The Justice Department must decide by Friday whether to appeal this week’s ruling by U.S. District Judge Aileen M. Cannon, a Trump appointee.
The Justice Department must decide by Friday whether to raise the stakes in its investigation into Donald Trump’s possible mishandling of classified information by appealing a controversial ruling about the rights and powers of former presidents.
As they scrutinize Trump and his advisers, Justice Department lawyers are weighing whether to challenge a federal judge’s uncommon order to appoint an independent reviewer, called a special master, to assess more than 11,000 documents seized by the FBI from Trump’s Florida residence last month.
At issue are untested legal questions about the extent to which assertions of executive privilege, typically invoked by sitting presidents to protect high-level deliberations and communications, can be applied to a former president at odds with a successor’s administration.
If the Justice Department does appeal, the ensuing legal fight could take longer than any document review by the special master — and there is no guarantee that the government would prevail, particularly if the case were to reach the Supreme Court, to which Trump appointed three justices during his presidency and solidified a 6 to 3 conservative majority.
“The Supreme Court has said it’s an open question the extent to which a former president can assert claims of executive privilege against a sitting president,” said former federal judge Paul G. Cassell, who teaches at the University of Utah law school. “Maybe this will be the case that determines and helps settle that open question.”
The decision by U.S. District Judge Aileen M. Cannon — a Trump nominee confirmed days after President Biden won the 2020 election — says the Justice Department cannot continue reviewing the materials taken from Mar-a-Lago on Aug. 8, or use them in its investigation, until the special master concludes his or her examination. Trump’s legal team has said a special master is needed to ensure a fair process.
Some legal experts who have followed the matter said the government may forgo an appeal if the investigation is on hold only a short time while the special master sorts through the material.
Mary McCord, who served as acting assistant attorney general for national security during the Obama administration, said there are legitimate legal reasons to appeal, but also potential upsides to accepting the judge’s plan for an independent review. Involving a third party could “inoculate the department from criticism down the line about having been the ‘fox in the hen house,’” she said, suggesting it would nullify complaints about the government’s use of an in-house team to separate out the sensitive documents that were seized.
McCord characterized the judge’s legal analysis as “flawed,” but said the ruling does not completely halt the investigation. Prosecutors can still interview witnesses and obtain additional search warrants and subpoenas, particularly for events that occurred before the search at Mar-a-Lago.
