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Might Trump's Personal Judge Actually Appoint a Special Master? [1]

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Date: 2022-09-02

I’ve just spent the last hour reading a blow-by-blow account of yesterday’s hearing on whether to appoint a Special Master to oversee the DOJ’s investigation of Trump’s hoard of government documents at Mar-a-Lago. It’s unsettling to say the least:

www.lawfareblog.com/…

From everything we know here, and from everything you would hear listening to talking heads on news outlets such as MSNBC, you would presume it was a slam-dunk case. That allowing the Trump team to assert Executive Privilege against the current Executive Branch would be turning the rule of law on its head, and in effect creating a precedent whereby an ex-President could be held harmless for—well, just about anything. If Trump gets away with seeking out a “friendly” judge, with asking for an “unbiased” third party Special Master to determine what evidence can and cannot be retrieved by law enforcement officials, is there any crime he can’t wriggle out of?

And yet . . .

This hearing was scary. The judge, instead of putting the onus on the Trump team to prove why they NEED a Special Master, put the onus on the DOJ to prove what harm would be done. And from reading the account (not the transcript, because recordings and transcripts of any kind were not allowed), they were caught flat-footed. They were constantly on the defensive:

Judge Cannon interjects to ask why a special master appointment would be unprecedented. Edelson replies that there’s never been a special master appointed on executive privilege issues. Judge Cannon is having none of this. Isn’t that, she asks, because there’s never been a seizure from a former president like this? Edelson tries to shift gears, pointing to Nixon v. GSA, which held that the examination of Richard Nixon’s records by officials within the executive branch did not violate presidential confidentiality. But Judge Cannon remains skeptical. Observing that Edelson might be “overreading Nixon,” she queries why “for some period of time,” a former president couldn’t assert executive privilege over certain documents. In response, Edelson implores the court to “focus on the legal provisions.”

The judge helped the Trump team at almost every turn. Team Trump did not even bring up the question of Executive Privilege and whether the SM would also be allowed to look for those cases among the documents—the judge did, at which point Team Trump eagerly gobbled up the bait and ran with it:

. . Trusty says that the special master would examine the seized documents and possibly resolve issues related to attorney-client privilege, attorney work product privilege, or matters related to the Presidential Records Act (PRA). Noticing . . . that Trusty omitted executive privilege from his response, Judge Cannon queries whether the special master would examine any other privilege-related issues. Trusty affirms that executive privilege is “in play” as well.

There were other issues. The Trump Team’s case was based on general principles, easy to understand and digest, and emotionally based. In contrast, the government lawyers’ statements were full of legalese and numbers. Ideally, a judge would not be swayed by such a thing. But then of course we’re not looking at ideal circumstances here.

Judge Cannon appeared determined to force the DOJ to present iron-clad reasons why she should not appoint a SM:

Now Judge Cannon muses about what, exactly, the harm is in appointing a special master. She wants to know if there is anything other than a general concern with delay that holds the government back from endorsing the idea. Edelson stresses that delay of a criminal investigation is a legitimate concern, as would be the “unprecedented” finding that executive privilege could be asserted against members of the executive branch pursuing executive branch business. Finally, she says, there’s an ongoing risk and damage assessment taking place at the Office of the Director of National Intelligence (ODNI), and the appointment of a special master could interfere with that process. Judge Cannon, apparently unconvinced by this response, asks if Edelson’s view would change if she ordered the special master to proceed without interfering with the ODNI review but pausing the criminal investigation while he or she sorts out privilege questions. Edelson insists that even that would cause great harm.

And while we here can list any number of reasons, those didn’t come across strongly or clearly in the hearing. Is she actually going to do this? Are we going to have to watch DT trumpet his “”victory” all over the media? Is the DOJ going to be painted as overreaching and political, after all its efforts? Srsly?

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[1] Url: https://www.dailykos.com/stories/2022/9/2/2120414/-Might-Trump-s-Personal-Judge-Actually-Appoint-a-Special-Master

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