RUTHFULLY YOURS

U.S. District Court Judge Aileen Cannon granted former President Donald Trump’s request for a special master to be appointed to review materials that the FBI seized during its raid of Mr. Trump’s Mar-a-Lago residence several weeks ago. The special master would not be affiliated with the government and thus would presumably provide an objective third-party assessment of potential attorney-client and executive privilege claims by the former president. The Department of Justice was directed to halt any further use of the materials seized from Mar-a-Lago for investigative purposes “pending completion of the special master’s review or further Court order.” However, the Office of the Director of National Intelligence could continue conducting its own separate classification review and intelligence assessments.

In issuing this order, Judge Cannon upheld the fundamental constitutional principle of due process while balancing national security concerns. While recognizing that “restraints on criminal prosecutions are disfavored,” she concluded nevertheless “that these unprecedented circumstances call for a brief pause to allow for neutral, third-party review to ensure a just process with adequate safeguards.”

Judge Cannon added: “To appoint a special master to make privilege determinations while simultaneously allowing the Government, in the interim, to continue using potentially privileged material for investigative purposes would be to ignore the pressing concerns and hope for the best.”

Among the seized materials were personal items such as medical documents, correspondence related to taxes, and accounting information. “In addition to being deprived of potentially significant personal documents, which alone creates a real harm,” Judge Cannon wrote, “Plaintiff faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public. Further, Plaintiff is at risk of suffering injury from the Government’s retention and potential use of privileged materials in the course of a process that, thus far, has been closed off to Plaintiff and that has raised at least some concerns as to its efficacy, even if inadvertently so.”

In short, Judge Cannon is trying to provide some corrective measures to counter the potentially grave harm to Mr. Trump from the FBI’s unfocused, far-reaching seizure of voluminous materials from the former president’s residence.

The Department of Justice had vigorously opposed the Trump legal team’s motion for the appointment of  a special master, claiming that a special master review was unnecessary and could jeopardize sensitive national security interests. The Department of Justice asserted that its own document filtering process had already separated the documents deemed potentially subject to a claim of attorney-client privilege. That would be akin to relying on the fox to guard the hen house.

Judge Cannon is assigning the special master the responsibility to review “seized property for personal items and documents and potentially privileged material subject to claims of attorney-client and/or executive privilege.” The person to be named to this position and the “exact details and mechanics of this review process will be decided expeditiously following receipt of the parties’ proposals,” Judge Cannon wrote.

The law is still unsettled as to whether a former president retains the right to assert executive privilege over certain internal deliberative communications that occurred during his term in office when the current president has decided to waive the privilege. Judge Cannon was not willing to dismiss out of hand, as the Department of Justice urged her to do, the notion that Mr. Trump retained such a right regarding his administration’s internal deliberative communications, irrespective of President Biden’s preference for a waiver.

“Even if any assertion of executive privilege by plaintiff ultimately fails in this context, that possibility, even if likely, does not negate a former president’s ability to raise the privilege as an initial matter,” Judge Cannon wrote. “Accordingly, because the privilege review team did not screen for material potentially subject to executive privilege, further review is required for that additional purpose.”

Judge Cannon quoted Supreme Court Justice Brett Kavanaugh, who had stated in connection with the Supreme Court’s order earlier this year allowing the release of certain Trump White House documents to the House committee investigating the January 6^th Capitol breach: “A former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim. Concluding otherwise would eviscerate the executive privilege for Presidential communications.”

In its search-and-grab raid at Mar-a-Lago, the FBI used a heavy-handed sledgehammer approach in conducting its operation. Mr. Trump has a good constitutional argument that the warrant authorizing the search failed to meet the Fourth Amendment’s requirement that warrants only be issued that “particularly” describe “the place to be searched, and the persons or things to be seized.” [Emphasis added] The Mar-a-Lago warrant allowed the FBI to go on a fishing expedition that swept up in its wide net personal effects and materials, along with many privileged documents. The special master’s review ordered by Judge Cannon will pause the Department of Justice’s use of the seized materials in its investigation until the true extent of the government’s overreach can be objectively assessed.