Following Monday’s federal judge’s ruling on appointing a “special master” to review documents seized from former President Donald Trump’s Mar-a-Lago home, executive privilege is expected to become a problem as the DOJ will likely appeal the decision.
Judge Aileen Cannon, who was appointed by Trump, rejected the DOJ’s “tight view” of executive privilege, noted CNN’s John King on Inside Politics, adding that “the Justice Department’s view is that Donald Trump is no longer president, he has no executive privilege.“
He said the judge is not saying “he definitely does,” but rather leaves the role of executive privilege as an “open question.”
Arguing in favor of the special master, the judge’s decision noted: “As the plaintiff explained in court, the investigation and treatment of a former president is of unique interest to the general public, and the country is best served by an orderly process that promotes self-interest and the perception of fairness.
The judge’s overall decision is “legally unwarranted,” Jennifer Rodgers, a former federal prosecutor, told King.
“There has simply never been a case where irreparable harm has been shown by being the subject of a criminal investigation. This is one of the main things that the Department of Justice does, the executive branch , it’s to criminally investigate people. So the idea that it can establish irreparable harm the harm to me still says it’s a legally wrong decision,” she said of the master. special.
Rodgers added: “On the other hand, this idea that it’s so extraordinary and that she grants it because it’s the former president, I think that’s kind of good news for the Department of Justice, because one of the problems with that is that it sets a precedent for other defendants down the road who say, “Hey wait a minute, you’ve been going through my stuff, I want a special master even though it’s not my attorney’s office and there’s no reason to believe there’s a lot of privileges that apply, so I think that bit is good.”
Rodgers explained that there is a silver lining, “in the sense that I don’t think ultimately there will be a lot of attorney/client confidential material found…very little attorney/client confidential material and even executive privilege on the executive side, executive privilege would only apply if the documents were created in the executive, really, in the White House, and so many of those documents will have been created elsewhere.”
“So even if it delays things and slows them down, which is bad for the DOJ and their case, I think at the end of the day we’re not going to see a lot of special documents pulled by the master,” she added.
CNN’s Evan Perez noted, “This issue of executive privilege is kind of just weird, isn’t it? Because it’s never been argued in anything like this. So we don’t know where the courts are going to end up with this, John, and certainly we don’t know if this will have to go to the Supreme Court before we can even move on.”