Federal District Judge Aileen M. Cannon has ruled in favor of former President Donald Trump’s petition to appoint a special master regarding the search of his home at Mar-a-Lago. The Department of Justice argued that such an appointment would be unnecessary. What does it mean that a special master will be brought in to examine the documents gathered during the raid? And perhaps more importantly, what does the affair signify politically and legally?
Liberty Nation Managing Editor Mark Angelides spoke with Legal Affairs Editor Scott D. Cosenza, Esq. to assess what this means for Donald Trump and the DOJ.
Mark Angelides: Donald Trump’s request that a special master be appointed has been high in the news for almost two weeks now, Scott. What will such a person do that Trump lawyers or DOJ officials can’t?
Scott D. Cosenza: The special master’s job is to examine all the evidence seized at Mar-a-Lago. Regarding each piece, they will decide whether the item might be subject to a claim of attorney-client privilege and, separately, executive privilege.
MA: And what will the master look for during their investigation?
SDC: For the attorney-client privilege aspect, this would include correspondence and attachments that may have been sent to or from Trump’s lawyers or people who work for or with them. It also applies to notes made while conferring with counsel or preparing for discussion with them.
Things get a lot more interesting concerning the executive privilege claims. That’s because a court has never ruled on such a claim under these circumstances. Donald Trump is likely to claim privilege over some of these documents. Meanwhile, the current chief executive – Joe Biden – wishes to forgo and prevent any executive privilege claim on the same items.
MA: Are there likely to be legal back-and-forths over what constitutes a document with attorney-client or executive privilege?
SDC: Yes! Especially with respect to executive privilege and whether Trump may assert it. By withdrawing the privilege, those documents may be used to prosecute Donald Trump criminally. If privileged, Trump can keep Biden’s prosecutors from using them as evidence against him. Biden administration lawyers argued Trump has no claim here and that President Biden controls the documents over which Donald Trump may claim executive privilege. Judge Cannon laid waste to the claim that this was settled. She quoted Justice Brett Kavanaugh from another case:
“A former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim. Concluding otherwise would eviscerate the executive privilege for Presidential communications.”
The Special Master Purview
MA: From a legal perspective, how does the special master determine what falls under their purview? And are Trump or the DOJ going to agree with the master’s delineation?
SDC: As part of her order, Judge Cannon told both sides to submit a joint filing of a draft order defining the special master’s duties and limitations. The DOJ and Trump’s lawyers must collaborate to write the proposal. And she ordered them to confer on who the court might choose to be the special master, proposing suitable candidates.
MA: Final question for you, Scott. In the immediate aftermath of Judge Cannon’s decision, we saw the media swing to action stations almost immediately. The more right-leaning press hyped this as a huge deal, whereas the left was adamant that it was just a delaying tactic. Where’s the truth, Scott?
SDC: It’s a big win for Trump. Biden administration lawyers who would prosecute Trump must stop using or even looking at the documents seized at Mar-a-Lago for the time being. The process will slow down, and it will be harder to drive the news with negative stories about Donald Trump and his allies.
The special master takes power away from President Biden and his designees and gives it to an independent actor controlled by the courts. Biden made clear in Philadelphia that he is Trump’s enemy, not rival. Any decisions removed from his purview are likely to accrue to the benefit of Donald Trump. In a close call on whether a document is covered under attorney-client privilege, would any neutral observer expect the Biden team to rule on the question in his favor? We have the answer, and it is no.