The legal pundit Jeffrey Toobin sees Judge Aileen Cannon’s order in the Southern District of Florida as a “wall to wall” disaster for the Justice Department, “leaving few good options.” Despairingly, he tweets: “Mar-a-Lago case may be doomed.”
True, the decision of the Trump-appointed judge ordering the naming of an independent special master to screen the seized documents is a psychological victory for former President Trump and his MAGA followers. But it is a Pyrrhic victory of little practical significance.
On Aug. 8, the FBI seized 11,000 documents, with and without classification markings, as well as 1,800 other items from Trump’s office and storage room in his Mar-a-Lago home.
Among the documents seized were roughly 500 documents that the FBI deemed potentially subject to the attorney-client or executive privileges. The executive privilege documents purportedly reflected communications between Trump and his advisers while he was in the White House.
True, Judge Cannon temporarily enjoined the government from reviewing and using the seized material pending the special master’s review. But the Justice Department had told Cannon that the review had already been completed, and the judge was careful to exempt from her injunction Department of National Intelligence (DNI) screening of the seized materials to assess the potential damage to national security coming out of disclosure of the seized documents. DNI Director Avril Haines said that she is in the throes of that screen and will report her findings to Congress.
Moreover, the injunction only enjoined “further review and any use of the materials seized…for criminal investigative purposes.” So, prosecutors should be free to continue to present other evidence to the grand jury, interview witnesses and follow leads derived from sources independent of the documents.
But the case is by no means “doomed.” It is merely the first lap around the track.
The government will undoubtedly appeal the order to the 11th Circuit as it is dead wrong. Enjoining an ongoing criminal investigation, even temporarily, is an extraordinary remedy, which should raise eyebrows in the court of appeals.
In any event, unless reversed, the appointment of the special master and the review will proceed expeditiously. The FBI performed its review of the seized documents in three weeks.
The crimes involved in the search and seizure are serious. Implicated are three criminal statutes carrying heavy jail time: Title 18 USC §793 dealing with espionage; 18 USC §2071 dealing with mishandling of government documents; and 18 USC §1519 dealing with obstruction of the investigation of the other two offenses.
Violation of any of these statutes, however, does not turn on the contents of any of the seized documents. The documents were contraband. It was illegal for Trump to possess them as they were government documents belonging not to him but to the United States.
Trump will claim executive and attorney-client privileges with regard to some, but not all, of the documents found in the boxes, closet and desk drawers of his Mar-a-Lago headquarters, and the special master will make recommendations to Judge Cannon resolving any disputes. The FBI did what it does in all cases involving the seizure of arguably privileged documents. It established a “Chinese Wall” between the investigative team and a special team of agents who would review arguably privileged documents.
Of course, there is the possibility of a leak, and the special master review will lend the appearance of credibility to the privilege screen, thus assuring that the government’s document case is taint free. In fact, Judge Cannon may have done Attorney General Merrick Garland a favor.
It is significant that Trump did not assert executive or attorney-client privilege when he turned over 15 boxes of documents to the National Archives in January 2021. He waited until April 2022 to raise the issue when the Archives advised him that it intended to provide the 15 boxes to the FBI.
When President Biden waived any executive privilege, the FBI obtained access in May. Trump never sued at that time to enjoin the transfer on grounds of executive, attorney-client privilege or any other grounds.
But it really doesn’t matter, and it bears repeating, the investigators were not inquiring into the contents of the documents (with the possible exception of the classified documents) but whether Trump’s possession of government documents at Mar-a-Lago was criminal.
Last March, Federal Judge David Carter in California reviewed attorney-client documents himself in a case relating to the events of Jan. 6. He did not appoint a special master. He found that the privilege didn’t apply because “more likely than not,” Trump’s attorney-client communications involved the commission of a crime.
Trump’s claim of privilege is weak with regard to the government documents. There is a tort-crime exception to attorney-client and executive privileges, which holds that there is no privilege if there is a crime involved in the communication. There is also no attorney-client privilege between Trump and White House lawyers since the client is not Trump but the United States.
So, what does a special master add to the mix? It strikes me as a lawyer as an abuse of discretion. Trump has a full inventory of the documents seized, and could easily advise the Justice Department of those presumably few documents he claims are privileged. It does not appear that Judge Cannon would be overburdened in reviewing these herself as she put the outside number at 500 — about the volume of a best-selling novel. Then, she could decide what is privileged and what is not. She will have to decide the issue anyway since she must inevitably pass on the special master’s recommendation.
A special master might be subject to more political pressure than a federal judge. A special master might be threatened, as was Magistrate Judge Bruce Reinhart, who signed the search warrant.
A former president, like a sitting president, is not above the law. Yet, Judge Cannon treated him differently from you and me. Believe me, we don’t get a special master with all the delay that might entail, and an injunction against a criminal investigation.
Judge Cannon has apparently swallowed the Trump line that the FBI and the Department of Justice are out to get him. He has just called them “vicious monsters.” What will he have to say about a special master who makes adverse recommendations to the court?
The point is that there should be no delay in a criminal investigation. If Trump is ever indicted, he can then make a motion to suppress evidence he contends was privileged or illegally obtained.
Judge Cannon has stood criminal procedure on its head by ordering a threshold special master screening of documents that may never be offered in evidence. If indicted, Trump will have the opportunity afforded to every other criminal defendant to question the introduction of the documentary evidence against him.
As the iconic Federal Judge Learned Hand aptly said: “Our dangers do not lie in too little tenderness to the accused. Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime.”
Toobin is wrong. We have not seen the end of the case of the Mar-a-Lago documents.
James D. Zirin is a former federal prosecutor in the Southern District of New York.