Order of a judge approving a special master to examine documents the FBI took from the former president donald trumpThe Florida home is a deeply flawed and unworkable mess, legal experts told NBC News on Tuesday.
U.S. District Judge Aileen Cannon on Monday granted Trump’s request to have a special master review all evidence seized last month from his Mar-a-Lago estate and temporarily blockaded parts of the justice departmentinvestigate the trove of top secret and classified documents recovered by federal agents.
Cannon, 41, a Trump appointee, also made legal defenses that Trump’s team did not, including that the former president could suffer “reputational damage” if the Department of Justice charged him.
Legal experts blasted the whole decision and wondered how it could be implemented, while warning that a government appeal could drag the investigation further.
“I think it’s a corrupt decision. I think this is a special law just for Donald Trump by a Trump appointee, and it’s unprecedented, unbearable in law, won’t be endorsed by anyone who isn’t a Trump fanatic,” Paul Rosenzweig said. , a Department of Homeland Security official under former President George W. Bush.
“It’s hugely disappointing, because until now…the courts have been the last bulwark against excess, and this ruling suggests that at least some of Trump’s justices have passed on loyalty to the man over loyalty. to the rule of law, and that is deeply regrettable,” said Rosenzweig, who was lead counsel for Ken Starr, the independent attorney who investigated President Bill Clinton.
Bradley Moss, a national security attorney, said Cannon’s decision was “not based on any statute or legal theory” and included “a much better defense of the legal position of the former president than anything his real lawyers have come up with.” .”
“I think, at a minimum, the Justice Department will have to appeal” the portion of the order that temporarily bars the Justice Department from using the seized documents to further its criminal investigation, Moss said.
But, he warned, an appeal is not an easy road. The 11th U.S. Circuit Court of Appeals, which would hear any appeals in the case, “took a particular conservative turn, and the U.S. Supreme Court is 6-3 in favor of conservatives,” Moss said. . I would win on appeal.
Brandon Van Grack, a former counterintelligence prosecutor who worked on Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election, said there “would be a strong push to appeal “, particularly because the Justice Department’s criminal investigation and the Office of the Director of National Intelligence’s damage assessment likely go hand in hand and “cannot be separated.”
Part of Cannon’s order gave the Office of the Director of National Intelligence permission to continue its review of documents for an assessment of damages, a process in which the Justice Department played a role.
“The criminal investigation informs the intelligence investigation,” Van Grack said, adding that Justice Department investigators likely conducted fingerprint searches of the classified documents to determine who was handling them – a key step for determine how much they could have circulated.
Cannon’s decision could also prevent investigators from asking witnesses who had access to the documents. “It will delay and compromise the investigation,” Van Grack said. “They won’t have complete information.”
Legal experts have also disputed Cannon’s assertion that the special master should review documents for potential claims of executive privilege, instead of limiting review to traditional attorney-client issues.
Trump’s team argued that a special master — essentially a court-appointed neutral third party — was needed because they couldn’t rely on the so-called screening team the Justice Department used to separate the documents. privileged, saying they could not be should “trust the restraint of presently unchecked investigators.”
The Justice Department argues that executive privilege is not up for debate because the documents seized do not belong to Trump.
“He’s no longer president. And because he’s no longer president, he had no right to those documents,” Justice Department attorney Jay Bratt told the judge during a audience Last week.
Rosenzweig agreed, calling it “absurd” that a special master is looking for potential executive privilege issues.
“I don’t think there’s a good track record,” Rosenzweig said, noting that there’s no executive privilege body of law for a special master.
“I don’t know how a special master would proceed, which means inevitable delay and hassle,” he said.
Prior to becoming a federal judge, Cannon worked as an Assistant United States Attorney in the Southern District of Florida, focusing on Appellate Division criminal cases that included money laundering, child pornography and rights of the Fourth Amendment, she said. judicial appointment questionnaire. Cannon, a 2007 University of Michigan Law School graduate, had no prior experience as a judge but fit the profile of Trump’s nominees: young and connected to the Federalist Society, a conservative legal organization.
During the Senate confirmation process, Sen. Dianne Feinstein, D-California, asked Cannon in written questions if she had “discussions with anyone – including, but not limited to, people in the White House, the Department of Justice or any other outside group – on loyalty to President Trump?”
Cannon replied, “No.”
She was confirmed by the Senate just after the November 2020 election in a 56-21 bipartisan vote. Feinstein was among about a dozen Democrats who voted for him.
But since the high-profile decision in the biggest case of Cannon’s legal career, even some of Trump’s former allies have spoken out against his legal arguments.
“The advice, I think, was wrong, and I think the government should appeal. It is deeply flawed in several respects,” former attorney general William Barr said. said in an interview with Fox News.
“I don’t think appointing a special master is going to hold up. And even if it does, I don’t see it fundamentally changing the trajectory. I don’t think it changes the ball game as much as maybe we’ll have a rain delay for a few innings,” Barr said.
Barr said the 11th Circuit could expedite the appeal, but he acknowledged “it could take several months to recover.”
NBC News legal analyst Chuck Rosenberg, a former US attorney, said: ‘There seems to be a trade-off between appealing a poorly reasoned court decision on the one hand and further delaying part of their investigation on the other. go. In the end, the government will most likely get what it’s entitled to – one way or another – but the way forward seems a bit murky.
Trump’s lawyers and the Justice Department are expected to submit a joint filing to the judge naming potential special masters by Friday.
Stephen Saltzburg, a law professor at George Washington University, a former Justice Department official, said whoever gets chosen ‘would have to have an incredibly high security clearance now or get one in a very short period of time’ .
He also predicted that whoever was chosen would be able to work fairly quickly.
Saltzburg, who worked as a special master, said the reason judges usually want special masters “is that they want a review to be done quickly and thoroughly, and they don’t have the time to do it themselves”.
For some legal analysts, the unique situation unfolding in this case means that it is impossible to have a clear view of the road ahead.
Kel McClanahan, executive director of National Security Counselors, a nonprofit law firm, called the judge’s order a “new interpretation of the law,” making it impossible to know how the case will play out.
“The word ‘unprecedented’ gets thrown around a lot, especially in this case, but this case is literally unprecedented,” McClanahan said. “It’s not something we’ve dealt with before, and therefore using the past to inform what’s to come next is a dice game.”