MAJOR FREAKOUT IN ANTI-TRUMP WORLD. The Supreme Court decisions in the 1857 Dred Scott case and the 1944 Korematsu case are generally considered two of the worst judgments ever handed down by the nation’s highest court. One concerned slavery, and the other concerned the internment of Japanese Americans in World War II. Today, both are held up as examples of historic, grievous judicial error.
Which is why it was a little weird to see one of the country’s most distinguished legal scholars point to Dred Scott and Korematsu as comparisons in discussing U.S. District Judge Aileen Cannon’s decision to grant the appointment of a special master to review documents in the Justice Department’s investigation of former President Donald Trump. It seemed a little…out of proportion. Cannon’s order will allow a neutral third party, approved by both the Justice Department and the Trump defense, to review material seized in the Aug. 8 FBI raid on Mar-a-Lago, Trump’s winter home. It is unlikely it will go down as one of the most notorious, far-reaching judicial decisions in American history.
Don’t tell that to Laurence Tribe. “Cannon’s order will go down as part of the judicial anti-cannon — the body of decisions, like Dred Scott or Korematsu, that lawyers use for generations to teach students how NOT to wield the judicial power,” Tribe, the retired Harvard University professor and legal legend, tweeted on Sunday. If Tribe’s Supreme Court comparisons seemed a bit over the top, his general tone of anger about the decision was representative of much of the liberal legal world.
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Cannon wrote that a “commitment to the appearance of fairness is critical” because of the “extraordinary circumstances” in a case involving the criminal investigation of a former president. “Courts recognize that special masters uniquely promote ‘the interests and appearance of fairness and justice,'” Cannon continued.
Certainly, there is a need for the “interests and appearance of fairness and justice” to be observed in the Mar-a-Lago case, perhaps the most contentious legal matter since the last time the Department of Justice pursued Trump. That was perhaps especially clear when Cannon revealed some of the items the FBI took from Mar-a-Lago. As part of the proceedings, the Justice Department’s “Privilege Review Team” was required to give the judge a report on what had been taken. The contents of that report have not been made public, but the judge gave a preview:
“According to the Privilege Review Team’s Report, the seized materials include medical documents, correspondence related to taxes, and accounting information,” Cannon wrote. “The Government also has acknowledged that it seized some ‘personal effects without evidentiary value’ and, by its own estimate, upwards of 500 pages of material potentially subject to attorney-client privilege.”
At issue are not only documents that might be subject to attorney-client privilege but also, possibly, executive privilege. Trump has not asserted executive privilege over the documents. The Justice Department argued executive privilege simply does not apply to an ex-president and that Trump would never be legitimately able to assert the privilege. It asked the judge to ignore the entire question of executive privilege. But Cannon argued that the question is not quite that clear-cut. While she did not suggest that Trump would succeed with a claim of executive privilege — she actually seemed to have strong doubts about it — she nonetheless said it would be reasonable to have a special master look into what materials might be involved with such a claim.
In any event, Cannon pointed out, special masters are not at all rare in legal proceedings. “The appointment of a special master is not uncommon in the context of attorney-client privilege,” Cannon wrote. “Nor is the appointment of a special master unheard of in the context of potentially executive privileged material. In fact, the Government itself recently contemplated and requested the appointment of a special master to review for both attorney-client and executive privilege.”
It’s true. The government did just that, Cannon said, in a case involving the April 28, 2021, FBI search of Rudy Giuliani’s New York apartment. Giuliani’s lawyers argued that the materials taken involved attorney-client privilege, since Giuliani is an attorney, and executive privilege, since he was Trump’s attorney. The government, as Cannon noted, agreed to a special master to resolve any privilege questions, and the judge in the case, U.S. District Judge Paul Oetken, ordered that a master be appointed.
So now Cannon has ordered a special master in the Mar-a-Lago documents case. She told the Justice Department it could not use the seized materials for investigative purposes while the special master is working. That does not mean the department has to shut down the Trump case — it can conduct interviews or do other investigative work. Also, the director of national intelligence is conducting a separate review of the documents to determine if Trump’s holding them at Mar-a-Lago did any damage to national security. Cannon allowed that review to continue.
The critics’ biggest objection to Cannon’s ruling is that it will delay the Justice Department’s pursuit of the case and with it, possibly, the indictment of Trump. Of course, cases are delayed all the time. Would a delay for a special master to do his or her work do some sort of grave damage to the prosecution? Cannon decided it would not. “The Court … finds that these unprecedented circumstances call for a brief pause to allow for neutral, third-party review to ensure a just process with adequate safeguards,” she wrote.
In the end, you might think the judge did the right thing or you might think she did the wrong thing. But would anyone think this is a Dred Scott-level or Korematsu-level case in which the judge has made an error so far-reaching and so outrageous and so serious that it deserves to be in the hall of judicial infamy? Or would, perhaps, a fair observer think the judge has made a reasonable attempt to resolve the question and it is the flipped-out, over-the-top critics who have abandoned reason?
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