Lessons learned from the ruling granting Trump’s request for a special agent in the Mar-a-Lago investigation

But she disagreed with Trump’s allegations that his constitutional rights were “ruthlessly ignored” in the search.

Important win for Trump

The main point is simple. This ruling is a major legal victory for Trump.

Trump filed lawsuit special master A person will now be appointed to review the materials the FBI seized last month, who may determine that certain materials are outside the scope of the FBI’s investigation.
Judge grants Trump's 'special master' request. Review materials seized from Mar-a-Lago

Cannon has embraced skepticism raised by Trump’s attorneys about the unprecedented search at the Florida resort.They wondered whether investigators could be trusted to properly screen the thousands of seized documents. I wondered. The judge rejected the Justice Department’s assurances that its internal filter team had already curated material that could be subject to attorney-client privilege.

Ultimately, the appointment of a special master may only delay federal investigations into the documents brought to Mar-a-Lago, but it introduces new uncertainties and unpredictability into investigations. increase.

The former president did not quite get everything he asked for. For example, the judge did not rule back to him the materials seized from his home.

The immediate next step focuses on special master rules

Cannon left many key questions unanswered about how the Special Master will work. and focused on solving those logistics problems.

She ordered Trump’s lawyers and prosecutors to “consult” some high-priced items. What are their specific “duties and limitations”? What should their schedule and pace be and how much are they paid for their work?

Mar-a-Lago's search inventory shows classified-marked documents intermingled with clothing, gifts, and press clippings

Both sides were told to file a “joint submission” by Friday, detailing their answers to those questions. It seems unlikely that you will.

Cannon said he would “expeditiously” issue a court order setting out “the exact details and mechanics of this (special master) review process” after the joint application is filed.

She needs to resolve disputes between the parties regarding “whether certain seized documents constitute personal or presidential records” and “whether certain seized personal items have evidentiary value.” pointed out.

Scheduled review of “officer privileges”

Trump said a special master review would have to go beyond documents subject to attorney and client privilege, and would also exclude material subject to executive privilege.

Executive privilege refers to private communications that the President makes with advisors and other types of internal communications within the Executive Branch that are withheld from public view. Controversy over the privilege has surfaced in congressional inquiries, but executive privilege, especially when former presidents have argued it should apply when the current president refuses to claim it. is an unresolved area of ​​law.

A Moment of Revelation at Mar-a-Lago's 90-Minute Special Master Hearing

Canon’s order requires the special master to examine documents for “executive privilege” concerns, and the work is more extensive than the attorney-client privilege review that is usually done when a special master is appointed. (According to Canon’s orders, any documents that may be covered by Attorney-Client Privileges will also be part of this special master’s review.)

She didn’t elaborate on the parameters that a special master should consider.

In his ruling, Cannon said the Supreme Court had not ruled out “the possibility that a former president could win an executive privilege case against a sitting president.” She quoted from a 1977 Supreme Court case concerning documents from President Richard Nixon’s White House, and a Supreme Court order earlier this year allowing Trump White House documents to be released to House investigators.

As for the scenario in which the Supreme Court has argued in a recent lawsuit that a former president claims executive privilege over material waived by an incumbent, Cannon said the question was “unprecedented and It raises serious and substantive concerns,” he said.

she drew from another picture statement According to Justice Brett Kavanaugh, Kavanaugh said that if the court concluded that a former president “cannot exercise presidential communications privileges over communications that occurred while he was in office,” Kavanaugh would not allow “the president’s We will revoke communication privileges.” The current president does not support the claim of privilege. ”

Cannon acknowledged that Trump’s claim to presidential privilege may ultimately fail, but said it “doesn’t negate the former president’s ability to escalate privilege as the first issue.” .

Intelligence review continues

The judge hasn’t stopped U.S. intelligence agencies from continuing to examine the documents as part of damage assessments for potential risks to national security.

Director of National Intelligence Avril Haynes told Congress last month that intelligence agencies would conduct an assessment of “potential risks to national security arising from the disclosure of relevant documents.” Intelligence agencies have also been working with the FBI since mid-May to investigate some of the documents taken from Mar-a-Lago, CNN previously reported.

The FBI’s investigation has been linked to at least three potential crimes — violation of the Espionage Act, obstruction of justice, and criminal handling of government records — and the intelligence review has largely been linked to the disclosure of materials kept in Trump’s home. There is interest in determining whether there were resorts and residences that could compromise sensitive sources.

Trump received special consideration as a former president

The judge repeatedly noted the “unusual circumstances” that existed in the special Masters dispute, given that it involved an “unprecedented” search of the former president’s home. He said there was a risk of “stigma” associated with the indictment, and said the threat would be greater in this scenario because Trump is a former president.

“As a function of the plaintiff’s previous position as President of the United States, the stigma associated with the seizure of the subject is in a league of its own,” she wrote. would result in an order of magnitude different reputational damage.”

There were other instances where Cannon classified Trump as a special defendant as a former president. She said Trump’s reliance on “cooperation between previous and current administrations” on exchanging documents also works in her favor. (The Justice Department points to several instances of lawsuits in which Trump’s team walked its negotiations slowly.)

In a footnote refuting the DOJ’s assertion that a special master is usually appointed to review searches of attorney’s offices, Cannon notes, “These concerns, at least to a large extent, are the I didn’t understand why it didn’t apply to places and homes.” Former president. ”

What Can the Justice Department Do Now?

The ruling does not stop the Department of Justice’s criminal investigation. Trump is still in legal danger. However, this ruling limits what investigators can do and could slow things down a bit while a special master review is underway.

A Justice Department spokesman said Monday that the agency was “considering the opinion” and considering “appropriate next steps.” It is clearly the next possible option for prosecutors.

If prosecutors appeal, these proceedings will be handled by the 11th Circuit Court of Appeals, based in Atlanta. The court has his four full-time justices appointed by Democratic presidents and his seven full-time justices appointed by Republican presidents, including six by President Trump.

A panel of three judges will be randomly selected to hear the appeal. Whichever side loses the round will have the opportunity to ask the entire 11-member court to re-hear the appeal in the ‘Grand Chamber’. The losing party can also appeal to the conservative-majority Supreme Court.

DOJ officials may choose to appeal only some of Cannon’s multifaceted judgments.

Andrew Weisman — Respected former Justice Department official, former Robert Mueller Team prosecutor, prominent Trump commentator — murmured The Justice Department should “immediately appeal” some of the rulings that prevent investigators from doing anything with seized materials, which he calls “an unappealably wrong precedent.” is.

Judge Cannon Is Trump’s Nominee — Does It Matter?

Federal judges routinely handle matters involving the president who benched them. The fact that Cannon was appointed by Trump and that Trump filed this lawsuit is no reason for Cannon to decline the lawsuit, but if she thinks it creates a perception of unfairness, she should. I can.

Trump has a history of politicizing the judiciary by attacking “Judge Obama” and openly saying he expects the appointee to make a legal bid. But this distorted view of judge loyalty seems rather one-sided, with most judges ignoring his out-of-court rhetoric and trying to focus on the facts, while Trump is political. expects loyalty.

How does the DOJ’s so-called “60-day rule” for investigations work?

A question surrounding this and other investigations involving the former president is how the Justice Department will view the so-called “60-day rule” as it applies to investigations involving Trump.

This “rule” is DOJ’s internal policy to discourage public investigative procedures that could affect an election 60 days before Election Day. Trump’s allies argue that the State Department’s investigation of Trump documents violates this principle, even though Trump himself is not a candidate.

It’s not clear whether the DOJ had adjusted its approach to document investigation with that rule in mind, nor whether the appointment of a special master would affect those plans if prosecutors did. It’s not clear.

The investigation appears to be in a very early stage. The prosecutor explained so in the trial proceedings. The types of attorneys publicly involved in the investigation — mostly from her DOJ’s National Security Agency — also suggest the investigation is in its early stages, the former official said. increase.

Source: www.cnn.com

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