Legal implications of decision to appoint special master to review Trump documents

P SCORED A MAJOR LEGAL VICTORY WHEN A FEDERAL JUDGE ANNOUNCED SHE WOULD BE APPOINTING AN OUTSIDE LEGAL EXPERT TO REVIEW FILES SEIZED BY LAW ENFORCEMENT FROM MAR-A-LAGO, EFFECTIVELY HALTING THE JUSTICE DEPARTMENT’S EXAMINATION OF THE DOCUMENTS UNTIL THE EXPERT’S WORK IS FINISHED. OUR JOHN YANG HAS MORE ON THE LEGAL IMPLICATIONS OF THE DECISION. JOHN: JUDY, IN ADDITION TO SCREENING FOR DOCUMENTS PROTECTED BY ATTORNEY-CLIENT PRIVILEGE, JUDGE AILEEN CANNON TOOK THE UNUSUAL STEP OF ORDERING THE OUTSIDE EXPERT TO SEE IF ANY OF THE MATERIALS ARE PROTECTED BY FORMER PRESIDENT TRUMP’S EXECUTIVE PRIVILEGE. BARBARA MCQUADE IS A PROFESSOR AT

THE UNIVERSITY OF MICHIGAN LAW SCHOOL AND A FORMER FEDERAL PROSECUTOR. BARBARA, THANK YOU FOR JOINING US, ESPECIALLY MINUTES AFTER YOU HAVE FINISHED LECTURING, AS WE CAN SEE FROM THE LECTURE HALL BEHIND YOU. HAVING A SPECIAL MASTER SCREEN THESE DOCUMENTS, THIS MATERIAL, FOR EXECUTIVE PRIVILEGE ASSERTED BY A FORMER PRESIDENT — IS THERE ANY LEGAL PRECEDENT FOR THAT? PROF. MCQUADE: NOT AT ALL AND I THINK THE ORDER MAY BE PROBLEMATIC IN THAT IT ALLOWS THE SPECIAL MASTER TO REVIEW FOR EXECUTIVE PRIVILEGE WITHOUT DEFINING WHAT THAT MEANS. A SPECIAL MASTER DOESN’T MAKE LEGAL DECISIONS, A SPECIAL MASTER DOES

SORTING WORK. YOU NEED THINGS TO BE CLEARLY DEFINED SO THE SPECIAL MASTER CAN FIGURE THAT OUT. IS EVERY CLASSIFIED DOCUMENT CREATED BY AN EXECUTIVE BRANCH AGENCY POTENTIALLY

PROTECTED BY EXECUTIVE PRIVILEGE? I DON’T THINK SO, BUT THE ORDER IS NOT CLEAR IN THAT REGARD. IT IS NONSENSICAL TO THINK THAT A FORMER PRESIDENT CAN’T ASSERT EXECUTIVE — CAN ASSERT EXECUTIVE PRIVILEGE AGAINST THE EXECUTIVE BRANCH. WE’VE SEEN SOME COURTS RECOGNIZE A RESIDUAL PRIVILEGE BY A PRESIDENT THAT CAN BE REQUESTED AND ASSERTED BY THE INCUMBENT PRESIDENT IF HE AGREES, BUT ONLY AS TO THIRD PARTIES LIKE CONGRESS. THE IDEA

THAT YOU CAN ASSERT EXECUTIVE PRIVILEGE AGAINST THE EXECUTIVE IS ILLOGICAL. IT SEEMS TO ME THE JUSTICE DEPARTMENT NEEDS TO EITHER APPEAL THIS ORDER, OR IT MAY BE ABLE TO MANAGE THIS QUESTION BY GETTING SOME CLARIFICATION WHEN IT SUBMITS IS ORDER DEFINING THE PARAMETERS ON FRIDAY. JOHN: YOU MENTIONED FORMER PRESIDENTS IN THE PAST HAVING — PAST HAVE ASSERTED EXECUTIVE PRIVILEGE BY ASKING THE SITTING PRESIDENT TO DO THAT. IS IT CLEAR LEGALLY THAT A FORMER PRESIDENT CAN ASSERT EXECUTIVE PRIVILEGE? PROF. MCQUADE: NO, IN FACT, THERE IS SOME THEORETICAL PRESERVATION OF PRIVILEGE. THE PURPOSE IS TO PROTECT CANDID

COMMUNICATIONS AND ENCOURAGE CANDID COMMUNICATIONS BETWEEN A PRESIDENT AND HIS CLOSEST ADVISORS WHILE IN OFFICE, AND THE IDEA THAT IF THIS COULD BE SPILLED OUT LATER, PEOPLE MIGHT CHECK THEMSELVES OR IT MIGHT HAVE A CHILLING EFFECT ON COMMUNICATIONS WHILE IN OFFICE. BUT IT IS THE INCUMBENT PRESIDENT, ONE UNITARY EXECUTIVE, WHO GETS TO DECIDE IN THE END WHETHER TO ASSERT PRIVILEGE. I THINK JOE BIDEN WOULD TAKE IT UNDER ADVISEMENT AND DECIDE IF YOU WANTED TO PROTECT PRIVILEGE, BUT HE ALREADY SAID HE WAS DEFERRING THIS TO THE ARCHIVIST, SAYING SHE WAS ASSERTING THE PRIVILEGE — WAVING THE PRIVILEGE,

THERE IS NO PRIVILEGE OF THE DOCUMENTS BECAUSE BELONG TO THE UNITED STATES GOVERNMENT. I DON’T SEE HOW THIS PIECE OF THE ORDER CAN POSSIBLY TAKE AFFECT. AS I SAID, WHETHER THAT REQUIRES APPEAL OR CLARIFICATION IN THE ORDER THE JUSTICE DEPARTMENT SUBMITS ON FRIDAY, I’M NOT SURE IT IS THE BEST VEHICLE FOR GETTING THAT. AT THE MOMENT, THERE IS A LACK OF CLARITY BY WHAT SHE MEANS — OF WHAT SHE MEANS BY FILTERING OUT EXECUTIVE PRIVILEGE MATERIALS. JOHN: IN HER ORDER, THE JUDGE MADE MUCH OF MR. TRUMP’S STATUS AS A FORMER PRESIDENT. BUT IS SHE IN

A WAY CREATING A DIFFERENT STANDARD FOR FORMER PRESIDENTS BY DOING THIS? PROF. MCQUADE: IT’S INTERESTING, I THINK ON THE ONE HAND IT SUGGESTS SHE IS VIOLATING THE RULE OF LAW, THE IDEA THAT NO ONE IS ABOVE THE LAW. I ALSO THINK THE LANGUAGE MIGHT BE THERE TO PREVENT THE CASE FROM BEING CITED IN OTHER CASES. SO IF SOMEONE IN A GARDEN-VARIETY BANK ROBBERY CASE IN THE FUTURE SAID I WANTED A SPECIAL MASTER, THE GOVERNMENT COULD DISTINGUISH BY SAYING LOOK AT THIS LANGUAGE. SHE SAYS THIS IS A UNIQUE SITUATION, I THINK THE PHRASE SHE USES IS

A LEAGUE OF ITS OWN. IT’S A UNIQUE SITUATION TO REQUIRE THE UNIQUE STATUS. THE RULE OF LAW DOES MEAN THAT THE PRESIDENT IS NOT ABOVE THE RULE OF LAW BECAUSE HE HAS A SPECIAL PRIVILEGE THE REST OF US DON’T HAVE LIKE EXECUTIVE PRIVILEGE. THAT DOES NOT EXIST FOR THE REST OF US. THE FACT THAT SHE HAS TREATED HIM DIFFERENTLY DOESN’T BOTHER ME SO MUCH AND IN SOME WAYS I THINK IT IS AN EFFORT TO SAFEGUARD THE OPINION FROM BEING USED AS PRESIDENT IN A WAY THAT COULD — PRECEDENT IN A WAY THAT COULD HARM LAW

ENFORCEMENT IN THE FUTURE. JOHN: SOME PEOPLE HAVE TALKED ABOUT JUDGE SHOPPING. IF THE JUSTICE DEPARTMENT DOES APPEAL, IT WOULD GO TO THE 11TH CIRCUIT COURT OF APPEALS, WHERE SIX OF THE ACTIVE JUDGES ARE NOMINATED BY TRUMP. WHAT DOES THIS SAY ABOUT THE IMPRINT TRUMP HAS PUT ON THE FEDERAL JUDICIARY? PROF. MCQUADE: HIS INFLUENCE IS CERTAINLY VAST. ONE OF HIS PROBABLY GREATEST ACHIEVEMENTS WAS HIS ABILITY TO GET JUDGES ON THE COURT, ESPECIALLY AT THE CIRCUIT LEVEL. I THINK HE WORKED VERY HARD WITH THE FEDERALIST SOCIETY TO FIND PEOPLE WHO SHARED THE IDEOLOGY THAT HE REPRESENTED. I

THINK THAT’S ONE OF THE CALCULATIONS THAT THE JUSTICE DEPARTMENT IS GOING TO HAVE TO GO THROUGH HERE, WHO MIGHT THEY DRAW ON THE 11TH CIRCUIT COURT OF APPEALS AND COULD IT END UP WORSE? ONE OF THE THINGS THE JUSTICE THE PERMIT WAS TO AVOID IS MAKING BAD LAW. RIGHT NOW IT IS DISTRICT COURT OPINION SO IT DOESN’T HAVE THAT VALUE, BUT IF THEY APPEAL TO THE CIRCUIT COURT, IT COULD HAVE BE BINDING ON OTHER COURTS. THEY HAVE TO BE THINKING ABOUT THE LONG GAME. JOHN: BARBARA STILL IN HER LECTURE HALL AT THE UNIVERSITY OF MICHIGAN.

THANK YOU VERY MUCH. PROF. MCQUADE: THANK YOU. ♪