Courts, Special Master, Executive Privilege, oh my | New NY 23rd

Philosopher Jason Stanley of Yale University, best known for his 2018 book How Fascism Works, tweeted today: “Once you have the courts you can pretty much do whatever you want.” — Heather Cox Richardson

An article in The New York Times by Charlie Savage discusses the move to appoint a special master in the Trump documents case. Savage writes:

A federal judge’s extraordinary decision on Monday to interject in the criminal investigation into former President Donald J. Trump’s hoarding of sensitive government documents at his Florida residence showed unusual solicitude to him, legal specialists said.

Here are some excerpts:

  • This was “an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation,” said Stephen I. Vladeck, a law professor at University of Texas.
  • Paul Rosenzweig, a former homeland security official in the George W. Bush administration and prosecutor in the independent counsel investigation of Bill Clinton, said it was egregious to block the Justice Department from steps like asking witnesses about government files, many marked as classified, that agents had already reviewed.
  • “Judge Cannon had a reasonable path she could have taken — to appoint a special master to review documents for attorney-client privilege and allow the criminal investigation to continue otherwise,” said Ryan Goodman, a New York University law professor. “Instead, she chose a radical path.”
  • A specialist in separation of powers, Peter M. Shane, who is a legal scholar in residence at N.Y.U., said there was no basis for Judge Cannon to expand a special master’s authority to screen materials that were also potentially subject to executive privilege. That tool is normally thought of as protecting internal executive branch deliberations from disclosure to outsiders like Congress.
  • David Alan Sklansky, a Stanford University law professor, said he was glad that work had been allowed to continue given its importance. But he said there was an inherent contradiction in allowing the executive branch to use the files for that purpose while blocking it from using them for an active criminal investigation.
  • Ronald S. Sullivan Jr., a Harvard Law School professor, said anyone targeted by a search warrant fears reputational harm, but that does not mean they can get special masters appointed. He called Judge Cannon’s reasoning “thin at best” and giving “undue weight” to the fact that Mr. Trump is a former president.

Charlie Savage notes:

In reasoning that she had a basis to install a special master, Judge Cannon relied heavily on a 1975 appeals court ruling. It held that courts had jurisdiction to decide whether to order the I.R.S. to return a businessman’s records that he claimed had been taken unlawfully, and laid out a multipronged test for such situations.

One part of the test is whether the government had displayed a “callous disregard” for the constitutional rights of the person subjected to the search. On that issue, she sided with the Justice Department, which had obtained a warrant from a magistrate judge.

But she said the other parts of the test favored Mr. Trump. They included whether he had an individual interest in and need for the seized property, would be “irreparably harmed” by a denial of that request and lacked any other remedy.

On Executive Privilege, for Just Security, Andy Wright wrote:

Executive privilege is a contested doctrine in our separation-of-powers scheme, with Congress and the Department of Justice traditionally at loggerheads over its scope and application. In practice, executive privilege is an assertion of presidential authority to preserve executive branch confidentiality interests by withholding information from a judicial or congressional proceeding. The doctrine encompasses a bundle of components that cover a range of executive branch confidentiality interests, including presidential communications, deliberative processes, investigative integrity, state secrets, and individuals’ civil liberties that the administration may seek to shield from disclosure. Such claims can arise in legislative inquiries, criminal investigations, and civil litigation involving private parties, especially litigation arising under the Freedom of Information Act (FOIA). 

Andy Wright’s article goes on with a more detailed discussion of executive privilege.

Charlie Savage is a Washington-based national security and legal policy correspondent.

Andy Wright is a Partner in the Washington office of K&L Gates and was previously Associate Professor at Savannah Law School, where he taught constitutional law.

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