Litman: The special master order for Trump's Mar-a-Lago documents is perverse and potentially disastrous (via latimesopinion)
U.S. District Judge Aileen Cannon’s order requiring the appointment of a special master to sift through the property seized in the search of Mar-a-Lago has found few defenders. Its tendentious factual account and muddled legal reasoning are easy to denigrate.
The department should appeal, even though it means risking a bad outcome from the Donald Trump-appointed judges on the U.S. 11th Circuit Court of Appeals and an increasingly partisan Supreme Court.With his request for a special master, Trump went shopping for a judge on the Federal District Court for the Southern District of Florida rather than submit it to the magistrate judge who already was handling the document search.
Cannon to the rescue. Her opinion repeatedly employed a clumsy gambit for getting around the elephant in the room. A fraction of the material seized in the search included personal documents and effects — medical documents and tax correspondence. Cannon found that Trump’s interest in the personal documents was enough to confer standing for the rest.
She also ordered the criminal investigation to make no further use of the seized documents, even as a national intelligence investigation can proceed. But that means that the attorney general and deputy attorney general, who oversee both investigations, risk disqualification from the case if they look at any of the documents as part of the national intelligence inquiry. Such an outcome, and the order itself, constitute remarkable judicial intrusions on the executive branch.
At least this part of her order is relatively harmless. Settled law has established what constitutes attorney-client privilege and when the subject of an investigation’s rights have been abridged. Special masters appointed in these cases are able to just call balls and strikes, separating what can and can’t be handed over to prosecutors.There is no law governing when, if ever, a former president can assert executive privilege over documents from his tenure.
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