Some Thoughts on the Special Master Order
Judge Aileen Cannon's order bends over backward to accommodate Trump and reaches some odd results. Whether that's important remains to be seen.
Dear listeners,
Judge Aileen Cannon’s Labor Day order, saying she will appoint a special master to review documents seized from Mar-a-Lago and enjoin the government from using the documents for criminal investigative purposes in the meantime, is a speed bump for the federal government’s investigation of Donald Trump’s handling of classified documents.
Ken and I turned around a quick episode about the order for premium subscribers, which you can find here if you are interested.
Even if you’re not ready to upgrade yet, I wanted to share some high-level observations from my conversation with Ken.
Cannon’s order isn’t surprising mostly because she already said publicly that she was inclined to support a special master. But her reasoning is abnormal, and this isn’t a ruling you’d expect to see in a normal case. To reach her decision to give Trump equitable relief, Judge Cannon considers the balancing factors and really bends over backwards to give more weight to his concerns than the government’s. Plus, she works hard to address Trump’s weak representation — responding to arguments his lawyers should have made in addition to the ones they actually did make. Perhaps the best argument for what she did is that the case is in fact abnormal — it involves a search of a former president’s home, which draws intense public interest and political scrutiny and warrants the extra care and legitimacy that can be conferred through a special master’s review of the seized documents. However, that does amount to saying Trump should get special treatment because of his high profile and his status as a political flashpoint.
It’s not yet clear how much the order matters. One argument Judge Cannon makes in justifying the appointment of a special master is that doing so isn’t likely to impose a very burdensome delay on the government’s investigation. After all, the taint team completed its first cut of a privilege review within three weeks. Ken told me he thinks the special master process is likely to be completed in October, so we may not be in a holding pattern for long. It’s also unknown how much a restriction on the use of the seized documents affects other investigative steps the government might take in the meantime.
Judge Cannon has said she will ask the special master to review documents for executive privilege — not just for attorney-client privilege — and it’s unclear what that will mean. A review for attorney-client privileged documents is a relatively straightforward matter. It’s less clear what set of documents would be identified as those over which Trump might make an assertion of executive privilege, and that’s before you even reach the question of whether there’s any such claim that he would prevail on. (As Ken and I have discussed before, it’s hard to see how you could assert executive privilege against the executive branch, and also, Trump is no longer the “executive,” anyway, because Biden is.) On the other hand, the whole executive-privilege doctrine is a judge-invented pile of sludge, so it can be hard to figure out where it begins and ends. Judge Cannon herself raises the possibility that he may not prevail on much in the end, but she’ll have to set some sort of parameters about what the special master is even looking for with regard to executive privilege.
If you want to listen to the show (and hear about what next steps we’re watching for, plus a discussion about whether the special master appointment means the taint team should be sacked) you can go here and become a paid subscriber.
We’ll be back in your podcast players soon with a new episode where we’ll talk about subsequent developments in this case, Fat Leonard, and more.
Best,
Josh