A judge’s order approving a special master to review documents the FBI took from former President Donald Trump‘s 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 the evidence seized last month from his Mar-a-Lago estate, and temporarily blocked parts of the Justice Department’s investigation into the troves of top secret and classified documents retrieved by federal agents.
Cannon, a 41-year-old Trump appointee, also put forth legal defense arguments that Trump’s team hadn’t made, including that the former president could suffer reputational “injury” if the Justice Department indicted him.
Sept. 6, 202206:23
Legal experts blasted the overall ruling and questioned how it could be implemented, while warning that an appeal by the government could drag the investigation out further.
“I think it’s a corrupt decision. I think it is a special law just for Donald Trump by a Trump appointee, and it is unmoored from precedent, insupportable in law, will not be approved of by anybody who isn’t a Trump fanatic,” Paul Rosenzweig, a Department of Homeland Security official under former President George W. Bush, told NBC News.
“It is supremely disappointing, because up until now… the courts have been the last bulwark against excess, and this decision suggests that at least some of Trump’s judges put loyalty to the man over loyalty to the rule of law, and that’s deeply unfortunate,” said Rosenzweig, who was senior counsel to Ken Starr, the independent counsel who investigated Bill Clinton during his presidency.
Bradley Moss, a lawyer who specializes in national security issues, said Cannon’s decision is “not well-founded in any law or legal theory” and contained “far better advocacy for the former president’s legal position than anything his actual lawyers put forward.”
“My view is that, at a minimum, the Justice Department is going to have to appeal” the part of the order that temporarily stops the DOJ from using the seized documents to proceed with its criminal investigation, Moss said.
But, he cautioned, an appeal is no easy path. The 11th Circuit Court of Appeals, which would hear any appeal in this case, “has taken a particular conservative turn, and the U.S. Supreme Court is 6-3 in favor the conservatives. It’s not a foregone conclusion they’d win on appeal,” Moss said.
Sept. 6, 202202:21
Brandon Van Grack, a former counterespionage prosecutor who worked on the Mueller investigation into Russian interference in the 2016 election, said there “would be a strong impulse to appeal,” especially since the criminal investigation by the Justice Department and damage assessment by the Office of the Director of National Intelligence are likely going hand-in-hand and “can’t be bifurcated.”
A portion of Cannon’s order gave the Office of the Director of National Intelligence permission to continue its review of documents for a damage assessment, a process the Justice Department has been playing a role in.
“The criminal investigation is informing the intelligence investigation,” Van Grack said, adding that DOJ investigators had likely been doing fingerprint searches on the classified documents in order to determine who handled them — a key step in determining how much the documents might have circulated.
Cannon’s ruling could also block investigators from asking witnesses about who had access to the documents. “It will delay and impair the investigation,” Van Grack said. “They won’t have complete information.”
Legal experts also took issue with Cannon saying the special master should review the documents for potential executive privilege claims, instead of limiting the examination to traditional attorney-client issues.
Trump’s team has argued that a special master — essentially a neutral third-party appointed by the court — was necessary because they could not rely on the so-called filter team the Justice Department used to separate out privileged documents, saying they could not be expected to “trust the self-restraint of currently unchecked investigators.”
The Justice Department contends executive privilege is not up for debate because the government documents seized from Mar-a-Lago do not belong to Trump.
“He is no longer the president. And because he’s no longer the president, he had no right to those documents,” the Justice Department’s Jay Bratt told the judge at a hearing last week.
Rosenzweig agreed, and called it “absurd” that a special master should be searching out potential executive privilege issues.
“I don’t think there is a good roadmap,” Rosenzweig said, noting there’s no body of law on executive privilege for a special master.
“I don’t know how a special master would proceed, which means inevitable delay and dispute,” he said.
Even some of Trump’s former allies bashed Cannon’s ruling.
“The opinion, I think, was wrong, and I think the government should appeal it. It’s deeply flawed in a number of ways,” former Attorney General Bill Barr said in an interview with Fox News.
“I don’t think the appointment of 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 ballgame so much as maybe we’ll have a rain delay for a couple of innings,” Barr said.
Barr said the 11th Circuit could expedite the appeal, but acknowledged “it could take several months to straighten out.”
Chuck Rosenberg, an NBC News legal analyst and a former U.S. attorney, said, “There seems to be a trade-off between appealing a poorly reasoned judicial decision, on one hand, and further delaying a part of their investigation on the other. In the end, the government will very likely get to which it is entitled — one way or the other — but the path forward looks a bit murky.”
Trump’s lawyers and DOJ 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 and a former Justice Department official, said whoever they choose is “going to have to have an incredibly high security clearance now or obtain one in a very short period of time.”
He also predicted that whoever gets picked would be able to work fairly quickly.
Saltzburg, who has worked as a special master, said the reason judges generally want special masters “is 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 that’s unfolding in this case means it’s 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 novel interpretation of the law,” making impossible to know how the case will shake out.
“The word unprecedented gets thrown around a lot, especially in this case, but this case is literally unprecedented,” McClanahan said. “It’s not about anything that we’ve ever dealt with before, and as a result, using the past to inform what will happen next is a crapshoot.”
Source: | This article originally belongs to Nbcnews.com
