FBI raid:  Special masters are made for special circumstances

The Department of Justice created this mess by seizing close to a hundred times more material than they needed including personal items and privileged information they had no right to even look at, much less take.  What are we supposed to do from here, let the same people who have breached every democratic norm imaginable sort it out on their own?

The legal world is aghast that a judge appointed by former President Donald Trump approved his request for a Special Master to review the materials confiscated by the FBI during their unprecedented raid on his Mar-a-Lago residence last month.  Former Attorney General and once-upon-a-time Trump ally, Bill Barr declared the ruling “deeply flawed” and believes the Department of Justice should appeal, which they did yesterday.  “The opinion, I think, was wrong, and I think the government should appeal it. It’s deeply flawed in a number of ways,” Mr. Barr explained during a Fox interview earlier this week. “I don’t think the appointment of a special master is going to hold up — but even if it does, I don’t see it fundamentally changing the trajectory. In other words, I don’t think it changes the ball game so much as maybe we’ll have a rain delay for a couple of innings.”  CNN’s legal expert, Jennifer Rogers, concurred, describing the order as “stunning.”  She took issue with the fact that US District Judge Aileen Cannon had to find “exceptional circumstances” to both exercise her jurisdiction and determine whether a special master was required, but what circumstances could possibly be more exceptional than a completely unprecedented raid on a former President’s home?  The circumstances are a set of precisely one in the entire history of the country.  Ms. Rogers continued, “On all these legal questions, Cannon’s consideration of these issues was superficial and conclusory. For example, she determined that Trump would be irreparably injured in part because he has a need for the documents seized, in part because information about these items may be leaked to the press and harm him and in part because these documents may subject him to criminal prosecution.”  Does that really sound unreasonable to you, that a once and potentially future President and leader of his party could be “damaged” by a possibly biased investigation with an incredibly broad scope and a legal predicate that fails to acknowledge Trump’s privileged position as a Commander in Chief, plus one that has been accompanied by a steady stream of leaks?

She too makes the same mistake as Mr. Barr in the very next paragraph, claiming anyone “subject to a search arguably has a similar need without justifying special master review.”  Trump, however, is not anyone and that has been the problem with the entire investigation from the very beginning.  The President and the Vice President are the only two positions mentioned by  name in the Constitution.  The remainder of the top government officers, from the Speaker of the House to the Chief Justice of the Supreme Court, were positions created later, either through the passage of new laws or the rules of the specific body.  Throughout American history, the Courts have generally taken this to mean that the President is imbued with powers over the military and the executive branch that are reserved for no one else.  He or she is the singular, named position responsible for this authority, has sole domain over the affairs assigned to the executive branch, and shares it with no one.  Nor can this power be limited by any other branch of government or person in the government.  The authority granted to the President extends to the classification or declassification of information, and the ability to claim executive privilege.  At the risk of repeating myself:  No one in the known universe possesses these powers and is invested with them by the Constitution itself.  Therefore, any investigation mounted by the Department of Justice that touches upon the potential use of these powers while the President was in office was never going to be simple.

There are critical underlying questions to which the answer remains unclear:  What statutes regarding confidential information and the handling of it apply to the President with powers that supersede any statute?  What are the rights of the National Archive compared to the prerogatives of the President to determine what constitutes a record?  What legitimate executive and attorney client privilege concerns does the President have regarding his records and communications?  Contrary to what has been portrayed in the mainstream media, these are not questions with easy answers.  They touch upon the underlying foundations of the republic itself, and from what we have seen so far at least, none of them have been addressed by the Department of Justice during their investigation.  The scope of executive and attorney-client privilege is an excellent example.  The Department of Justice operates under the assumption that executive privilege can only be invoked by the current President, but the Supreme Court has never ruled specifically on the matter.  There are many legal scholars and at least one sitting Supreme Court Justice that believe privilege can be claimed by even an out of office President in certain circumstances.  Justice Brett Kavanagh put it this way, 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.”  The truth of this statement should be obvious, at least in some cases, in a two party system.  The opposition can’t possibly be empowered to make public every communication made by the prior administration because the potential for political retribution would be ridiculously high on both sides, and the entire system would break down in an endless tit-for-tat between the parties.

As it is currently understood, the current President can waive privilege claims if the invocation interferes with their ability to perform their duties.  As Assistant Attorney General Charles Cooper explained it before Congress years ago, “an incumbent President need not respect a former President’s claim of privilege if the incumbent feels that it would interfere with his ability to execute his legal and constitutional responsibilities as he, alone, understands and perceives them.”  That seems a broad enough principle, one granting deference to the current occupancy of the office, but without the threat of a constant death match over claims, and yet even it remains in dispute.  The Justice Department is aware of all this, of course, and sometimes mentions the current gray area in the Constitutional order in their own filings, but they blithely proceeded in this case as if the President doesn’t have privileges he might actually possess.  As Judge Cannon put it, “Further, just this year the Supreme Court noted that, at least in connection with a congressional investigation, ‘[t]he questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege, are unprecedented and raise serious and substantial concerns.’”  Attorney-client privilege is another near sacred trust that can only be waived in very specific, narrow circumstances, and yet this didn’t stop the Department of Justice from moving blithely ahead there either.  The result is untenable:  The FBI has seized materials they have no right to take, much less even read.  This point bears repeating:  They have already violated these privilege claims and potentially accessed information unlawfully, meaning the safeguards have already been breached.

The question is now what damage has been done.  We cannot know for sure, but based on the scope of the materials seized from former President Trump’s Mar-a-Lago residence, it could be very significant. This was surely one of Judge Cannon’s primary concerns especially after we were originally told that the scope was incredibly narrow.  The Department of Justice was supposed to be seeking the return of confidential information stored in a single room.  It is reasonable to believe they would need to check other areas as well to ensure they obtained all the materials at issue, but it turns out they took far, far more than records marked confidential.  In fact, such records constitute less than one percent of all the materials seized.  The FBI inventory identified 100 documents with classified markings, not necessarily containing classified information mind you, out of approximately 11,000 total documents and 1,800 other items.  By their own admission, some 500 pages of material could be protected by attorney-client privilege alone, five times as many as the classified documents.  Some of the items seized were clearly personal in nature such as items of clothing.  They also seized three of the former President’s passports, denied they did so, and yet returned them the same day.  The media and their real card carrying experts have suggested that the volume of material seized was necessary because the documents with classified markings were stored with these other materials, but why clothing and passports?  Whatever the explanation, it is clear that the scope of the raid was significantly broader than any narrow search for classified information and ultimately included a wide range of items they had no right to even look at.  Further, the blame for this debacle rests squarely on the FBI.  They could have conducted a narrow search and taken only the classified files.  They could have conducted a search two, three, or even ten times as broad, but instead they chose a hundred times and have not provided any rational explanation.

This is why former prosecutors such as Andrew McCarthy, who are generally willing to give the Department of Justice and the FBI the benefit of the doubt regarding the investigation, have chosen to support Judge Cannon’s ruling.  He believes the Justice Department should’ve appointed a special master in the first place.  “When a salient point of law is unclear, the responsible course for prosecutors is to flag the issue for the court and get a ruling before taking controversial actions. Instead, in seeking the search warrant, DOJ advised Magistrate Judge Bruce Reinhart that the filtering process that would be implemented in connection with documents seized in the search would screen only for attorney-client privileged documents, not executive privileged documents. The latter category is apt to be considerably more expansive. It does not appear that DOJ alerted Reinhart to the possibility that Trump could have a colorable executive-privilege claim, and there’s no indication that Reinhart raised the question on his own.”  I would add that they should’ve also sought opinions on Presidential declassification and archival powers, but the point remains the same:  The Department of the Justice and the FBI made this mess by assuming a former President was an ordinary citizen, rather than a singular office holder, one of only two roles defined specifically in the Constitution.  Based on this erroneous assumption, they entered waters no one in the history of the United States has breached before, and the only alternative to a special master is trusting the very same people to safely navigate us out themselves.  Why would anyone in their right mind do this?  With that in mind, what else was Judge Cannon supposed to do at this juncture?

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