A judge's order approving a special master to review documents the FBI took from former President Donald Trump's Florida home is a deeply flawed and unworkable mess, legal experts told NBC News on Tuesday.
U.S. District Judge Aileen Cannon on Monday granted Trump’s request to have a special master review all the evidence seized last month from his Mar-a-Lago estate and temporarily blocked parts of the Justice Department’s investigation into the trove of top secret and classified documents retrieved by federal agents.
Cannon, 41, a Trump appointee, also put forth legal defense arguments that Trump's team hadn't made, among them that the former president could suffer reputational "injury" if the Justice Department indicted him.
Legal experts blasted the overall ruling and questioned how it could be implemented, while warning that an appeal by the government could drag the investigation out further.
“I think it’s a corrupt decision. I think it is a special law just for Donald Trump by a Trump appointee, and it is unmoored from precedent, insupportable in law, will not be approved of by anybody who isn’t a Trump fanatic,” said Paul Rosenzweig, a Department of Homeland Security official under former President George W. Bush.
“It is supremely disappointing, because up until now … the courts have been the last bulwark against excess, and this decision suggests that at least some of Trump’s judges put loyalty to the man over loyalty to the rule of law, and that’s deeply unfortunate,” said Rosenzweig, who was senior counsel to Ken Starr, the independent counsel who investigated President Bill Clinton.
Bradley Moss, a lawyer who specializes in national security issues, said that Cannon's decision is “not well-founded in any law or legal theory” and that it included “far better advocacy for the former president’s legal position than anything his actual lawyers put forward.”
“My view is that, at a minimum, the Justice Department is going to have to appeal” the part of the order that temporarily stops the Justice Department from using the seized documents to proceed with its criminal investigation, Moss said.
But, he cautioned, an appeal is no easy path. The 11th U.S. Circuit Court of Appeals, which would hear any appeal in this case, "has taken a particular conservative turn, and the U.S. Supreme Court is 6-3 in favor the conservatives,” Moss said. “It’s not a foregone conclusion they’d win on appeal.”
Brandon Van Grack, a former counterespionage prosecutor who worked on special counsel Robert Mueller’s investigation into Russian interference in the 2016 election, said there “would be a strong impulse to appeal,” especially because the criminal investigation by the Justice Department and the damage assessment by the Office of the Director of National Intelligence are likely going hand in hand and “can’t be bifurcated.”
Part of Cannon's order gave the Office of the Director of National Intelligence permission to continue its review of documents for a damage assessment, a process the Justice Department has been playing a role in.
“The criminal investigation is informing the intelligence investigation,” Van Grack said, adding that Justice Department investigators had likely been doing fingerprint searches on the classified documents to determine who handled them — a key step in determining how much they might have circulated.
Cannon's ruling could also block investigators from asking witnesses about who had access to the documents. “It will delay and impair the investigation,” Van Grack said. “They won’t have complete information.”
Legal experts also took issue with Cannon’s saying the special master should review the documents for potential executive privilege claims, instead of limiting the examination to traditional attorney-client issues.
Trump's team has argued that a special master — essentially a neutral third party appointed by the court — was necessary because they couldn’t rely on the so-called filter team the Justice Department used to separate out privileged documents, saying they couldn’t be expected to "trust the self-restraint of currently unchecked investigators."
The Justice Department contends executive privilege isn’t up for debate, because the seized documents don’t belong to Trump.
“He is no longer the president. And because he’s no longer the president, he had no right to those documents," Justice Department lawyer Jay Bratt told the judge at a hearing last week.
Rosenzweig agreed, calling it "absurd" that a special master should be searching out potential executive privilege issues.
