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Multiple legal experts have expressed dismay with the appointment of a special master to review documents discovered by federal authorities last month in Donald Trump’s Mar-a-Lago home.
The surprise Labor Day order issued by Trump-appointed U.S. District Judge Aileen Cannon appeases Trump’s attorneys, who initially made the request due to “presumptively privileged” documents that perhaps involve presidential communication with advisers. The decision not only allows an independent expert to review some 13,000 records but also halts the ongoing criminal investigation by the Department of Justice.
Attorney and former acting Solicitor General Neal Katyal said Monday that “any of my first year law students would have written a better opinion.”
That’s just a few of many more problems. Frankly, any of my first year law students would have written a better opinion.
— Neal Katyal (@neal_katyal) September 5, 2022
He particularly took umbrage with Cannon’s reference to the potential “reputational” harm of Trump in relation to the investigation, arguing that every criminal defendant suffers reputational harm and yet not every case requires a special master.
“Judge [Cannon] enjoins the entire investigation because some of the material might be subject to Executive Privilege,” Katyal said as part of a series of tweets. “But Executive Priv isn’t some post-presidential privilege that allows Presidents to keep documents after they leave office. At most, it simply means these are Executive documents that must be returned to the archives. It doesn’t in any way shape or form mean they can’t be used in a criminal prosecution about stolen docs.”
Cannon’s order finding that “some tiny percentage of materials might be privileged,” Katyal said, pauses the investigation entirely.
“That’s a bazooka when one needs at most a scalpel,” he added.
GIORGIO VIERA/AFP via Getty Images
Attorney Seth Abramson echoed Katyal’s thoughts, writing on Twitter that “nearly every criminal defendant in the history of criminal defendants everywhere in the world” thought they were being treated unfairly at some point.
“Trump appointee Aileen Cannon declared—and not just implicitly, but, horrifyingly, *explicitly*—that Donald Trump’s reputation simply *matters* more than yours or mine, as do his property rights,” Abramson tweeted. “And they matter more because he is a powerful man.”
Norm Ornstein of the American Enterprise Institute alleged in a tweet that Cannon “engaged herself in obstruction of justice” simply by taking the case—which was originally overseen by a magistrate judge who presides in a jurisdiction near Mar-a-Lago, closer than Cannon herself.
Legal scholar Jonathan Turley disagreed, calling the special master appointment “the right decision.” He has stated that Attorney General Merrick Garland missed multiple opportunities to “earn the public trust” regarding the document search and investigation, including opting for a search warrant rather than a second subpoena.
“The Justice Department dramatically over-played its hand by claiming that the appointment would threaten national security or that there was no legal basis for such an appointment,” Turley tweeted. “Those were the same claims used to oppose any release of any information in the redacted affidavit—only to be forced to release such a document without compromising national security.”
Trump was active on his Truth Social account on Monday, calling the FBI and DOJ “totally corrupt” and saying that “many sinister and evil outside sources” are reducing the United States “to being a third-world nation.”
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