I had a column on Monday analyzing Judge Aileen Cannon’s order, earlier in the day, granting former president Trump’s petition for a special master to review materials the government seized from Mar-a-Lago last month pursuant to a search warrant. That analysis focuses on what I believe is the main issue raised by Judge Cannon’s decision: the possibility that Trump, as a former president, retains not only some measure of executive privilege but also the authority to invoke that privilege against the executive branch of the incumbent administration.
In this post, I want to focus on a couple of other aspects of the Florida federal district judge’s ruling that, like the executive-privilege issues, will be front and center if (and almost certainly when) the Justice Department appeals.
Proceeding by Separate Civil Action
I doubt there will be much squawking over Trump’s gambit in filing a separate civil lawsuit rather than simply moving for a special-master appointment before the magistrate judge (Bruce Reinhart) who issued the warrant. By this maneuver, Trump’s got the question in front of a Trump-appointed district judge rather than Reinhart, whom he colorably claims is biased against him. (I am not saying there was any lack of basis for Reinhart to issue the warrant; I am merely noting that Reinhart had previously recused himself from a Trump lawsuit against Hillary Clinton.) Judge Cannon dismisses any concerns about Trump’s suit in a footnote (p.7, n.7), citing authority that permits a party to proceed by a civil action prior to any indictment.
Jurisdiction
More problematic, however, is the judge’s rationale for exercising equitable jurisdiction. Cannon concedes that her authority to intercede on that basis is “reserved for ‘exceptional’ circumstances.” Her conclusion that there are such circumstances here is based some dubious assumptions.
Judge Cannon concedes that the government has not acted with callous disregard for Trump’s rights: Investigators sought court authorization to conduct the search, and the magistrate judge authorized the DOJ’s proposed implementation of a privilege-review process — which, even if its adequacy is now contested, has been carried out in good faith (though with at least two errors that I outlined in yesterday’s column). By contrast, Cannon fails to attribute any weight to the important factor of delay — both Trump’s inexplicable two-week delay in formally seeking a special master, and her own additional and equally inexplicable two-week delay in ruling — during which she failed to direct the government to suspend its filtering process, despite knowing that the DOJ’s filtering team was providing to the investigative team the documents it determined were non-privileged.
Equally questionable, Cannon conflates two issues that are importantly discrete: Trump’s desire for the return of personal property and his need to have privileged documents segregated.
In exercising equitable jurisdiction in favor of granting a special master, Cannon relies heavily on Trump’s purported need to have access to personal property that was allegedly seized — “medical documents, correspondence related to taxes, and accounting information,” in addition to “personal effects without any evidentiary value.” But that has nothing to do with the legal confidentiality privileges — attorney-client and executive privilege — the vindication of which is the purpose of appointing a special master.
Motions for the return of seized property are routine — the germane rule (subsection (g) of Rule 41) explicitly provides for them. They are made all the time without the need to appoint a special master. The fact (if it is a fact) that the warrant has put the government in possession of Trump’s non-privileged personal property, which the government may not need for its investigation and that Trump would like to have back without delay, is not a reason to appoint a special master.
Similarly, Cannon relies on the facts that the government has improperly leaked investigative information and that an indictment would be personally, grievously damaging to Trump. Again, these things are true but irrelevant to the matter at hand. The point of having a special master is to ensure that privileged information is not exposed to prosecutors and FBI agents who are handling the investigation. A special master cannot police leaks and has nothing to say about whether someone gets charged with a crime.
Standing
Closely related to the court’s jurisdiction is the question of whether Trump has standing. Here again, Cannon emphasizes the irrelevant while essentially dodging the main issue.
The government’s argument is that Trump does not have standing as to the documents that are relevant to his special-master petition because those documents, in the main, are government records — i.e., presidential records of the Trump administration (which would include attorney-client privileged communications between Trump and White House counsel, and related work-product). To the limited extent that there may be attorney-client communications between Trump and his private lawyers (and related work-product), those are addressed by the filtering process that the government implemented — again, under the authorization of the magistrate judge who issued the warrant.
By contrast, Judge Cannon finds that Trump has standing because he has ownership and possessory interests in the premises searched and “at least a portion” of the seized property. That would be pertinent if Trump were asking for a return of his property. To the contrary, he is asking for a special master to oversee the government’s segregation of privileged documents. The Justice Department contend that those documents are government property, not Trump property.
Cannon does not grapple with that claim. The closest she comes is this deflection of it: “Although the Government argues that Plaintiff has no property interest in any of the presidential records seized from his residence, that position calls for an ultimate judgment on the merits as to those documents and their designations.” And she’s not even right about that: For now, there is no need for an ultimate judgment; all that’s called for is a preliminary judgment that the documents appear to be covered by the Presidential Records Act, which would presumptively make them the property of the United States.
As I observed yesterday, the major issue the Justice Department would want a clear ruling on from the Eleventh Circuit appellate court is whether Donald Trump, as a former president, retains executive privilege that can properly be asserted against the incumbent executive branch, over the (patent though understated) objection of the incumbent president.
Yet, the Eleventh Circuit could sidestep that question. The appeals court could decide that, in light of Trump’s delay in seeking a special master, Judge Cannon was incorrect in concluding that she had equitable jurisdiction to appoint one. Moreover, the Eleventh Circuit could decide that Trump has not demonstrated that he has standing in connection with the documents pertinent to the special-master issue — a question the district failed to consider adequately.