While Cannon’s ruling directs the special master to consider executive privilege, she does not lay out how. “It’s the kind of legal issue that courts and judges resolve generally, not special masters,” said Slansky, who himself has served as a special master. The Department of Justice (DOJ) argued that Trump’s very claim that some of the documents were protected by executive privilege proves their point - that they are government property and must be maintained by the National Archives.īut Cannon said the DOJ “arguably overstates the law” on the limits a former president has, leaving it to the special master to review the documents for both attorney-client protected materials - a relatively common service they provide to the court - and materials covered by executive privilege, which is an entirely unprecedented role. While the order spends ample time considering Trump’s arguments it spends relatively little considering the government’s argument that a special master would seriously hamper its investigation, covering one of the Department of Justice’s principal objections with just a few sentences.īut experts say some of the more perplexing aspects of the order are those surrounding executive privilege, warning the ruling sets a dangerous precedent for allowing a former executive to hamstring a successor. So I think that he’s suffering less reputational injury than most people do when it’s announced that they’re the subject of a criminal investigation,” he added. “His brand at this point is kind of tied up in his battles against the government. Sklansky said Trump has a greater ability than most people caught up in criminal investigations to air their side of the story. That strikes me as wrong and troubling in a country where nobody’s supposed to be above the law,” said David Alan Sklansky, a professor at Stanford Law School and an expert in the Fourth Amendment and constraints on prosecutorial power. “The judge said that she thought that the fact that Donald Trump is a former president gives him heightened reputational interests, that there’s more reason in this case to be worried about the reputational damage that a criminal charge could inflict than there is in a normal case.
Others see the consideration of his status as a former president as inappropriately elevating Trump compared to others who would be unlikely to get similar treatment if their home were searched in the course of a criminal investigation. In her Labor Day ruling, Cannon repeatedly stressed optics as a rationale for having a third-party special master review the more than 10,000 documents taken during the search. It’s a detail that has gotten renewed attention, as experts say the ruling fails to deliver meeting the legal tests lawyers are trained to analyze while asking the special master to resolve major legal questions as Trump argues executive privilege should allow him to withhold executive branch documents from the current administration. “It does seem to reflect a fair amount of bending and stretching of the law in numerous different respects,” said Jeff Robbins, a former federal prosecutor and congressional investigative counsel.Ĭannon surprised observers by indicating last month before she had heard any arguments in the case that she was inclined to grant Trump’s request.
The ruling in favor of Trump by federal district court Judge Aileen Cannon has been a head-scratcher for many attorneys, who say the court left behind many unanswered questions while also blocking an unprecedented investigation of a former president. A federal judge’s ruling granting former President Trump’s request for a special master has generated a range of intense reactions from legal experts, who have called it unusual, lacking in legal reasoning, “absurd” and offering undue favoritism to a former president.
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