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Judge dignifies Trump’s claim of executive privilege

Donald Trump tried to delegitimize the legal process at all levels. Sadly, Judge Aileen Cannon’s decision played into that narrative.

A page from the order granting a request by Donald Trump's legal team to appoint a special master to review documents seized by the FBI during a search of his Mar-a-Lago estate.Jon Elswick/Associated Press

A key theme of US District Court Judge Aileen Cannon’s opinion appointing a special master to review more than 11,000 sensitive government records seized from former President Donald Trump’s Mar-a-Lago mansion seems to be caution. In granting Trump’s request, Cannon said the court will appoint an independent arbiter to review the documents “to ensure at least the appearance of fairness and integrity under the extraordinary circumstances.” There is a surface plausibility here: Why not err on the side of more review when something is as fraught as this case is?

Yet Cannon’s ruling does much more — it dignifies Trump’s claim of executive privilege. Not one court has said that a former president can block his successor from accessing records needed to carry out core constitutional functions — a criminal investigation and the protection of classified information. To most scholars, it isn’t a close question. The idea that a special master will somehow be able to expeditiously navigate this untested constitutional issue makes even less sense.


Put Trump’s request in context. The first review was taken by the National Archives and Records Administration, the administrative agency charged with enforcing the Presidential Records Act. The act was enacted when Richard Nixon claimed he could walk away with presidential records, even destroy them.

The law makes it clear that documents taken from the White House are the public’s records. Still, National Archives requires notice to the former president when the current president or the Department of Justice seeks to access the missing records, giving him an opportunity to contest the request. The National Archives did just that. When Trump’s lawyers asked for more time to review the documents, the National Archives obliged. When his lawyers challenged the Archive’s legal interpretation denying executive privilege, the National Archives wrote a lengthy response. Small wonder it took months for the FBI to get 15 boxes of material sent to them, and 11 more boxes when the FBI visited Mar-a-Lago, all containing classified information that had no business being stowed at Trump’s beach house. Trump had lots of time to cull specific documents he objected to as privileged. He didn’t.


A second review — long before the Aug. 8 FBI search — could have been through a lawsuit challenging the National Archives’ decision to turn over the documents to the Department of Justice. The District Court in the District of Columbia has jurisdiction “over any action initiated by the former President asserting that a determination made by the Archivist violates the former President’s rights or privileges.” Trump didn’t bother.

Trump could have challenged the grand jury subpoenas in court, a third review. Trump’s lawyers accepted service of the subpoenas — and did nothing.

Trump could have also asked the magistrate for a special master immediately following that search — as his lawyers Rudy Giuliani and Michael Cohen did when their offices were searched. He did not.

This was hardly a secret investigation, sprung on Trump at the last minute. Still, as Trump’s own Attorney General Bill Barr said, Trump “jerked around” the authorities until they had no choice but to search. He claimed that the Presidential Records Act was unenforceable against him, that the rules governing classified information didn’t apply and has attacked everyone involved: the magistrate judge, the FBI, the National Archives, the DOJ, and the attorney general. He tried to delegitimize the legal process at all levels.


Sadly, the judge’s decision played into that narrative. The court highlighted a few minor errors in the DOJ’s review of privileged information and noted some personal effects were swept up in the search. She cited mistakes in other DOJ cases, which had no bearing here. She minimized Trump’s delay in seeking a special master; she didn’t mention all the other ways in which he could have sought review, let alone the extraordinary deference that was shown to him throughout.

Still, what’s the big deal with yet another review, during which the DOJ is barred from using the documents it has taken (while allowing a national security damage assessment concerning the classified documents that were found)? The big deal is the conclusion that executive privilege applies here at all and that a criminal investigation will be delayed for no reason. But here’s the silver lining: While it could give Trump more time to bluster, it could also silence his court-bashing. He got most of what he asked for in this round. Of course, his silence will last only until the special master (or the court of appeals) rejects his claims, which is likely.

Nancy Gertner is a retired federal judge in Boston and a law professor at Harvard Law School.