Criminal Investigation of Trump Halted; Judge Asked Wrong Question, But One Correct One
Trump’s Criminal Investigation Halted
WASHINGTON, D.C. (September 5, 2022) – Federal Judge Aileen Cannon has blocked the criminal investigation related to the seizure of documents from Mar-a-Lago pending the appointment of – and then subsequent review of the documents by – a special master.
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A process likely to take many weeks, and probably months, says public interest law professor John Banzhaf, whose previous filings helped lead to the appointment of special prosecutors to investigate former president Richard Nixon.
And who obtained an order (which was later not carried out) for the appointment of an independent counsel to investigate "Debategate."
Banzhaf notes that most independent legal scholars thought that Donald Trump's legal demand for the appointment of a special master to review the documents had no legal basis, and probably was frivolous.
Therefore, when the judge announced that the key question for her was "where was the harm" in appointing a special master, that was the wrong question since Trump had no right to such an appointment, even if there would be little harm.
For example, if neighbor A decides to plant an apple tree in his backyard, and neighbor B asks a judge to stop the planting until an independent tree expert can decide whether an apple tree is the best type of tree to plant.
The question should not be "where is the harm" in delaying the planting since, even in the absence of any real harm in the delay, A has no legal right to have an independent expert drawn into the situation.
Similarly, if Trump has no valid legal claim to such an appointment, he should not be granted one even if the government cannot convince the judge that it would cause be significant harm.
Many independent legal experts, including a number of lawyers and legal commentators, have reached the same conclusion regarding Trump's demand for a special master.
Executive Privilege
On the other hand, Banzhaf suggests that Judge Cannon was correct in suggesting that President Joe Biden might not be able to waive or otherwise override Trump's executive privilege.
Executive privilege was created to help insure that those who advise a president in confidence will not later have that conversation revealed if a later president thinks it's to his own advantage.
Otherwise, advisors probably would not be candid; e.g., suggesting a course of action which might prove very unpopular.
This is especially true in the current so-called "cancel culture" where lawyers who represents unpopular causes or clients - and/or are not in sync with whatever the current public mood happens to be at the time - can be forced out of their firms, lose many prospective clients, or even be fired, says Banzhaf.
Those advising Biden on sensitive issues (e.g., cancellation of student debt, the border situation, etc.) want to be sure that their frank and probably controversial views will not be revealed if a Republican president elected in 2024 tries to waive Biden's executive privilege.
But questions as to the applicability and/or scope of executive privilege in such situations - where a sitting president who has publicly attacked his predecessor and reportedly said he should be indicted wants to waive his enemy's executive privilege - seem to be largely legal questions for judges, and not for special masters whose abilities, duties, and scope are narrow, the professor suggests.
