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Noah Feldman is a Bloomberg Opinion columnist and professor of law at Harvard University.
Start circling the wagons. That’s the message a federal district judge is sending to other Trump-appointed judges by allowing a special master to review the documents seized from a Mar-A-Lago safe. By suggesting that former president Donald Trump might be able to invoke executive privilege after leaving office, Judge Aileen Cannon contravened well-settled precedent. It’s the first step in a process whereby Trump’s judicial appointees could delay the Justice Department investigation that places the former president in serious legal jeopardy.
On the surface, the judge’s order to appoint a special master doesn’t sound all that extreme. It’s not unheard of for a judge to appoint a special master to review materials seized under a search warrant to determine if some are subject to attorney-client privilege. With respect to attorney-client privilege, having the judicial branch review a potential defendant’s rights is a good thing, not a bad one.
But executive privilege is different from attorney-client privilege. Broadly, executive privilege is a president’s interest in maintaining the confidentiality of communications with the most senior presidential advisers.
Cannon could have directed the special master to focus only on attorney-client privilege. Instead, her order ventured into the dangerous territory of undermining existing law on executive privilege.
In opposing the appointment of a special master, the Justice Department asserted that former presidents cannot assert executive privilege to shield material from the current executive branch. This position is legally correct and logically almost unassailable.
The sitting president has — or rather should have — access to any and all relevant governmental material that a predecessor had access to. It makes little sense to say that the Department of Justice, which is itself part of the executive branch, is blocked by executive privilege from seeing material that a previous president saw.
To claim otherwise is to suggest that the privilege attaches to the president as an individual person. It doesn’t. Executive privilege is a privilege of the office, not the person who occupies it.
But Cannon reasoned that “the government’s position arguably overstates the law.” She quoted the Supreme Court as saying that the current president “is in the best position” to determine the interest of the executive branch when it comes to privilege. But then, instead of applying that principle to rule against Trump, she asserted that this “did not rule out the possibility” of judges ruling for a former president against a sitting president on executive privilege.
At best, that’s a biased reading of the Supreme Court’s precedent on executive privilege. At worst, it flouts that precedent. Cannon’s ruminations don’t make new law; as a district court judge, she doesn’t have that power. But they do send a signal to the U.S. Court of Appeals for the 11th Circuit (a court with a majority of Trump appointees) and to the Supreme Court a direction they could take if they want to block the Department of Justice from using materials seized in the search.
Elsewhere in her ruling, Cannon also pointed out that in the very different context of a presidential assertion of privilege against Congress, the current Supreme Court had noted that the issue of a former president’s capacities to exert privilege were still undecided. This, too, is a message to the court of appeals: It suggests that the current justices could deviate from existing precedent to protect Trump, and hints that the court of appeals should anticipate that possibility instead of applying existing precedent, which is their legal and constitutional duty.
In practical terms, Cannon’s order extends the timeline of the current investigation. A special master review could take weeks or even months. If the Justice Department appeals, the process could extend substantially further — the Court of Appeals would have to rule and ultimately the issue would be brought to the Supreme Court. That leaves the Department of Justice with a tricky choice: Save time by letting the district judge’s ruling stand or try to thwart the judge’s proposed game plan by appealing. If it were me, I might let this ruling remain in place, since it does not actually make any new law — again, that’s beyond Cannon’s remit — but rather hints that new law might be made by other, more-senior courts.
Regardless, the judge’s order has already damaged the rule of law by suggesting that Trump appointees might do still more to protect the man who appointed them, and who could promote them to better jobs if he’s re-elected. Trump himself was rightly and roundly criticized by Chief Justice John Roberts for slamming “Obama judges.” Orders like this one underscore why it’s so important to have a judiciary that’s deferential to precedent and reliably nonpartisan.