On Aug. 27, Judge Aileen Cannon issued a preliminary order indicating that she was inclined to grant Donald Trump’s request that she appoint a special master to review the documents that the government seized during its court-approved search of Mar-a-Lago last month. So her order on Monday enjoining the Department of Justice from using those materials in its ongoing criminal investigation until a special master completes his or her review was in some ways not a surprise. Now that we know the grounds for Judge Cannon’s view and the scope of her order, though, we must respectfully but strongly disagree.
First, at the heart of the order is the assumption that Trump could have a right to the return of presidential records under Federal Rule of Criminal Procedure 41(g), which permits the return of property seized by an unlawful search and seizure. Presidential records are, by the clear terms of the Presidential Records Act, the property of the U.S. government—not the former president.
The order ignores the impossibility of returning these documents to Trump under these circumstances: There are more than 103 classified documents, including 18 designated as Top Secret—signifying that their mishandling risks exceptionally grave damage to national security. And that’s before factoring in other indicia of danger, like the recent revelation that investigators seized 48 empty folders with classified markings, which raises the question: Where are the documents? It is difficult to contemplate any basis for the return of even a single classified document under any circumstances—and certainly while the contents of these folders are unaccounted for.
Indeed, Judge Cannon herself acknowledges the danger to national security posed by Trump’s request to the extent it would stop the Office of the Director of National Intelligence’s ongoing national security review. The order enjoins the government from further review and use of these documents for investigative purposes, not for purposes of intelligence classification and national security assessments. In this way, the order is inconsistent; carving out the national security assessment from the injunction undercuts the assumption that Trump may be entitled to the return of these documents, as well as the premise that the ongoing criminal investigation must be halted. How can we contemplate the possible return of documents that could cost the lives of American agents to someone who has already treated these records with such neglect?
Further, how can national security officials make determinations on how best to protect the nation if criminal investigators are enjoined from taking investigative steps that may also serve that very purpose? Indeed, some government officials would typically be part of both of these reviews—such as the Attorney General himself. The order’s false dichotomy does not take account of those realities that are needed to protect us all.
Second, to the extent the order authorizes a special master to review the materials for assertions of executive privilege, there is no basis for this ruling. Both federal statutory law in the form of the PRA and precedent including Nixon v. GSA show that Trump cannot successfully assert executive privilege against the executive branch as it conducts executive functions. (Although this essay is written in our personal capacities only, we unpacked this law in detail in an amicus brief in this case in which we participated.)
Moreover, as the order recognizes in a footnote, to the extent that Trump wants to litigate the executive branch’s executive privilege determinations, the exclusive jurisdiction lies within the federal courts for the District of Columbia. Trump’s failure to properly assert his claims in that jurisdiction is no reason for this court to step in.
While no case holds that a special master should resolve this kind of dispute between a current and former president, the order notes a request that the Department of Justice once made to have a special master review potentially privileged documents collected from the office of one of Trump’s attorneys. But the court in that case also did not rule on the issue of executive privilege, nor did the special master’s reports make any mention of reviewing for executive privilege. And DOJ’s statement about a then-sitting president has no applicability here, where the PRA sets up a procedure for adjudicating disputes between a current and former president with jurisdiction in D.C.
Third, the question of whether there should be a special master for the smaller quantum of attorney-client privilege materials (here, about 500 pages), is a closer one. Though reasonable people may disagree, the ruling was not extraordinary in this regard. But to bootstrap that narrow ruling into a review of the full 11,000 documents for assertions of executive privilege that are beyond the purview of a special master is wrong.
Fourth, the DOJ now faces a weighty decision regarding appeal. This order is appealable under 28 U.S.C. § 1292 because the court enjoined the government from continued use of the materials in its criminal investigation. It might seem faster to simply to get on with appointing a special master, particularly since we are now within the period before an election when the DOJ prefers to stay out of political matters. If the document review could be wrapped up within that time frame, perhaps the best approach for the DOJ is to allow the review to proceed.
On the other hand, there will undoubtedly be disagreements over particular documents that will then need to be referred by the special master for resolution by the judge, and those decisions could then be subject to appeal. Nobody knows how much time that review will require. And the DOJ may not be able to afford leaving this order’s precedent on the books, given its numerous analytical flaws.
Accordingly, the DOJ faces a tough call. Whatever one’s views based on the public record, DOJ is closest to this, including internal investigatory considerations that may not be obvious to outsiders. The ultimate determination is theirs.
Fifth and finally, if there is one aspect of the decision that summarizes why we must take exception, it is the order’s repeated statements about how special a former president is, such as noting that “the stigma associated with the subject seizure is in a league of its own” due to the “Plaintiff’s former position as President of the United States.”
To the contrary, in the United States, everybody should be subject to the same legal rules. If any of us had engaged in this course of conduct, including the long pattern of apparent deception and concealment of these documents, we would have been subject to a search warrant and, indeed, potential prosecution, long ago. If for no other reason than that, the DOJ decision on appealing the court decision should consider the foundational principle here at stake. In the United States, no one is above the law.