From the Left



Special Privileges: The Judge Granting Trump a Special Master Handed Him a Special Deal

Jeff Robbins on

Former President Donald Trump's lawsuit demanding that the Justice Department's investigation into his purloining and concealing of classified documents be frozen and taken over by a "special master" was a shrewd maneuver for this reason: He doesn't seem to have any actual defense to the criminal charges headed his way -- unless he was entitled to repurpose the documents as stocking stuffers.

Despite The Former Guy's untethered cries that the FBI consists of "monsters" and "wolves," Trump and his lawyers know that if he is indicted, his goose is very likely cooked.

Which is why Trump's lawsuit, filed in a particular Florida courthouse so that a particular judge appointed by Trump drew the case, was so clever. Delay is terrific for any prospective criminal defendant, and it is especially terrific if it appears you're going to the slammer should a criminal case be brought. Judge Aileen Cannon's ruling stopping the investigation into Trump in its tracks and inserting whomever she selects into a position to give thumbs up or thumbs down to the investigators' work brought early strains of "It's Beginning to Look a Lot Like Christmas" to Mar-a-Lago's halls.

Trump's legal arguments were heavy on rhetoric, light on the law. His yearlong game of "hide the ball," with classified documents playing the part of the ball, was nothing more than a silly matter akin to "an overdue library book." The search of a former president's home was "unprecedented" -- quite true, but so is a former president pilfering classified documents and then obstructing a Justice Department investigation into said pilfering.

Cannon wasted no time showing that in filing the lawsuit with her, Trump's lawyers had come to the right place. Promptly after receiving Trump's request for a special master, the judge announced that she intended to grant it -- before even doing the Justice Department the courtesy of receiving its opposition. This was a somewhat ostentatious display of injudiciousness.

But it was just the beginning. Trump's lawyers are preparing to claim that the classified documents taken by him are covered by "executive privilege," supposedly exempting him from prosecution. His executive privilege claim is baseless for at least four reasons. The documents do not belong to him. There is no authority giving a former president a claim to executive privilege. The current president has stated the documents are not covered by executive privilege. And the Supreme Court held in the case involving President Richard Nixon's tapes that even where the executive privilege exists, it is overridden by the interests of the criminal justice system -- which obviously apply here.

No matter. Cannon simply breezed past the inconvenient law, ruling that a special master would be appointed to review 13,000 documents for executive privilege -- a privilege that has no place here.

The handwriting on the wall was on display during the hearing on the matter, when the judge had to repeatedly remind Trump's lawyers that they were claiming executive privilege. When they stated that they based their argument solely on a need to have a special master review documents for attorney-client privilege, the judge stepped in to help them, pointedly asking: "Are you asserting any other privileges beyond the attorney-client privilege?"

Not really, Trump's lawyers responded.


Wrong answer, but the judge was there to correct them, again.

"I just want to be clear, there were some references in the papers to executive privilege," Cannon nudged them.

Trump's attorney finally got it. "Absolutely. Thank you, Your Honor," he replied. "Yes, executive privilege is in play, as well."

There was no evidence that the Justice Department had done anything wrong, or that it could be expected to. There was no evidence that a special master was necessary.

The judge appointed one anyway, out of concern for the "stigma" that an investigation into whether Trump had violated the Espionage Act would cause him. She did not explain how a special master would or could lessen any "stigma," let alone one inflicted on Trump by Trump himself.

For the moment, however, score one for Trump.


Jeff Robbins, a former assistant United States attorney and United States delegate to the United Nations Human Rights Council in Geneva, was chief counsel for the minority of the United States Senate Permanent Subcommittee on Investigations. An attorney specializing in the First Amendment, he is a longtime columnist for the Boston Herald, writing on politics, national security, human rights and the Mideast.

Copyright 2022 Creators Syndicate Inc.



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