Judge’s order for Trump’s special master is deeply flawed, legal experts say

A judge’s order authorizing a special master to review documents the FBI seized from former President Donald Trump’s Florida home is a deeply flawed and unenforceable mess, legal experts told NBC News Tuesday.

U.S. District Judge Aileen Cannon on Monday granted Trump’s request for a special examination in chief of all evidence seized last month from his Mar-a-Lago estate and temporarily blocked parts of the Justice Department’s investigation into vault of top secret and classified documents recovered by federal agents.

Cannon, 41, a Trump appointee, also made legal defense arguments that Trump’s team had not made, including that the former president could suffer “damage” to his reputation if the Justice Department indicted him.

Legal experts criticized the overall decision and questioned how it could be implemented, while warning that an appeal by the government could further drag the investigation down.

“I think it’s a corrupt decision. I think it’s a special law just for Donald Trump by a Trump appointee, and it’s not anchored by precedent, it can’t be supported by law, it’s not going to be passed by anybody who’s not a Trump fanatic,” said Paul Rosenzweig, Department Official of Homeland Security under former President George W. Bush.

“It’s extremely disappointing, because until now … the courts have been the last bulwark against overreach, and this decision suggests that at least some of Trump’s judges have put faith in the man over faith in the rule of law, and that’s deeply unfortunate. ” said Rosenzweig, who was a senior adviser to Ken Starr, the independent counsel who investigated President Bill Clinton.

Bradley Moss, an attorney who specializes in national security issues, said Cannon’s decision “is not well-founded in any law or legal theory” and that it involved “a much better defense of the former president’s legal position than anything the real lawyers put forward.” of .

“My view is that, at the very least, the Justice Department should appeal” the part of the ruling that temporarily prevents the Justice Department from using the seized documents to further its criminal investigation, Moss said.

But, he warned, the appeal is not an easy road. The 11th U.S. Circuit Court of Appeals, which would hear any appeal in this case, “has taken a particular conservative turn, and the U.S. Supreme Court is 6-3 in favor of conservatives,” Moss said. “It is not a given that he would win on appeal.”

Brandon Van Grack, a former counterintelligence prosecutor who worked on special counsel Robert Mueller’s investigation into Russian interference in the 2016 election, said “there would be a strong push for an appeal,” especially since the Justice Department’s criminal investigation and assessment of damages from the Office of the Director of National Intelligence probably go hand in hand and “cannot be divided.”

Part of Cannon’s order gave the Office of the Director of National Intelligence permission to continue reviewing the documents for a damage assessment, a process in which the Justice Department plays a role.

“The criminal investigation informs the intelligence investigation,” Van Grack said, adding that Justice Department investigators likely fingerprinted the classified documents to determine who handled them — a key step in determining how much they might have. released.

Cannon’s ruling could also prevent investigators from questioning witnesses about who had access to the documents. “It will delay and harm the investigation,” Van Grack said. “They won’t have full information.”

Legal experts also took issue with Cannon’s statement that the special master should review the documents for potential claims of executive privilege, rather than limiting the review to traditional attorney-client issues.

Trump’s team argued that a special master — essentially a court-appointed neutral third party — was necessary because they could not rely on the so-called filter team used by the Justice Department to separate privileged documents, saying they could not be expected to “ to trust the restraint of currently unregulated researchers.’

The Justice Department argues that executive privilege is not at issue because the seized documents do not belong to Trump.

“He is no longer president. And because he is no longer president, he had no right to those documents,” Justice Department attorney Jay Bratt told the judge at a hearing last week.

Rosenzweig agreed, calling it “absurd” that a special master should be looking into possible executive privilege issues.

“I don’t think there’s a good road map,” Rosenzweig said, noting that there is no executive privilege law for a special master.

“I don’t know how a special master will proceed, which means inevitable delay and controversy,” he said.

Even some of Trump’s former allies slammed Cannon’s decision.

“The opinion, I think, was wrong and I think the government should appeal to it. They are deeply flawed in a number of ways,” former Attorney General William Barr said in an interview with Fox News.

“I don’t think the appointment of a special master will last. And even if it does, I don’t see it materially changing the trajectory. I don’t think it changes the game as much as maybe we’ll have a rain delay for a couple of innings,” he said. Barr.

Barr said the 11th Circuit could expedite the appeal, but acknowledged that “it may take several months to resolve.”

NBC News legal analyst Chuck Rosenberg, a former U.S. attorney, said: “There seems to be a trade-off between appealing to a poorly reasoned injunction on the one hand and further delaying part of their investigation on the other. In the end, the government is very likely to get what it’s entitled to — one way or another — but the way forward looks a little murky.”

Trump’s lawyers and the Justice Department are expected to file a joint filing with the judge naming potential special masters by Friday.

George Washington University law professor Stephen Saltzburg, a former Justice Department official, said whoever is chosen “would have to have an incredibly high security clearance now or get one in a very short time.”

He also predicted that whoever is chosen would be able to work fairly quickly.

Salzburg, who has worked as a special teacher, said the reason judges generally want special teachers “is that they want a review done quickly and thoroughly and they don’t have the time to do it themselves.”

For some legal analysts, the unique situation unfolding in this case means it is impossible to have a clear picture of the road ahead.

Kel McClanahan, the executive director of National Security Counselors, a nonprofit law firm, called the judge’s order “a reinterpretation of the law,” making it impossible to know how the case will play out.

“The word ‘unprecedented’ gets thrown around a lot, especially in this case, but this case is literally unprecedented,” McClanahan said. “It’s not anything we’ve ever dealt with before, and so using the past to inform what’s going to happen next is ridiculous.”

This article was originally published on NBCNews.com

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