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DOJ appealing the Trump special master order would make a bad situation worse

Bill Barr thinks U.S. District Judge Aileen Cannon’s opinion was so terrible it should be appealed. He's half right.
Photo diptych of Merrick Garland and Donald Trump
Despite profound flaws in the court’s order, an appeal may not be the wisest course for Merrick Garland's Justice Department.MSNBC / Getty Images

UPDATE (Sept. 8, 2022, 4:40 p.m. ET): On Thursday, the DOJ asked a Florida U.S. District Court to stay part of Judge Cannon's special master order preventing the review of seized classified documents that could be used for criminal investigative purposes. DOJ also filed a separate notice indicating its intent to appeal the order.

The order to appoint a special master to review material seized in the search of Mar-a-Lago is so bad that even former President Donald’s Trump’s attorney general thinks it should be appealed.

On Tuesday, William Barr said in a Fox News interview that U.S. District Judge Aileen Cannon’s opinion was “wrong” and that “the government should appeal it.” And while there is undoubtedly a strong basis for reversal by a higher court, filing an appeal might not be the Justice Department’s best course of action.

The court granted Trump’s motion to appoint a special master to block the government from reviewing any documents that might be covered by attorney-client privilege.

Cannon’s opinion is flawed in multiple, demonstrable ways. The court granted Trump’s motion to appoint a special master to block the government from reviewing any documents that might be covered by attorney-client privilege or, remarkably, executive privilege. It is unusual to appoint a special master in a case involving a non-attorney to review documents for attorney-client privilege, but it is nonsensical to appoint a special master to review material that might be protected by executive privilege. Because it is the Justice Department — part of the executive branch — that wants to review the material. Executive privilege is used to prevent disclosure to third parties, like Congress, not to the executive branch itself.

In addition, the court granted injunctive relief, ordering the government to stop using the seized material in its criminal investigation for now. This extraordinary relief was granted despite Trump’s failure to make a persuasive case that he had a substantial likelihood of success on the merits of his case, that he would suffer irreparable harm without relief or that an injunction would cause no harm to the public interest, all factors that normally must be established to obtain an injunction.

Not only is the injunction legally unsupportable; it is also unworkable. Although the order said the government may continue to assess the damage to national security caused by the unauthorized storage of the documents at a country club, the prohibition on using the documents in a criminal investigation makes that difficult. The two tasks are inextricably intertwined. Presumably, to assess the damage, the government needs to know who was coming and going at Mar-a-Lago, which requires witness interviews and review of security video, some of the same evidence that would be used in any criminal case. Does that constitute use of the materials for the criminal investigation? And are all of the agents and prosecutors who have reviewed the seized material precluded from interviewing witnesses, lest they spread the taint of documents they cannot “unsee”?

And yet, despite those profound flaws in the court’s order, an appeal may not be the wisest course for the Justice Department. One concern is the delay an appeal would cause for the criminal investigation. Cases do not improve with age. It would likely take months for the case to be briefed, argued and decided. During that time, memories might fade, evidence might become stale, and opportunities to identify witnesses might disappear. In addition, the more time between now and a trial increases the risk of witness intimidation.

If Trump can stall long enough, it may be impossible for the Justice Department to finish the case before the end of the current administration.

And in this case, the Justice Department is racing the clock. If Trump can stall long enough, it might be impossible for it to finish the case before the end of the current administration. Prosecutors would need to complete the investigation, obtain an indictment, litigate the inevitable barrage of motions that Trump will file to dismiss the case and conduct a trial and sentencing, all before January 2025, when a new president could take office and shut down the investigation or grant a pardon. Any additional delay could help Trump.

Another concern is institutional. Is there a risk that an appeal could actually create bad law? The 11th U.S. Circuit Court of Appeals, which would hear the appeal of this case, is made up mostly of Trump appointees. Would they tend to view the case favorably for the former president and affirm Judge Cannon’s opinion? Then the government would be even worse off. Instead of a nonbinding lower court opinion, the result would be an appellate court decision that is binding on all federal district courts in Florida, as well as Alabama and Georgia. The 11th Circuit would not be the venue of choice for these issues.

So instead of appealing, the Justice Department might want to pursue a different course. Cannon has directed the parties to submit a list of proposed special master candidates by Friday, as well as “a detailed proposed order of appointment” outlining “the special master’s duties and limitations” and the schedule for review. Based on their submissions, the judge will “expeditiously” decide the “exact details and mechanics of this review process.”

That phrasing provides an opportunity for the Justice Department to propose language that could limit the scope of the court’s order. For example, the government could suggest limiting the special master’s review for executive privilege to a small subset of documents, such as communications from White House staff members to the former president. Information created by agencies within the intelligence community about such matters as nuclear capabilities, human intelligence sources or surveillance authorized by the Foreign Intelligence Surveillance Court would remain unshielded from the government. This would allow the Justice Department to resume its use of seized materials containing national defense information in its criminal investigation while preserving its ability to litigate whether executive privilege covers any of these filtered documents. If the court’s final order on the mechanics of the review remains untenable, the Justice Department could assess then whether an appeal is necessary.

Judge Cannon’s order is a mess. But the Justice Department must avoid making it worse.