Special master ruling in Trump probe is unprecedented

Liberal Opinion

Rashad Richey

National TV Political Analyst, Talk Radio Host, Univ. Prof.
Archive |

The Justice Department is appealing a federal judge’s ruling appointing a special master to review documents the FBI retrieved from the Florida home of former President Donald Trump. Judge Aileen Cannon, a Trump appointee, ruled the special master will be able to review the seized materials and identify those records that are protected by attorney-client privilege and executive privilege. The DOJ objected to the request, saying a special master could harm the government’s national security interests.

Straight Arrow News contributor Rashad Richey says the special master ruling in the Trump probe is unprecedented because of the questions it raises over whether executive privilege can be extended to former presidents.

That judge has now ruled in favor of Donald Trump, citing that Trump can have what’s called a master…a special master review the evidence seized by the FBI from his home in Mar-a-Lago. Now, typically, a special master, a third-party attorney, is appointed in situations like this to do one thing: To determine what is protected under attorney-client privilege. What’s unprecedented about this ruling is that it looks as if the judge is going to allow the powers of this special master to go beyond looking at documents that may be covered by attorney-client privilege, and actually connects to what’s called executive privilege. 

I’m going to explain in a moment why that’s unprecedented. So U.S. District Judge Cannon cleared the way for a third-party attorney to review all seized materials, not just for documents covered by the attorney-client privilege, the circumstance in which is pretty normative for a special master, but also potential executive privilege concerns. A move that is unprecedented, and here’s why: It’s not settled law.

What is considered privileged communication is typically when a president talks to an advisor, a trusted individual within the White House, and that conversation should not be made public. Well, here’s what’s not settled about it. Does it extend beyond the presidency? In other words, can an ex-president claim executive privilege or does it only exist for the current president of the United States?

Here we go. A Trump appointed judge, federal judge may have actually committed obstruction of justice, according to multiple legal experts. Let me give you the background to this. So there’s a judge – her name is Eileen Mercedes Cannon. Judge Cannon was appointed by Donald Trump, and approved by the US Senate in 2020. That judge has now ruled in favor of Donald Trump, citing that Trump can have what’s called a master…a special master, review the evidence seized by the FBI from his home in Mar-a-Lago. Now, typically, a special master, a third-party attorney, is appointed in situations like this to do one thing: To determine what is protected under attorney-client privilege. What’s unprecedented about this ruling is that it looks as if the judge is going to allow the powers of this special master to go beyond looking at documents that may be covered by attorney-client privilege, and actually connects to what’s called executive privilege. 

I’m going to explain in a moment why that’s unprecedented. So U.S. District Judge Cannon cleared the way for a third-party attorney to review all seized materials, not just for documents covered by the attorney-client privilege, the circumstance in which is pretty normative for a special master, but also potential executive privilege concerns. A move that is unprecedented, and here’s why.

It’s not settled law. What is considered privileged communication is typically when a president talks to an advisor, a trusted individual within the White House, and that conversation should not be made public. Well, here’s what’s not settled about it. Does it extend beyond the presidency? In other words, can an ex-President claim executive privilege or does it only exist for the current president of the United States? 

Once again, unsettled law. That’s why it’s unprecedented for a special master to be involved in making this decision, when the court Norte statute has provided clarity on if there’s even such a thing as privileged communications after someone is president of the United States. All right, here’s some of the key takeaways from the judge’s ruling and what may happen next.

A significant win for Trump, many are calling it, the primary takeaway simple: The ruling is a major win for Trump if, if, the special master decides that all of this communication and all of this confidential information, is in fact privileged and cannot be used in the investigation. Now, remember, this is about what can be used in the investigation. This is not about what the government can see. They’ve already looked at it. 

They said, listen, we’ve already used our internal filter methodology, we have gone through the information and we put one category as privileged, and the other as not privileged communication. So what does that mean? That means the government has already looked at all of it. So this is not about what the government sees. This is not about what the government knows. This is about what the government can use as their investigative standard and what will be allowable in the future in federal court. 

Isn’t that ironic, that the same guy who basically admitted to stealing classified documents, that same guy, former president of the United States…he wants you to believe that his conversation was privileged. Let’s call it classified. That his very conversations cannot be exposed to the public; they’re privileged communications, according to him. So he wants that to be secret, but he doesn’t give a damn about the secret he stole from the White House. He doesn’t care about the secrets, he housed at Mar-a-Lago. He doesn’t care that he was mishandling secret, or classified, highly confidential information.

There’s more. Both sides have been told by this judge, they need to come up with basically a parameter, a set of rules in order to engage how this special master will be governed and will operate. That’s likely not to happen anytime soon. Plans for the review of executive privilege, Trump said that a special master review needed to go beyond documents covered by the attorney-client privilege and it needs to look at his privileged communication. This is a strategy, once again. 

How did they get this judge? Well, they judge shopped, they basically made sure they filed this action with a federal judge who would be favorable to Donald Trump. That’s how they did it.

Steve Vladeck, who is the chair of the Charles Alan Wright in Federal Courts at the University of Texas law school, called the ruling preposterous. He highlighted and I quote, “the part where it blocks the government from continuing to use materials already in its possession, at the very least, that last ruling creates an immediately appealable injunctive-like order, which DOJ can now take to the 11th Circuit.”

So here’s my question to you. If Donald Trump is in fact not guilty of mishandling classified information, why not fight the case on the merits that the information was neither classified nor was it in fact, criminal what Trump did? That’s not how they’re fighting this case. They’re utilizing all of the leverage and manipulation and power that comes with being a former president of the United States. Once again, another engaging opportunity for corruption by the former president. There you have it.


Get unbiased straight facts, context, and perspective!