Let Donald Trump Have His Special Master
Former President Donald Trump’s legal action in federal court complaining about the search of Mar-a-Lago has been the legal equivalent of Mr. Toad’s Wild Ride: a constantly moving target of screwups, strange arguments, and eye-popping judicial actions. On Monday, however, Judge Aileen Cannon issued an order that brings a little clarity to the situation—though certainly not closure.
The whole lawsuit got off to a rocky start. Trump’s Florida attorney, Lindsey Halligan, mostly practices property insurance law and apparently doesn’t practice much in federal court. Two pro hac vice motions (which allow attorneys who aren’t a member of a particular court’s bar to make appearances in a specific case) were rejected for failure to follow the local rules. The court directed Halligan to a sample motion on the court’s website to show her how to do it properly. Ouch.
It got worse. The complaint/motion Halligan originally filed was about what you’d expect: a laundry list of Trumpian grievances—“Russian collusion!”—and complaints, mostly by means of “asking questions” about how unfairly Trump was being treated. For example: “Did the affiant fully disclose . . . the President’s overarching authority to declassify documents?”
In response, Judge Cannon issued an order that, stripped of the legal niceties, boiled down to “Wut?”
For Trump’s lawyer this order should have been highly embarrassing. It was also extremely unusual. Trial judges don’t usually review your complaint the day after you file it—and then offer helpful tips on improving it.
But that’s exactly what happened in this case. Judge Cannon ordered Halligan to explain, among other things, why the court had jurisdiction and what, exactly, Trump wanted the court to do about the things he was complaining about. On top of that, the court ordered Halligan to explain if she’d actually served the defendant—the United States government—or not.
It’s impossible to argue that Trump wasn’t getting special treatment here.
In the normal course of events, you file and then the court waits for your opponent to point out all the problems in your case. Then, if you’re lucky, the court might grant you leave to amend.
But in this case the government had not been formally served—and wasn’t actually served until August 27. Which is the same day the court issued a preliminary order and set a hearing for September 1.
This, too, is very irregular. Normally, the government would have had 30 days to file a response to Trump’s complaint. Instead, the court proposed rulings and set hearing dates—on three-days’ notice—before the government had even been formally served, much less had a chance to respond.
If a court tried to do this to Trump, Sean Hannity’s head would explode.
For better or for worse, these Department of Justice lawyers are thicker-skinned. So instead of standing on their rights, they just rolled with it, filed their response, and appeared at the September 1 hearing.
The court issued its 24-page order on Labor Day, which is in itself pretty unusual. The order says nothing about Trump’s demand to see the unredacted search warrant affidavit, or his claim that the search was overbroad. Instead, it concentrates on Trump’s demand that the court appoint a special master—an ad hoc judicial officer—to review all the material seized to determine if any of it was privileged.
The court’s opinion is not a tour de force of legal reasoning. The order concludes that a special master is warranted in this case largely because, Hey! It’s Donald Trump we’re talking about here!
The order also raises real issues of practicality that, if this case had been about anyone other than Trump, would have made it moot.
For instance: The original procedure outlined in the search warrant was for the Department of Justice to set up a “taint team” of attorneys unconnected with the investigation to review documents for attorney-client privilege issues. The government argued that this procedure had already been completed, so Trump’s request for a special master was moot. The court solved that problem by enjoining the government from making use of those documents in its investigation until the special master had finished reviewing them.
Which now raises the question of what happens if the special master concludes that some of the documents are privileged. Will the Department of Justice be required to replace every attorney on the investigation to ensure that the investigation isn’t tainted? (The order hints at something like that.)
And the court’s order doesn’t just cover screening documents for attorney-client privilege, which is what a special master usually does in these cases. This special master will also be reviewing the documents seized at Mar-a-Lago to determine whether they are covered by executive privilege. Given the almost complete lack of case law—especially regarding executive privilege and ex-presidents—this is almost guaranteed to result in a string of appeals.
In the end, that might not be a bad thing: Clarifying the law on executive privilege is an important piece of autocrat-proofing American democracy. But it would slow down this investigation.
One thing Judge Cannon did not do is enjoin the government from using the seized documents for “intelligence classification and national security assessments.” This is not a surprise. I doubt if even Trump would claim that the government has no right to review pilfered top-secret documents to determine whether their release would pose a threat to national security.
The Department of Justice is reportedly considering an appeal and I suspect the court will issue a slightly modified opinion in the next couple of days. The first problem—and this is kind of nerdy, though important—is that the court actually misquotes the language from an appellate case to make it look like it directly refers to the search of a former president’s home. This mistake was almost certainly inadvertent, because if it were done intentionally by a lawyer, it would be a sanctionable offense.
The second is perfectly ethical, but more serious. The court, Judge Cannon writes, is “mindful of the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented.”
At least the appearance of fairness is a poor turn of phrase for a legal setting and is manifestly not what the court meant. Nonetheless, conservative media are quoting this line to imply that actually it’s Trump who isn’t being treated fairly.
On balance, Judge Cannon’s order granting Trump a special master is probably a good thing. If you’re a guilty defendant, the very worst judge you can get is the one who goes out of his or her way to make sure that you get all the due process you are entitled to—and then some. An excess of fairness makes a conviction that much harder to overturn on appeal.
And something like this rule also holds for the court of public opinion. If Trump is going to be prosecuted, it is imperative for all sorts of reasons that he be given every opportunity to defend himself. His hardcore supporters will complain about anything short of canonization, much less a criminal prosecution. But there is a critical segment of people who might not follow the detailed twists and turns of Donald Trump’s brushes with the law but want to know that he is being treated fairly.
So let Donald Trump have his special master. If the Mar-a-Lago raid results in a conviction for Trump, it won’t be because the government relied on letters from his lawyer or documents covered by “executive privilege.” It will be because Trump looted official government records and kept a stack of top secret documents in his basement.