Special master. Isn't that a poem by Allen Ginsberg? No, wait, the Ginsberg poem is "Please Master." To the best of my knowledge Trump's request for a special master to review the trove of government documents seized by the FBI at the Mar-a-Lago palace has nothing to do with Ginsberg's poem about sex and domination. But, heck, this is Trump. Let's throw it out there anyway. What kind of special master does the former president have in mind?
The question is rhetorical, the answer self-evident. Trump's default strategy is to delay and obfuscate. In this he and his crack legal team have been aided by an inexperienced judge nominated in April 2020 and confirmed by the Senate on November 12. Judge Aileen Cannon's ruling granting the request for a special master "to protect the integrity of privileged documents" has been widely criticized for "seeming to extend special treatment to Trump and for disrupting the probe before anyone has been charged with a crime." The privileges in question relate to attorney-client privilege and the questionable claim of executive privilege by a man who is no longer the executive.
The ruling "temporarily enjoins the government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order"; however, "[t]his order shall not impede the classification review and/or intelligence assessment." The DOJ appealed on grounds that the intelligence community's review of classified material with national security implications "cannot be readily segregated from the Department of Justice’s and Federal Bureau of Investigation’s activities in connection with the ongoing criminal investigation."
Trump's case and Cannon's ruling have been savaged even by Republicans Bill Barr and Karl Rove, former chief political adviser to Bush fils, referred to one presumes affectionately by his old boss as Turd Blossom, a Texas desert wildflower that grows up out of a meadow muffin. Barr carried plenty of water for the former president during his tenure as attorney general, so there is an element of self-interest in his rebuttal of Trump's claims as he seeks to restore a reputation shredded by his service to the former president and by the bye to promote his new book. One need not be naïve about this or the possibility that there is some score settling at work. None of that negates his blunt assessment that there was no justification for taking the documents: "There is no scenario, legally, under which the president gets to keep the government documents—whether it’s classified or unclassified. If it deals with government stuff, it goes back to the government."
As for the claim that Trump declassified everything:
I, frankly, am skeptical of this claim that "I declassified everything." I think it’s highly improbable. … If in fact he sort of stood over scores of boxes, not really knowing what was in them, and said, "I hereby declassify everything in here," that would be such an abuse, and—that shows such recklessness that it’s almost worse than taking the documents. (Blake, Barr's quest to dismantle)
Rove likewise cuts Trump no slack: "Why he was holding on to these materials when he had no legal authority to do so under the Presidential Records Act is beyond me." Rove also punctured Trump's assertion that the search was an unnecessary escalation: "President Trump has said several times all they had to do was ask. Well, my sense is they were asking for a year and a half" (Zach Schonfeld, Karl Rove: 'Beyond me').
In Barr's never humble opinion, Cannon "didn’t address the only question that’s in dispute, which is, can the former president have standing to say that the investigators don’t even get to look at the documents—the classified documents that he wrongfully had at Mar-a-Lago? That’s the only question. And she dodges it.”
He also takes dead aim at the Republican talking point that investigation of the former president is unprecedented: "People say this was unprecedented. But it’s also unprecedented for a president to take all this classified information and put them in a country club, okay?"
What then is to be made of Judge Cannon's actions? It is no secret that Trump regards her and all of his judicial nominees as his judges. The presumption that he nominated her with this kind of scenario in mind is not unreasonable. Her membership in the très conservative Federalist Society reflects her political slant. On the other hand, attorneys who sat across from Cannon on cases she prosecuted as an assistant U.S. attorney have described her as quick, talented, bright, and process oriented.
Cannon's rationale for granting the request for a special master is a mishmash not vindicated by a valid point here and there amid the gibberish. It invites the charge of partisan hackery. No doubt she shares with her Federalist Society colleague Justice Amy Coney Barrett the conviction that she is not a partisan hack. Whether her ruling is indeed an exercise in hackery or simply less than stellar reasoning in a good faith effort to judge fairly a case that is unprecedented from every side and angle is almost beside the point. Either way the effect is to undermine if not prevent altogether investigation into wrongdoing by the former president.
Wrangling over the special master and the parameters of review continues as I type and as Trump calls for himself to be reinstated as president or at a minimum given a do-over election immediately because, he alleges without evidence, the FBI buried an investigation into Hunter Biden's laptop to prevent him from winning in 2020. MAGA faithful await a restoration that keeps getting pushed back when it does not happen on the date predicted. Trump attorney Christina Bobb, a photogenic young woman straight from central casting, previously floated the idea that he could be reinstated if Republicans take control of Congress in the mid-term elections. Bobb is the legal whiz and former One America News journalist, a term used exceedingly loosely in this context, who with fellow attorney Evan Corcoran reportedly met with the head of the counterespionage section of the DOJ's national security division and FBI agents in June, handed over a sheaf of classified material, and signed a statement attesting that to the best of her knowledge all classified materials at Mar-a-Lago had been returned. The best of her knowledge, as we have seen, turned out to be somewhat flawed. Meantime, reputable and competent attorneys with experience in such cases are keeping the former president at arm's length. Even that may be a bit close for comfort.
The threat to constitutional governance and rule of law is ongoing.
References and related reading
Aaron Blake, Barr’s quest to dismantle Trump’s classified-document defenses, Washington Post, September 7, 2022
Aaron Blake, What about Clinton’s emails? How Trump’s document controversy differs, Washington Post, August 30, 2022
Brendan Cole, Trump Lawyer Says He Will Be Reinstated as President if GOP Win Midterms, Newsweek, July 9, 2022
Erin Doherty, Judge grants Trump request for special master to review Mar-a-Lago docs, Axios, September 5, 2022
Erin Doherty, DOJ appeals judge's special master ruling in Trump case, Axios, September 8, 2022
Aziz Huq, The Ominous Debate Over 'Trump Judges,' Politico, September 9, 2022
Jonathan V. Last, "Iron Fists" Are "Smart," The Bulwark, September 8, 2022
Ann E. Marimow, In ruling for Trump, low-profile judge Aileen Cannon invites scrutiny, Washington Post, September 9, 2022
Azi Paybarah, Trump’s lawsuit against Clinton was filed in court with judge he appointed, ruling reveals, Washington Post, September 9, 2022
Read the judge’s full ruling for special master to review Trump documents, PBS NewsHour, September 5, 2022
Lisa Rubin, How Trump lawyers put themselves at risk with reported statement to DOJ, MSNBC, August 24, 2022
Michael Schnell, Five things to know about Aileen M. Cannon, the judge who granted Trump a special master, The Hill, September 7, 2022
Zach Schonfeld, Karl Rove: 'Beyond me' why Trump held on to docs 'when he had no legal authority,' The Hill, August 26, 2022
Aila Slisco, Trump Ridiculed After Calling for His Reinstatement: 'Ridiculous at Best,' Newsweek, August 29, 2022