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Judge’s special-master order a test of Trump’s post-White House powers

Former president Donald Trump acknowledges applause from the crowd at a speaking event last year in Greenville, N.C. (Jonathan Drake/Reuters)

The Justice Department must decide by Friday whether to raise the stakes in its investigation into Donald Trump’s possible mishandling of classified information by appealing a controversial ruling about the rights and powers of former presidents.

As they scrutinize Trump and his advisers, Justice Department lawyers are weighing whether to challenge a federal judge’s uncommon order to appoint an independent reviewer, called a special master, to assess more than 11,000 documents seized by the FBI from Trump’s Florida residence last month.

At issue are untested legal questions about the extent to which assertions of executive privilege, typically invoked by sitting presidents to protect high-level deliberations and communications, can be applied to a former president at odds with a successor’s administration.

If the Justice Department does appeal, the ensuing legal fight could take longer than any document review by the special master — and there is no guarantee that the government would prevail, particularly if the case were to reach the Supreme Court, to which Trump appointed three justices during his presidency and solidified a 6 to 3 conservative majority.

The Post's Perry Stein explains how a special master will identify if any documents seized by the FBI are protected by attorney-client or executive privilege. (Video: The Washington Post)

“The Supreme Court has said it’s an open question the extent to which a former president can assert claims of executive privilege against a sitting president,” said former federal judge Paul G. Cassell, who teaches at the University of Utah law school. “Maybe this will be the case that determines and helps settle that open question.”

The decision by U.S. District Judge Aileen M. Cannon — a Trump nominee confirmed days after President Biden won the 2020 election — says the Justice Department cannot continue reviewing the materials taken from Mar-a-Lago on Aug. 8, or use them in its investigation, until the special master concludes his or her examination. Trump’s legal team has said a special master is needed to ensure a fair process.

Some legal experts who have followed the matter said the government may forgo an appeal if the investigation is on hold only a short time while the special master sorts through the material.

Mary McCord, who served as acting assistant attorney general for national security during the Obama administration, said there are legitimate legal reasons to appeal, but also potential upsides to accepting the judge’s plan for an independent review. Involving a third party could “inoculate the department from criticism down the line about having been the ‘fox in the hen house,’” she said, suggesting it would nullify complaints about the government’s use of an in-house team to separate out the sensitive documents that were seized.

The warrant authorizing the search of former president Donald Trump’s home said agents were seeking documents possessed in violation of the Espionage Act. (Video: Adriana Usero/The Washington Post)

McCord characterized the judge’s legal analysis as “flawed,” but said the ruling does not completely halt the investigation. Prosecutors can still interview witnesses and obtain additional search warrants and subpoenas, particularly for events that occurred before the search at Mar-a-Lago. A previous Justice Department filing in the case described the actions in May and June of two of Trump’s representatives, Evan Corcoran and Christina Bobb, in a way that suggested they may have obstructed the investigation.

Trump’s lawyers had told the government in response to a May subpoena that they conducted a diligent search for all classified material, and handed government agents 38 more classified documents, according to a Justice Department filing. But the August search turned up more than 100 additional classified documents scattered among more than two dozen boxes that agents seized.

In her ruling Monday, Cannon said a special master would review the seized documents to identify any records protected by attorney-client or executive privilege. Cannon sided with Trump’s lawyers in finding that Trump should be able to test whether the former president retains some protections. She also raised concerns that some of Trump’s personal materials, including medical documents and tax-related correspondence, were intermingled with government records that agents removed.

Legal experts called Cannon’s decision problematic because it upends the usual course of a criminal investigation and suggests there are different rules for a former president. In a typical investigation, the target of a search would be entitled to a hearing after an indictment to challenge the validity of an underlying search warrant. In Trump’s case, the former president has not been charged and the investigation is ongoing.

“It’s stunning insertion of the courts into what has historically been exclusively executive process,” said Steve Vladeck, a constitutional law professor at the University of Texas law school. “This is just not the way our legal system is set up.”

If Cannon’s decision stands, legal experts said, it would allow the targets of investigations to disrupt law enforcement operations before a case is charged or goes to trial. Orin Kerr, a criminal law expert at the University of California at Berkeley law school, predicted that the government would appeal based on concerns about the separation of powers.

“If a suspect can go into court and get an order to stop the criminal investigation, it’s hard for the executive branch to function,” Kerr wrote in a tweet.

It is not exceptional for judges to appoint special masters to review documents from searches of law firms, for instance, because of concerns about attorney-client privilege. It happened in recent years after FBI searches of the homes and offices of Trump’s personal attorneys Rudy Giuliani and Michael Cohen.

But unlike those cases, the Justice Department told Cannon that it has already sorted through the documents from Mar-a-Lago using a “filter team” to separate potentially privileged records. The government emphasized in court filings that a former president cannot invoke executive privilege to keep the Justice Department from accessing material because the department is part of the executive branch.

Cannon disagreed, saying the department “arguably overstates the law.”

Two Supreme Court decisions in the 1970s involving former president Richard M. Nixon suggested that a former president could in some circumstances assert executive privilege. The justices in 1974 ruled against Nixon and ordered him to turn over Oval Office recordings. But the parameters of those claims are not resolved and Congress subsequently passed the Presidential Records Act, establishing that a president’s official records belong to the public, not the occupant of the office.

In a separate dispute between Trump and Congress in January, the Supreme Court rejected the former president’s request to stop the release of some of his White House records to the congressional committee investigating the Jan. 6, 2021, attack on the Capitol. The high court’s order did not provide its reasons for turning away Trump’s application.

Cannon said in her ruling Monday that the justices have not ruled out the possibility of the interests of a former president prevailing over a sitting president when it comes to executive privilege. She quoted Justice Brett M. Kavanaugh, one of Trump’s nominees to the Supreme Court, who wrote separately in the Jan. 6 case.

“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,” Kavanaugh wrote. “Concluding otherwise would eviscerate the executive privilege for Presidential communications.”

Cannon, a member of the conservative Federalist Society, was confirmed by the Senate in a vote of 56-21 in November 2020 with the support of a dozen Democrats. She worked as an assistant federal prosecutor in Florida and as a law clerk to an appeals court judge. She is a graduate of Duke University and University of Michigan law school.

Cannon now sits on the bench in Fort Pierce but was assigned to Trump’s case through the court’s random lottery system in the Southern District of Florida, whose five divisions include courthouses in both Fort Pierce and West Palm Beach. Judges from all five divisions can be assigned to cases in any of the courthouses. In this case, court documents show Trump’s lawsuit was filed in West Palm Beach, the same courthouse where a magistrate judge approved the Mar-a-Lago search warrant. But it was then assigned to Cannon, who traveled to the West Palm Beach courthouse last week to hear arguments in the case.

Ryan Goodman, a New York University law professor and former Defense Department special counsel, said Cannon’s opinion goes out of its way to explain that the court’s intervention is necessary because of Trump’s status as a former president.

“The opinion makes explicit what many of us have understood: There are special rules for former president Trump,” Goodman said. “But the justice system is supposed to be based upon the proposition that nobody is above the law and that we’re all treated equally by the criminal justice system.”

Perry Stein and Spencer S. Hsu contributed to this report