Ex-President Trump is defending himself against the US Attorney’s Office. An intermediary is to examine the documents confiscated in Mar-a-Lago. According to Trump, they are so secret that they cannot be used. Even conservative lawyers consider that highly unlikely.
It’s probably a game for time. for a long time. There is no other way of explaining Donald Trump’s successful efforts to install a braking “Special Master”, an intermediary, between the public prosecutor and him. And this despite the fact that even conservative lawyers consider the justification for this to be very shaky. If it stays that way, the neutral intermediary should determine which documents from the raid in Mar-a-Lago may be used against the ex-president and whether they may even have to be returned to him. But it is not said that it will happen that way.
A little flashback: A month ago, investigators went to Mar-a-Lago, spent hours turning Trump’s residence upside down and hauled out crates of documents. In the state of Florida, Trump illegally stored state secret documents from his time in the White House. First, the investigators wanted to know what it was, second, to what extent Trump had committed a crime, and third, transfer the material to the National Archives. The outgoing President would have been obliged to do this.
According to reports, Trump wants to go back to the White House. He probably does not want to have this possibility legally blocked by a conviction. This is another reason why he should try to delay the investigation as much as possible. Somewhat surprisingly, Trump’s request was approved on Monday. Aileen Cannon was the only federal judge at the court hearing the matter. Trump had put her into office in the last few meters of his presidency.
Cannon is a member of the Federalist Society, the most influential conservative legal association in the United States. She has installed rows and rows of politically acceptable lawyers, most recently under Trump. For example, the Supreme Court justices who overturned abortion laws had all been recommended to him by the Federalist Society.
The Department of Justice, the FBI, the National Archives, the secret services and Trump are all fighting over who can use which of these documents and for what purpose. Legal experts doubt that the court decision will stand in its first form.
In other cases, a “Special Master” usually determines whether communications between attorney and client are confidential and may be used. But Trump also invokes executive privilege, the unconditional confidentiality of communications between the president and his advisers. There is no fundamental regulation as to whether this protection also applies after the end of the term of office. In a case against ex-President Richard Nixon, none was granted. But a “Special Master” was never responsible for it.
Otherwise, the decision as to whether executive privilege applies to a document is made by the incumbent US President, that would be Joe Biden. According to the court decision, the future “Special Master” should take over this task first. The scenario would enable Trump to insist on the confidentiality of documents, even though he is no longer in office. Then he would still have authority over what the Justice Department may use, even though by law those documents belong to the state. In other words: Trump would take the scepter out of Biden’s hand.
What happens next depends on a number of factors. First, whether Justice Department prosecutors will appeal. Because even according to the assessment of several conservative lawyers who appeared on Fox News, Cannon’s order is unlikely to be upheld. That includes Trump’s former Attorney General, William Barr. He said he couldn’t think of any reason why the documents “should have been removed from government hands if they were classified.” As a private individual, Trump is not entitled to executive privilege.
If an appeal fails, or if the Justice Department decides not to do so, Trump’s attorneys will have to agree on a “Special Master.” This can take months because the lawyer to be appointed must be a specialist and both sides must be able to live with him. Trump celebrated the decision and let his supporters know in a call for donations that he “always does everything as prescribed. Patriots know that.” However, according to a large number of US media, this is not true. According to one report, he even flushed some documents down the toilet in the White House and clogged them with them.
Once deployed, the “Special Master” could extend the exam indefinitely. The judge did not set a deadline. If the examiner interprets the executive privilege as generously as Trump’s lawyers, this could deprive the investigators of court-proof evidence.
The judge’s order may cause a great deal of confusion: According to this, the secret services are allowed to examine the documents, but investigators and prosecutors are not. But the FBI often acts as both a secret service and a criminal investigation department, and the boundaries are fluid. If the arrangement persists, it potentially brings everything related to it to a standstill.
The investigation is not only about what the FBI found, but also what it didn’t find: In addition to the thousands of pages of documents Trump had in his possession, there were several empty files that should have contained secret documents and those that who should have gone back to the military. Where are they? If Trump destroyed them, and if he were convicted for doing so, he would no longer be allowed to hold public office. Running again for the presidency would be impossible.
Even without the missing documents and despite the “Special Master”, things could get uncomfortable for Trump. For example, if the intermediary decides differently after reviewing the documents than the ex-president might have hoped: that the authorities may use everything for their investigations against him.
