its criminal probe is very actively investigating whether Trump is continuing to violate the Espionage Act and to obstruct the investigation — offenses for which Magistrate Judge Bruce Reinhart found probable cause when he authorized the Mar-a-Lago search warrant on August 5.
The government’s contention that Trump himself has undercut his privilege claim is straightforward. On May 11, a grand-jury subpoena was issued demanding the surrender of all documents bearing classification markings that Trump had retained. In response, on June 3, Trump’s lawyers provided 38 classified documents, in addition to representing that, a “diligent search” having been conducted by Trump’s team, there were no more documents with classification markings in the former president’s possession. Pointedly, the DOJ observes that Trump did not claim executive privilege over these classified documents. Rather, he surrendered them, implicitly conceding that there was no executive-privilege claim to be invoked. (And, we should recall, far from claiming that these 38 documents had been declassified, Trump’s lawyers securely packaged them for delivery to the FBI in Florida for transport to Washington — evincing the Trump team’s understanding that the documents contained national-defense secrets.)
Beyond this, the Justice Department reasserts that a former president’s claim of executive privilege, specifically over classified intelligence, is implausible. As I noted earlier this week, Judge Cannon relied on the seizure of some personal property of Trump’s in granting the special-master application; but what’s at issue in the privilege dispute is not Trump’s personal property — it is a subset of documents that, by statute, belong to the government. Within that subset, the even smaller batch of classified records is clearly not privileged — in the main, these are intelligence reports, not executive communications or resulting work-product.
Moreover, prosecutors repeat their contention that whatever vestige of executive privilege a former president may arguably retain based on dicta in Nixon v. Administrator (1977), the privilege cannot be invoked against the incumbent executive branch itself (indeed, the Nixon Court described such an assertion of executive privilege as an “apparent anomaly”). But even if, for argument’s sake, there were some conceivable privilege claim that a former president might be able to assert, the Nixon Court itself concluded that such a claim would have to give way if the government demonstrated a “specific need” for the purportedly privileged information.
In Nixon, the justices concluded that the former president’s privilege claim could not prevail over the General Services Administration’s need to screen presidential records for archival purposes. A fortiori, Trump’s unlikely privilege claim would easily be overcome by the government’s need to investigate possible criminal offenses and the profound harm those offenses may have done to national security.
Judge Cannon has given former president Trump’s lawyers until Monday morning to respond to the Justice Department’s salvo. She has also advised the parties to bear the DOJ’s application in mind as they proceed with negotiations over a special master. It appears she is taking the DOJ’s position quite seriously. We’ll see what Trump’s team has to say, but odds are the judge will grant the government’s requests to be permitted to continue using the seized classified documents in the FBI’s criminal investigation, and to shield that subset of 100 documents from any special-master review of the thousands of documents seized at Mar-a-Lago.
All signs are that this is an aggressive investigation, fueled in part by suspicions that the former president continues to hoard classified intelligence. Those of us who surmised, after the Mar-a-Lago search, that the government merely wanted to get its documents back and would probably not pursue criminal charges cannot but take note of the evolving landscape.