Justice Department and Trump’s Lawyers Are Headed for a Legal War Over Presidential Power

Photo Illustration by Erin O'Flynn/The Daily Beast/Getty
Photo Illustration by Erin O'Flynn/The Daily Beast/Getty

The joint filing by the Department of Justice and Donald Trump’s legal team ordered by Trump-appointed Judge Aileen Cannon reveals an expanding chasm between the two sides that appears to make further legal battles inevitable. After Cannon required both sides to set forth substantive points upon which they can agree or disagree regarding Cannon’s decision to utilize a special master to review documents seized in the Mar-A-Lago search warrant, the DOJ and Trump’s lawyers submitted a six-page filing. It was short because the parties disagree on everything, from proposed candidates to be the special master, to the scope of that person’s authority, to who should even pay for the special master.

The DOJ’s proposed candidates are two retired judges: Barbara Jones, formerly a federal district court judge in the Southern District of New York who recently served a special master in the review of documents seized in search warrants executed upon the offices of Trump lawyers Rudy Giuliani and Michael Cohen; and Thomas Griffith, formerly a federal court of appeals judge in Washington, D.C.

Trump’s lawyers proposed: Raymond Dearie, formerly the chief judge of the federal district court in the Eastern District of New York, with experience on the Foreign Intelligence Surveillance Court (FISA court); and Paul Huck who had worked with one Trump’s current lawyers for then-Republican Florida Governor Charlie Crist. Huck is married to Judge Barbara Lagoa, a federal court of appeals judge on the 11th Circuit—the same court of appeals that will hear any appeal in this case.

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Of these candidates, Huck looks completely compromised by conflicts of interest, given that he used to work with Trump’s current lawyer and his wife sits on the same appeals court that might hear appeals in the present case. Jones, Griffith and Dearie are all reasonable choices and the parties have until Sept. 12 to give their positions on each other’s choices. If they are unable to agree, then the decision will be completely in the hands of Judge Cannon—something that the DOJ may want to avoid given that she might select Huck.

Both sides also disagree on how much time the special master should have to complete their review. The DOJ wants it to be done by Oct. 17, but Trump’s lawyers want three months for the review. Delay typically favors the defense in criminal investigations. And in this case, if Cannon grants the three months, it would freeze DOJ’s investigations until after the midterms elections since, she has issued a stay barring DOJ and FBI investigators from reviewing any of the Mar-A-Lago documents until the special master completes a review.

The workflow process is also disputed by the parties with Trump’s lawyers wanting the right to privately communicate with the special master to the exclusion of DOJ, and send categorization of documents they wish to have reviewed directly without the DOJ seeing them. DOJ counters that its ability to see the categories of documents—typically listed in logs that identify the documents without revealing their contents—would lessen the special master’s workload because DOJ might agree to some categories which would lessen the need for a high volume of ex parte communications, and thereby improve the “perceived fairness and transparency of the process.” DOJ also wants Trump and his team to pay for the costs of the special master since Trump is the one who wants one. In contrast, the Trump team unsurprisingly wants to go Dutch on the costs.

But the most important disagreement between the two parties is the scope of the special master’s work. The DOJ argues that the special master: (1) should not review documents with classification matters; (2) should not adjudicate claims of Executive Privilege but rather submit those documents directly to the National Archives and Records Administration (NARA); and, (3) should consult with NARA o the determination of Presidential records. Trump’s lawyers disagree with all this, claiming that the DOJ wrongly believes classification of documents is for perpetuity, and that Trump’s interest in any presidential record means he cannot be denied control and access over them.

The breadth and depth of these disagreements between DOJ and Trump’s lawyers appear to make further legal battles and appeals inevitable. In particular, the disagreement over the scope of the special master’s authority goes to the heart of what is at stake in the special master appointment, because it serves as a proxy war over Trump’s view of an expansive presidential power that can stand against the rest of the Executive Branch. Ironically, as England goes through its ancient process of installing a new monarch, this dispute in a Florida courtroom is really a battle over whether American Presidents are public servants or emperors. In 1776, America went to war over that question and won. But the principle demands defending it again today, and everyday.

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