How long could the special master delay the Trump documents case?
There are a few options when it comes to determining how long it will take for Donald Trump's document scandal to move forward.
Vox warned that it could ultimately take years, pointing out that if the Justice Department files an appeal of Judge Aileen Cannon's ruling that it would take months to work its way through the 11th Circuit Court of Appeals. Chances are that regardless of what is decided at 11th Circuit, it would get appealed to the Supreme Court. If the 11th Circuit decides against Trump, he would demand his appointed judges help him.
Andrew Weissmann, a former prosecutor for special counsel Robert Mueller, told MSNBC that the Justice Department could "split the baby," as it were, and appeal not the special master but the injunction piece of her ruling, which would allow them to contest several pieces of the case law she issued.
At the same time, there's a question about what documents fall under this special master's purview. Trump willingly turned over many many boxes of documents up until May of 2022. When the Justice Department issued a search warrant they were asking not for the stolen documents that were in Mar-a-Lago previously, but that were still in the president's possession. While the DOJ certainly found many, 11,000 as well as other items, they weren't the 30 boxes that have been taken over the past 18 months.
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The DOJ also announced that they'd gone through everything with their filter team and returned things that unrelated staff concluded dealt with any kind of privilege. The only thing the so-called "special master" would be forced to go through would be what is left over. It shouldn't take more than a week to sift through that many pages. If a folder is clearly marked as a Defense Department document on developing a weapon, it isn't likely that "Rudy Giuliani" would appear anywhere in it.
Another way that it could take "months or even years," is if the judge was able to somehow appoint a special master who sought to intentionally delay it. The problem is that the stolen documents are of such a high classification level that the number of people who could be approved to go through them doesn't include the typical MAGA world. Someone like Michael Flynn or Giuliani wouldn't have the clearance level to view the documents.
SCOTUS Blog reporter Katie Barlow also agreed with the suggestion of former DC Circuit Judge Thomas Griffith, who was appointed by George W. Bush in 2005 and retired in 2020. His court dealt with several cases that involved national security, and it's possible he has the clearance level to deal with them. If he doesn't, it wouldn't take months or years to renew his classification.
The piece of the Cannon ruling that could take a while, according to the Vox piece, other than if the DOJ appealed, is whether or not something falls under executive privilege. The problem with the claim of executive privilege, however, is that it doesn't matter whether the documents are covered by executive privilege, they're still not Donald Trump's documents to have. So, if the Justice Department were to "give them back" to the rightful owner, it wouldn't be Trump, it would be the Archives. Cannon doesn't dispute that in her ruling.
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Whatever investigation the Justice Department is working on with the stolen documents doesn't only include this sub-set of information.
As Judge Cannon made clear in her ruling, "A special master shall be APPOINTED to review the seized property, manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property."
"The Government is TEMPORARILY ENJOINED from further review and use of any of the materials seized from Plaintiff’s residence on August 8, 2022, for criminal investigative purposes pending resolution of the special master’s review process as determined by this Court," Judge Cannon wrote.
There has been a hefty quantity of stuff that is classified and not classified that Trump already handed over that is in the possession of the National Archives and the Justice Department.
The Justice Department can work through all of those items without Cannon inserting herself into the investigation. The DOJ can call in NARA staff for questions, take depositions from the National Archives lawyer, subpoena any written information from the NARA and gather information about the case without the specific documents Judge Cannon put on hold.
So, the investigation is continuing onward, regardless of what Cannon said, simply because her purview is only over the stolen documents seized in the search warrant.
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