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

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• Judy Woodruff:

  Former President Trump scored a major legal victory when a federal judge announced that 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 Yang:

  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 Trump's executive privilege.

  Barbara McQuade is a professor at the University of Michigan Law School and a former federal prosecutor.

  Barbara, thanks for joining us, especially just minutes after you have you finished lecturing, as we can see in that — the lecture hall — lecture hall behind you.

  Having a special master screen these documents of this material for executive privilege asserted by a former president, is there any legal precedent for that?

• Barbara McQuade, Former U.S. Attorney:

  No, not at all, John.

  In fact, I think that this order may be problematic, in that it allows the special master to review for executive privilege, without really defining what that means. A special master doesn't make legal decisions. A special master does sorting work.

  And so you need things to be clearly defined, so that 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 really not clear in that regard.

  It's really nonsensical to think that a former president can assert executive privilege against the executive branch. We have seen some courts recognize a residual privilege in a former president that can be requested and then asserted by the incumbent president, if he agrees, but only as to third parties, like Congress, when they're asking for information.

  The idea that you can assert executive privilege against the executive is really kind of illogical. And so it seems to me that 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 its order defining the parameters on Friday.

• John Yang:

  And, Barbara, you mentioned that former presidents in the past have asserted their executive privilege by asking the incumbent president, the sitting president, to do that.

  But is it clear legally that a former president can assert executive privilege?

• Barbara McQuade:

  No.

  In fact, there's just some theoretical preservation of residual privilege to — and the purpose of it, of course, is to protect candid communications and encourage candid communications between a president and his closest advisers while he is in office.

  And if the idea is that this could all be spilled out later, people might check themselves or you might have a chilling effect on their communications while in office. But it's the incumbent president, one executive, unitary executive, who gets to decide, in the end, whether to assert privilege.

  And so I think Joe Biden could take it under advisement and decide, if he wanted, to protect this privilege. But he has already said that he was deferring this decision to the acting archivist of the United States, who has said she is asserting the privilege in favor of the — or she is waiving the privilege. There is no privilege of these documents, because they belong to the United States government.

  And so I just don't see how this piece of the order can possibly take effect, and, as I said, whether that requires an appeal or a clarification in the order that the Justice Department's submits on Friday, I'm not sure the best vehicle for getting that. But, at the moment, I think there's just at least a lack of clarity as to what she means by filtering out executive privilege materials from the executive branch.

• John Yang:

  In her order, the judge made much of the — 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?

• Barbara McQuade:

  Yes, it's interesting.

  I think, on the one hand, it suggests that she is violating the rule of law and this idea that no one is above the law by giving special treatment to Donald Trump simply because he's a prior president. But I also think that language might be there to prevent this case from being cited in other cases.

  So, for example, if somebody in a garden variety bank robbery case in the future was subject of a search and said, I want a special master to review for privilege, and cited this case, the government could distinguish it by saying, no, no, no, look at this language. She says this is a unique situation. I think the phrase she uses is in a league of its own.

  And so it is a very unique situation that required that unique status. And I will say, although the rule of law does mean that a president is not above the rule of law, the president does have some special privileges that the rest of us don't have, like executive privilege. That is not a thing that exists for the rest of us.

  And so the fact that she's treated him differently here doesn't bother me so much. And, in fact, in some ways, I think it's an effort to safeguard this opinion from being used in precedent in a way that could harm law enforcement going forward.

• John Yang:

  This suit was filed not in the court — courthouse, where the search warrant was approved, which has led some people to talk 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 that Trump has put on the federal judiciary?

• Barbara McQuade:

  Oh, his influence is certainly vast.

  One of his probably greatest achievements was his ability to get judges on the courts, especially at the circuit level. And I think he worked very hard with the Federalist Society to find people who shared the ideology that he represented.

  And so I think that's one of the calculations that the Justice Department is going to have to go through here is, who might they draw on the 11th Circuit Court of Appeals? Could this end up worse?

  One of the things that the Justice Department always wants to avoid is making bad law. And so, right now, it's a district court opinion. So it has no precedential value. But if they appeal to this — to the 11th Circuit and lose, now there's a real precedent that's binding on lower courts.

  And so, when they think about the cast of characters that they may draw, I think they have to think about the long game here.

• John Yang:

  Barbara McQuade, still in her lecture hall at the University of Michigan, thank you very much.

• Barbara McQuade:

  Thank you, John.