On Monday, a federal judge granted former President Donald Trump’s request to appoint a special master to examine the documents that F.B.I. agents found at his Florida home as part of an ongoing investigation into his handling of the documents since leaving office. The judge, Aileen M. Cannon, who was appointed by Trump in 2020, ruled that the Department of Justice would also have to cease using the materials in its investigation until the special master had reviewed them for attorney-client privilege and executive privilege. It remains unclear whether the D.O.J. will appeal Cannon’s decision; both sides have until Friday to present candidates who could serve as special master.
To help understand what this means for the D.O.J.’s investigation of Trump, I recently spoke by phone with Mary McCord, a former Assistant U.S. Attorney for the District of Columbia, who was the acting Assistant Attorney General for National Security from 2016 to 2017. She is currently the executive director of the Institute for Constitutional Advocacy and Protection at Georgetown Law. During our conversation, which has been edited for length and clarity, we discussed the questionable legal reasoning in Cannon’s argument, why the Justice Department might be reluctant to appeal her ruling, and how big a threat the appointment of a special master might pose to a possible criminal case against Trump.
What, essentially, was Judge Cannon’s legal reasoning here, and what did you make of it?
There are a lot of different parts to that question because she analyzes the request for a special master in a number of different ways. Does she have equitable jurisdiction? Are the factors that would support the appointment of a special master present? The factors that justify an injunction—are those present? So there are different tests for all of these things, and she purports to apply those. But what I see as the overriding concern, reading her opinion, is the appearance of fairness in a case involving a former President. And I think that she is using her equitable authority to try to insert this step of using a special master that, at least in her view, will best assure a fair process for the former President.
And what do you make of that argument?
Legally, I think the government would have good grounds to appeal this order. I don’t think that it’s really well founded legally, but there’s some leeway. The Department of Justice will have to really think carefully about whether it wants to appeal and potentially drag this out even longer, or whether it just wants to go ahead and comply with this order.
The department could, in some ways, benefit from the distance that an independent special master would provide, and inoculate itself against some criticism, political criticism, now and in the future, if this material is reviewed by an independent special master. And, ultimately, much of the material that the department is allowed to use is something about which they could say, “Hey, it wasn’t just our own filter team that said we could use this material.”
The department also has to consider and weigh whether it is worth appealing. One possibility is that during the appeal everything halts. A second possibility is that the special master goes forward with the review and might even complete it before the appeal is fully briefed. A third option is the department could seek an emergency stay of the lower court’s order by going to the Eleventh Circuit and saying, “We’re noting our appeal of the ruling and, pending a decision on the substantive merits of the appeal, we’re seeking a stay of the lower court’s injunction,” which would mean basically not imposing the injunction on the department, or not preventing it from using and reviewing the materials. But all of these things are additional protraction of the litigation.
So your sense is that an appeals process would take longer than it would for the special master to go through these documents?
Yes.
My understanding is that granting special-master review for executive privilege is a more extreme step than it is for attorney-client privilege. Is that right?
There’s three things going on here, really. The court seems to express concern about relying solely on the government to do the attorney-client-privilege filter review. Judge Cannon also seems concerned about the government retaining purely personal documents of the former President that don’t raise privilege issues at all. And she seems to be at least willing to entertain the notion that there could be documents for which executive privilege might be asserted. It is more out of the ordinary to appoint a special master to review for things like executive privilege.
The ordinary course of appointing a special master is in a case that is hugely document-intensive and when there’s really good reason to believe that there will be a lot of attorney-client-privilege documents in the place searched, such as the offices of an attorney. It’s less common in other circumstances, and certainly there aren’t that many people who could assert executive privilege, because it is a privilege of the executive, which is assertable only by the executive, and typically only by the incumbent executive.
The D.O.J. essentially argued that the department itself is the executive, and so the idea of there being an executive-privilege issue here was sort of on its face ridiculous. Do you disagree?
There’s certainly no separation-of-powers issue, because it’s all within the executive branch. Earlier this year, in Trump v. Thompson, Justice Brett Kavanaugh indicated that there may be some room for a former executive to assert executive privilege. I think that it’s highly, highly unlikely that anything that Trump would assert with respect to the documents found at Mar-a-Lago ultimately would be sustained, because, to the extent that there is some privilege, the views of the incumbent—President Biden—would be entitled to great weight. That we know from prior Supreme Court precedent, Nixon v. General Services Administration, and the government’s interest in the documents here. We’re talking about both the criminal investigation and a national-security investigation. The government’s interest in these documents would be very high.
The judge also appeared to be arguing that the sheer volume of the material meant that a special master could review it more quickly than her court could. What do you think of that argument?
A lot of cases involve more materials than were seized here, but I can’t say what her docket looks like, and if she thinks she can’t get to this in a timely fashion then sometimes a special master would come into play.
On Friday, if the government doesn’t make an immediate appeal, or if it does but still goes ahead and makes the filing, it will want to be pressing for some pretty tight timelines on any special master to complete the review, because what the government does not want to have is this dragging out. The government was able to get through all of the materials in three weeks or less. So there’s no real reason why a special master shouldn’t be able to do that as well, even if it means having more than one person appointed to the special master’s team—recognizing, of course, that this person and any team would not only have to have top-secret clearance but also be read into all the various special-access programs.
Judge Cannon seemed to go out of her way to stress the unique nature of this case and that Trump is a former President. Do you think that’s appropriate? I mean, obviously he is a former President. This case is unique. It would be silly to deny it. At the same time, you want to make sure people are given the same benefits with regard to the law.
I think she was saying some of those things partly to try to deflect criticism that this is going to change the law in every case going forward involving a search warrant. She was trying to express that this is really unique. I’m not trying to give her undue credit, because I don’t think it’s a very well-reasoned opinion at all. I think it’s quite poor, actually. But I understand her looking at this as a very unique situation, because it is.
Why do you think it’s poor?
I don’t think her legal reasoning is particularly good. I don’t really see any good rationale for why an interest in your personal papers is a reason for a special master when the government is entitled in a search warrant to use of personal items that have relevance to the investigation, and when the government has said it would return items that don’t have relevance. Sometimes personal papers can actually have value, right? Particularly in a case where you’re trying to show knowledge and intent with respect to the mishandling of classified information. How the classified information might be comingled with personal papers, where it’s located, where it’s found, could be very telling with respect to the former President’s knowledge and intent.
She gave really short shrift to the value of personal papers. When she talked about irreparable harm to the former President, based on stigma and reputation, and the possibility of an indictment that could be invalid, that seemed pretty overblown. And it’s the former President himself who called national attention to the execution of this search and has continued speaking about it and providing information about it and campaigning on it, frankly. It’s hard for me to see where there’s actual irreparable injury to the former President.
It’s hard to know whether to take some of the arguments she’s making at face value. I’m not sure how seriously to take them as legal arguments and how much to take them as partisan arguments.
I’m not going to impugn her on partisanship. I just think that the analysis is, first of all, really brief. It’s not persuasive legally.
We don’t need to impugn her, but it’s something to think about with all judges.
Oh, yeah.
About an appeal, you suggested that it could take longer than the review by the special master. And so the D.O.J. may not want to do it. Do you think there’s another reason that it wouldn’t do it, which is that there’s some real chance that the Eleventh Circuit—or even the Supreme Court, if it goes that far—would issue a ruling that would hamstring the investigation even more? Or is that not something you’re particularly concerned about?
It’s certainly the case that the Eleventh Circuit or the Supreme Court could just affirm. And so, regardless of whether they make the ruling more expansive or anything, even just a straight affirmation means that you spent a whole lot of time litigating and you’re back where you started. The D.O.J. is trying to get through this investigation, and so I think they really need to consider that.
Now, the good side of things is that the judge did not halt the use of these documents and materials for the national-security review. Totally apart from the criminal investigation, it’s just so important that the damage assessment gets done and that it gets done in a timely way so that we don’t have potential risk to confidential sources and methods, etc.
How would a judge usually choose a special master in a case like this?
It can be somebody that the judge just knows and thinks is qualified, or the judge can ask the parties to recommend somebody. And, of course, the court has done that here: asked the parties to recommend a special master by Friday. I don’t know whether the parties will be able to come to any agreement. Certainly the Trump side has been arguing that everything is politicized, and they might not want to agree to anybody that the D.O.J. might propose. And the D.O.J. may not want to agree to anyone that the Trump side might propose. So we’ll see how that pans out.
The proposed order will be really important because that’s, again, where we’ll be talking about things like the timeline and scheduling for review—and also, at least in part, some of what the process will be for the special master to catalogue what he or she decides when potential privilege issues arise and how those will be litigated, first before the special master and, if necessary, for court review.
I assume that it would be a warning sign if the chosen special master was not someone serious.
Right.
I’ll call you back when Ivanka Trump is chosen as special master.
I don’t think that anyone who isn’t already at the top-secret level of security clearance should even be considered because, beyond that, this person will have to get read into each one of those special-access programs. And it’s not like the documents can just be sent electronically. Review of all classified documents will have to take place at a Sensitive Compartmented Information Facility (SCIF).
Even if the investigation is hamstrung in some serious way, will the government have trouble charging Trump with obstruction based on what the special master does?
This is definitely going to insert some delay, but the court didn’t say that the government has to stop investigating. It just can’t continue to review or use these materials. Remember: the criminal-investigative team has already seen them all. And so, to the extent that they decided to interview more people based on what they’ve seen, there’s nothing about the judge’s order that says that they can’t go ahead and do those interviews. There’s nothing about her order that says that they can’t do additional subpoenas, even if they had the whole idea for the subpoena based on these documents. I don’t see that in here, depending, I suppose, on what you make of the term “use,” but you can’t unknow what you already have in your head.
Now, I don’t think they could use one of these documents during such an interview, to ask the witness, “What do you make of this document?” But they could go to the special master or even the court and say, “We would like to use Document 35 for purposes of a witness interview. We’d ask the court to review that document and determine whether there’s any privilege issues there.” That’s one thing they could do. I just want to make clear that this is not a dead halt to the investigation.
The law professor Orin Kerr asked the question, “Does a federal court have the authority to enjoin executive branch ‘use’ of seized material for ‘investigative purposes’?” What do you think about that question?
When a criminal-investigative team is privy to information that later turns out to be privileged, sometimes the courts then have to get involved in reviewing whether the government can use certain information in the prosecution or whether that’s already tainted. They’ll do a big taint hearing.
You don’t seem particularly concerned that this is really going to throw the investigation off course in a major way. Is that accurate?
Yeah. I think the biggest concern here is that it’s just not a well-reasoned opinion. It’s not a well-founded, legally grounded opinion, and that’s always concerning, but it is not the end of the investigation. So I don’t want to get too hyperbolic about it. ♦
