On Monday, former U.S. Attorney Harry Litman reacted to the news that a Trump-appointed judge in Florida granted the former president's demand to pause the DOJ investigation into the classified documents at Mar-a-Lago, pending review by a special master for documents protected by attorney-client privilege and executive privilege.
The particular problem with the ruling by Judge Aileen Cannon, wrote Litman, is the ruling on executive privilege — which he said blows up legal understanding of any standards for when that protection applies.
"If this holds up, it's going to require the minting of a whole new area of law for the scope and boundaries of a former Pres's executive priv interests. How the hell is a Special Master supposed to call balls and strikes? This could be huge delays. I think DOJ needs to appeal," wrote Litman. "Cannon's opinion acknowledges that Rule 41 is reserved for exceptional circumstances and must be exercised w/ caution and restraint. Then she storms ahead like a bull in a china shop b/c it's possible that Trump may turn out to have some undefined interest down the line."
The ruling, continued Litman, "never comes close to holding there's an executive privilege interest here. But b/c of the gossamer possibility that there may be one down the line, she orders the gov to stop its review and orders a Special Master to review all docs under completely undefined legal standards." He added that "it reads as if she's never handled criminal cases before."
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"It's ironic but it's a total cluster of the doctrines and judicial moves conservatives say they hate about liberals: 'inherent supervisory authority,' sloppy standing analysis, huge remedy barely connected with the violation, holding X b/c can't be sure 'not X,'" Litman concluded.
The ruling effectively puts on hold the Justice Department's criminal investigation until a special master concludes the review — although Cannon also noted in the decision that the intelligence agencies can still access the documents as part of their probe into whether any classified information was compromised.