Following the federal judge’s Monday ruling on appointing a “special master” to review materials seized from former President Donald Trump’s Mar-a-Lago home, executive privilege is expected to become an issue as the DOJ likely appeals the ruling.
Judge Aileen Cannon, who was appointed by Trump, rejected the DOJ’s “narrow view” of executive privilege, CNN’s John King noted on Inside Politics, adding that “the Justice Department’s view is that Donald Trump is no longer President, he does not have executive privilege.“
He said the judge doesn’t say “he definitely does,” but instead leaves the role of executive privilege as an “open question.”
In making its case for the special master, the judge’s ruling noted: “As Plaintiff articulated at the hearing, the investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness.”
The judge’s overall ruling is “legally unjustified,” Jennifer Rodgers, a former federal prosecutor, told King.
“There’s just never been a case where irreparable harm has been shown by being under criminal investigation. That’s one of the key things that the Justice Department does, the executive branch does, is criminally investigate people. So, the notion that that can establish irreparable harm to me still says that this is a legally wrong decision,” she said, regarding the special master.
Rodgers added, “On the other hand, this notion that this is so extraordinary and that she’s granting it because it’s the former President, I think is sort of good news for the Justice Department, because one of the problems with this is it sets a precedent for other defendants down the road who say, ‘Hey, wait a minute, you searched my stuff, I want a special master even though it’s not my lawyer’s office and there’s no reason to believe there’s a lot of privileges apply,” so, I think that piece of it is good.”
Rodgers explained that there is a silver lining, “in the sense that I don’t think that ultimately there are going to be a lot of attorney/client privileged documents found… very few attorney/client privilege documents and even the executive privilege side, executive privilege would only only pertain if documents were created in the executive branch, really, at the White House, and so many of these documents are going to have been created other places.”
“So, while it does delay things and slow it down, which is bad for the DOJ and their case, I think at the end of the day, we’re not going to see a lot of special documents pulled by the master,” she added.
CNN’s Evan Perez noted, “This issue of executive privilege is sort of just a strange one, right? Because it’s never been fought over in something like this. So, we don’t know where the courts are going to end up with this, John, and certainly, we don’t know if this is going to have to go to the Supreme Court before we’re even able to move on.”
