Trump judge’s decision tests if justice is blind
When FBI agents searched Donald Trump’s residence at Mar-a-Lago in early August, they had ample reason, backed by a valid search warrant, to believe they’d find something. And find something they did: roughly 13,000 items, including classified documents.
The circumstances here are extraordinary: a former president who appears to have illegally removed classified material from the White House and then resisted repeated requests to return them. But now instead of moving forward in reviewing those documents and just how they got to the Florida residence, the investigation has been largely stalled thanks to another extraordinary circumstance: a Trump appointed-federal judge granted his request and ordered the appointment of a special master to review the documents seized from Mara-Lago.
University of Texas law professor Stephen I. Vladeck told the New York
Times the ruling was “an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation.”
There’s a lot that’s unusual about the decision and most of it warrants serious pause.
When there are questions of attorney-client privilege or other concerns about what evidence should be shared with whom, a judge can certainly order the services of a special master to help make those determinations. In this case, though, the DOJ already did its own screening with a separate group of FBI agents and prosecutors, according to the Washington Post. That team found roughly 500 potentially privileged items, per the judge’s decision.
What’s more, the special master approved by Judge Aileen M. Cannon wouldn’t just be looking for information subject to attorney-client privilege, but to executive privilege as well. Invoking executive privilege is certainly much rarer. Though Cannon argued that concerns about executive privilege should not be “disregarded,” other legal experts are not so sure that a unilateral declaration from a former president holds up, according to reporting by the New York Times. Experts have also questioned the judge’s decision to apply it in this case, noting that Trump is no longer in office and arguing that the DOJ is itself part of the executive branch .
“The opinion seems oblivious to the nature of executive privilege,” Peter M. Shane, a legal scholar at New York University , told the New York Times.
Then there’s the matter of the material itself that includes — let’s not forget — the most top secret designation possible and that likely involves information related to national security. This means that, as the DOJ has argued, anyone assigned to review the evidence would need top security clearance.
The specialness of the case was not lost on Cannon who used the former president’s unique position to argue that he was at a heightened risk for “stigma” and reputational harm. This is a risk that most everyone faces if they’re being investigated and we’d imagine it’s especially true for people being investigated for potentially exposing national security secrets. That’s pretty serious after all.
Cannon actually agreed with the government that Trump does not seem to have suffered any violation of his constitutional rights and still this decision seems to grant the perpetually aggrieved former president privilege after privilege.
Part of Cannon’s argument in favor of a special master is the “appearance of fairness.” That is important and it’s a concern the DOJ seems to have weighed in its careful execution of the investigation so far. But it’s a peculiar concern coming from Cannon who, before even hearing arguments, indicated she was likely to find in Trump’s favor.
Now that she has, investigators are not able to examine or use any of the seized items. They’ll still be able to conduct interviews relevant to the investigation. And a separate review of the material by the Office of the Director of National Intelligence can continue. The ruling will likely be appealed but promises to slow the investigation regardless.
This decision represents the “radical path,” as New York University law professor Ryan Goodman told the Times. And it’s a troubling reminder that the courts are not free from political influence. Trump was a prolific appointer in his four years, appointing “more than 200 judges to the federal bench,” according to Pew Research Center, effectively reshaping the federal judiciary, “particularly the appeals courts — for decades to come.” The appeals court that would hear the case if it’s appealed has six Trump appointees out of the total 11 active judges.
The delay is unfortunate but the bigger concern here is the fair application of the law. As loud and whiny as Trump has been about his socalled persecution, the investigation is a serious one and has not infringed on his rights.
Trump seems to think rules don’t apply to him but if there’s any place they should, it’s in a court of law.
Why did ex-president get his way on special review of documents?