Judge Cannon approved the appointment of a special master and enjoined DOJ “from further review and use of any of the materials” seized at Mar-a-Lago until the special master releases them. The order allows the government to “continue to review and use the materials seized for purposes of intelligence classification and national security assessments.” The parties are ordered to submit a joint filing that identifies special master candidates and outlines the duties and procedures to be followed.
The order contains an interesting detail:
On May 11, 2022, during the period of ongoing communications between Plaintiff and NARA, and before DOJ received the Fifteen Boxes, DOJ “obtained a grand jury subpoena, for which Plaintiff’s counsel accepted service”. The subpoena was directed to the “Custodian of Records [for] [t]he Office of Donald J. Trump” and requested “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings”. [Citations removed.]
Some have alleged that the Trump attorney who accepted service of that subpoena lied when he signed a statement attesting that all documents the subpoena requested had been turned over. But notice that the custodian of records for the Office of Donald J. Trump can only represent the “Office of” and not the person of Trump. In that case, the custodian’s attestation may not have been a lie at all.
I’m not saying there is a weakness in the government’s case. Rather, we should be careful in our assumptions about it. It still remains to be seen, or even alleged, that Trump did something wrong.
Tidewater News and Opinion Forum 
The Babylon Bee quotes Christopher Wray that the apparently empty Secret and Top Secret folders displayed on the floor of Trump’s office actually contained defense secrets so vital that they were printed with invisible ink on invisible paper.
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Judge Cannon also rejected the administration’s claim that executive privilege cannot apply to a former executive. That alone might be a major weakness in any case DOJ decides to prosecute.
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Executive privilege is the purview of the executive branch of the government. The current president can invoke or reject privileges relating to its documents. And it also relates to the separation of powers as in protecting certain documents from Congressional inquiries. The DOJ is part of the executive branch.
The only legitimate privilege Trump may have is attorney-client and only if not a criminal investigation that does not involve the attorney as a perp.
Judge Cannon did specify that the appearance of fairness is more important with an ex-president than any other citizen. I don’t agree with that, but she was upfront at least.
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The persistence of Executive Privilege after the President’s term has ended is limited, but not ended. The current President can view such documents but it remains to be litigated whether he can void privilege for predecessors.
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A president cannot be constrained by predecessors’ demands for privilege. That would hamper his ability to decide what is best for the nation.
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I would agree he has access to those documents for his decision making, but not to divulge them to others unless there is clear criminal action.
To do so defeats the purpose of executive privilege. Advisors will not present unpopular options if they believe they will be revealed, thus hampering the President’s choices.
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RE: “Executive privilege is the purview of the executive branch of the government.”
But it is not called “executive branch privilege.” Logically, if we assume that executive privilege exists only during the term of office, then there is really no purpose for it at all.
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Why? The point of executive privilege as I understand it is to secure the separation of powers. When Trump was president, he exerted that privilege, ignored subpoenas and otherwise stonewalled Congressional inquiries.
Fine. But he is a citizen now and has no power over the executive branch anymore. It is up to the current president to decide.
I think that is partly why Trump absconded with 11,000 presidential documents so that whatever might incriminate him in all his criminal investigations would be in his control.
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RE: “The point of executive privilege as I understand it is to secure the separation of powers.”
How does it achieve that effect?
I can see how executive privilege might derive from the separation of powers, but not how the separation of powers might derive from executive privilege.
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I used the wrong phrasing. Executive privilege helps ensure separation.
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The DC Circuit ruled that Executive Privilege rests with the sitting executive. SCOTUS did not take up the case, therefore the circuit ruling stands. TFG has NO executive privilege claim without approval of the sitting executive.
A Trump-appointed judge was shopped for and found. Funny how when Democrats do it they are accused of nefarious intentions. TFG does it,(two weeks later than he probably should have) and it gets cheered as a “win”. Lots of legal scholars have already sounded off that the judge’s decision was questionable at best.
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That makes better sense.
I tend to think of executive privilege in terms of business management. If parts of the privilege did not continue after one leaves the managerial position, no one would ever want the job.
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Understand.
Two observations:
Different president, different advisors, so privilege means little. However, the current president is certainly entitled to read the documents during his tenure. After all, they do belong to the government, and the executive branch has custody.
Not wanting the job is kind of hard to imagine since the candidates amass over a billion dollars in campaigns to nail it.
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RE: “After all, they do belong to the government, and the executive branch has custody.”
That remains to be determined by the special master. In any case, I’m not in favor of the principle that a sitting president has special authority to invade the privacy or infringe the constitutional protections of a former president.
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I think the government has a good case for appeal. Cannon gave undue deference to an ex-president that absolutely no one else in the nation would receive.
Trump already got the redacted affidavit, unheard of procedure. Excepting attorney-client documents, so long as they don’t involve attorneys who are involved in any criminal activities, the documents are not Trump’s to take or keep. The are executive branch documents being analyzed by the executive branch. Congress is out of it.
In my opinion, she punted the case. Perhaps knowing that the appeals court would overrule her, she kept her bona fides as a MAGA republican.
Samuel W. Buell, a Duke University law professor, agreed.
“To any lawyer with serious federal criminal court experience who is being honest, this ruling is laughably bad, and the written justification is even flimsier,” he wrote in an email. “Donald Trump is getting something no one else ever gets in federal court, he’s getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he is being persecuted, when he is being privileged.”
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Even Bill Barr said the judge’s decision was ludicrous.
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