‘Deeply Problematic’: Experts Question Judge’s

Intervention in Trump Inquiry

WASHINGTON — 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.
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Siding with Mr. Trump, the judge, Aileen M. Cannon, ordered the appointment of an independent arbiter...She granted the arbiter, known as a special master, broad powers that extended beyond filtering materials that were potentially subject to attorney-client privilege to also include executive privilege.
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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.

“This would seem to me to be a genuinely unprecedented decision by a judge,” Mr. Rosenzweig said. “Enjoining the ongoing criminal investigation is simply untenable.”
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After Judge Cannon was assigned to Mr. Trump’s special master lawsuit, she made the unusual move of publicly declaring that she was inclined to instate one even before hearing arguments from the Justice Department. But she could have done so in a far more modest fashion.

“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.

“The opinion seems oblivious to the nature of executive privilege,” he said.

The Justice Department is itself part of the executive branch, and a court has never held that a former president can invoke the privilege to keep records from his time in office away from the executive branch itself.

The department had argued that...there would be no legal basis for that person to examine issues of executive privilege. It cited a 1977 Supreme Court case involving the papers of former President Richard M. Nixon, who had tried to use executive privilege to shield them even though the sitting president disagreed.

But Judge Cannon wrote that she was not convinced and believed the Justice Department’s stance “arguably overstates the law.” In that case, she said, the Supreme Court also stated that former presidents retained some residual power to invoke executive privilege.

[It is not normal language for a judge to write that one side's position "arguably overstates the law." The judge is to decide if the law has been overstated.]

The Supreme Court also said the incumbent officeholder is in the best position to assess such issues. But Judge Cannon wrote that the justices had not “ruled out the possibility” that a former president could ever prevail over the current one.

[No lawyer, much less a judge, treats of possibilities. That is, by law, to speculate. Here a judge is going beyond the legal ruling in precedential authority to speculate on a "possibility."]

“Even if any assertion of executive privilege by plaintiff ultimately fails in this context,” she wrote, “that possibility, even if likely, does not negate a former president’s ability to raise the privilege as an initial matter.”

[Upside-down judicial ruling: She knows that the claim is nontenable but they're allowed to raise it. OF COURSE they are, IMBECILE. They are and they DID. You, the JUDGE, are now to rule that the claim is nontenable. She punts to the special master.]
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“Even if there is some hypothetical situation in which a former president could shield his or her communications from the current executive branch,” Mr. Shane said, “they would not be able to do so in the context of a criminal investigation — and certainly not after the material has been seized pursuant to a lawful search warrant.”
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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.“I find that deeply problematic,” he said...“This court is giving special considerations to the former president that ordinary, everyday citizens do not receive.”

Samuel W. Buell, a Duke University law professor, agreed.

“To any lawyer with serious federal criminal court experience who is being honest, this ruling is laughably bad, and the written justification is even flimsier,” he wrote in an email. “Donald Trump is getting something no one else ever gets in federal court, he’s getting it for no good reason, and... he is being privileged.”