A federal judge ruled a “special master” should be appointed to review the Mar-a-Lago documents.
Experts questioned the decision, particularly the view Trump might have executive-privilege claims.
The ruling will likely delay the FBI’s inquiry into Trump’s handling of classified information.
A federal judge’s decision Monday to appoint an independent official to review the documents hidden from former President Donald Trump’s Mar-a-Lago resort surprised legal experts.
The ruling by Judge Aileen Cannon could delay the FBI’s investigation into the former president’s decision to move government records, including highly classified information, to his home in Florida after leaving office.
Attorneys and former federal officials picked apart Cannon’s ruling, with many focusing on her view that Trump might be able to assert executive privilege over some of the records and withhold them from the Justice Department.
Executive privilege is a legal concept allowing presidents to shield records of private deliberations with advisors from Congress and courts but has not been used before by a former president to shield records from the current executive branch. A “special master” is set to review the 11,000 documents retrieved by the FBI to see if any fall into this category.
The current government is the legal owner of all government records, and the Biden administration has declined to assert privilege over any of the material Trump took with him to Mar-a-Lago or withhold it from investigators.
“I don’t think a special master makes sense in connection with executive privilege material,” William Barr, who served as attorney general under Trump, told Reuters.
He added: “If the documents are subject to executive privilege they involve official deliberations about executive actions, and by definition, those documents belong to the government.”
Others raised questions about the context of the ruling, given that the Justice Department is actively pursuing a criminal investigation into the handling of the records.
“Even if there is some hypothetical situation in which a former president could shield his or her communications from the current executive branch,” Peter Shane, a constitutional expert at New York University, told The New York Times“they would not be able to do so in the context of a criminal investigation — and certainly not after the material has been hidden pursuant to a lawful search warrant.”
Some questioned the logic of appointing a special master to review the material, given that it had already been inspected by the FBI. Typically, a special master screens out material shielded under attorney-client privilege rules, a task already performed by the Justice Department.
“She tries to enjoin the Exec Branch from using these materials in an investigation, but the govt has already reviewed all the materials. It makes no sense,” Neal Katyal, a former acting attorney general from the Obama administrationtweeted.
Cannon is a Trump appointee who was confirmed by the Senate in 2020. In her ruling, Cannon said the Supreme Court had not excluded the possibility that former presidents could assert executive privilege over a current government. She added that it could be a legal gray area.
“The Supreme Court did not rule out the possibility of a former president overcoming an incumbent president on executive privilege matters,” Cannon said.
Michael Stern, who served as the lead counsel for the US House of Representatives, told Insider that Cannon could be taking special pains to head off any attempt by Trump to undermine the investigation.
Cannon “considered the question of whether a former president could ever successfully assert executive privilege in the current circumstances to be an open one and therefore she decided that it was best to have a special master conduct a document-by-document review before reaching that unresolved question,” he said.
“The court wants to give Trump every possible procedural protection (even though she knows it very likely will do him no good) so as to obviate claims that the process was unfair, illegitimate, rigged, etc.,” Stern added.
It is unclear how long the special master would take to review the records.
The Justice Department is widely expected to appeal to Cannon’s decision.
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