Executive privilege likely key battleground after special master approved in Trump case
TULSA, Okla. (TND) — A special master has been approved to look for personal and privileged documents seized from former President Donald Trump during the FBI raid at Mar-a-Lago.
Trump’s team requested the special master, and U.S. District Judge Aileen Cannon agreed, writing that the appointment would help “ensure at least the appearance of fairness and integrity under the extraordinary circumstances.”
The Justice Department could appeal the judge’s decision to grant the special master.
Richard Serafini, a former Justice Department prosecutor who’s now a criminal defense attorney in Florida, told The National Desk he expects the Justice Department to forgo an appeal of the special master decision and let the process play out.
And there’s benefit to the Justice Department if it decides not to appeal. The faster this process plays out, the faster the government’s investigation can proceed.
The judge told the government it has to stop reviewing the seized documents until the special master finishes their work or until she issues a new court order.
The special master is tasked with identifying documents that contain privilege. But it'll be up to the judge to determine if any documents should be pulled from the investigation based on privileged information.
The Justice Department has already argued a special master would be redundant to the weeding process it’s performed with its “privilege review team.”
Serafini expects the government will fight the exclusion of any document based on a finding of executive privilege.
He said it’s possible the Justice Department could agree to isolate documents that are found to contain attorney-client privilege, however.
“The ultimate decision is up to the judge,” Serafini said.
The former president’s team also hopes for the return of seized documents, though the judge said she’ll reserve that ruling.
The sides will present the judge with a list of potential special masters, likely outside lawyers or former judges. That list is due by Friday.
The judge will then appoint the special master, assuming the Justice Department hasn’t appealed.
Judge Cannon was a Trump appointee, and some legal experts disagree with her decision.
Ronald S. Sullivan Jr., a Harvard Law School professor, told The New York Times he found the ruling “deeply problematic” for giving special consideration to a former president, and Samuel W. Buell, a Duke University law professor, told the Times the “ruling is laughably bad.”
Serafini doesn’t share those concerns.
He said he’s confident the judge ruled based on the circumstances of the case and not out of political loyalty. Serafini said he understands the logic behind the judge’s decision.
“I’d say it’s unprecedented,” he said of the circumstances involved with this case.
The judge acknowledged as much in her written order:
“As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.”
The special master might be one person or a team of people, but Serafini says they will need to have proper security clearance to view the documents. If they don’t already, that is another issue that could slow down the case.
Serafini expects the process involving the special master to last weeks, not months. They have roughly 11,000 documents to comb through.
