Trump’s Special Master Motion No Real Remedy; Too Late and No Solution to Underlying Bias Problem
Trump’s Motion Unlikely To be Granted
WASHINGTON, D.C. (August 23, 2022) -The motion filed by Donald Trump‘s legal team, seeking an order appointing a special master and a halt to any further review of the document seized, is quite unlikely to be granted.
And, even if granted, it would provide no real remedy for the two major problems the former president is facing, says public interest law professor John Banzhaf.
Banzhaf played a role in obtaining special prosecutors to conduct impartial investigations of former president Richard Nixon, and whose formal complaint triggered the parallel criminal investigation of Trump and his associates with a special grand jury in Georgia.
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Once the search of Mar-a-Lago was concluded, a Department of Justice [DoJ] “taint team” (or “filter team”) began to review the documents to see if any were privileged and/or not within the scope of the search warrant.
An example were several passports which, once identified, were promptly returned to Trump.
But since DoJ has had the documents for some 14 days, it is quite likely that the team's review has now largely been concluded, and the documents turned over to prosecutors for their review.
This is especially true since DoJ lawyers probably anticipated that Trump would file this type of motion, or a similar one to seek to delay the review, so they would employ however many lawyers it would take to complete the review very promptly.
Indeed, says Banzhaf, the number of documents which would have to be examined is far less than might typically be taken pursuant to other search warrants.
Moreover, by the time that DoJ lawyers file a pleading responsive to this new motion, oral argument can be held, and the judge reaches a decision, even more time will have gone by - so the "bell" of prosecutors seeing the documents cannot then be un-rung.
Unlike similar reviews where files from a lawyer's office are taken, and are therefore presumptively protected by attorney-client privilege, Trump and his home are not a law office, so there is no similar presumption to be carefully considered before it can be overcome.
Similarly, it's hard to see how Trump can assert an executive privilege when the current president has waived it, nor how there can be any viable claim of privilege in documents - including those which were classified.
Those involving national security, and those he was required to turn over upon leaving office - which he was not even legally permitted to possess, regardless of Trump's claim to have classified many of them.
So, even if a special master were appointed, and/or a largely unredacted affidavit were to be made public, neither or even both would get to heart of the major problem of which the motion bitterly complains.
A politically trained investigation (including the search) being conducted by someone who is obviously biased because of a clear and irrefutable conflict of interest, argues Banzhaf.
Neither of both would begin to address the question of whether an investigation headed by someone without a clear conflict of interest, and a bias against his boss' major political rival and presumed challenger for reelection, would have used a search warrant.
Rather than, for example, first issuing another more specific subpoena, continuing to negotiate for voluntary release longer, etc. - which are matters of judgment rather than mere questions of law and legal sufficiency.
But even assuming that the affidavit did meet the bare legal requirements for the issuance of a search warrant, as a judge has already ruled, its release will not even begin to answer whether an impartial prosecutor would have.
For example, permitted Trump's attorneys to witness the search in order to guard against speculation that incriminating evidence was being planted, to raise timely objections if any materials being seized might be protected by attorney-client or executive privilege, etc.
The release of the affidavit probably also would not permit even skilled prosecutors and law professors to resolve issues such as whether the resulting warrant was worded more broadly than probably necessary and/or granted access to more areas of the estate than reasonably required.
A Danger To Democracy
Finally, regardless of what the warrant might or might not say, it will provide no assurance, to impartial legal observers - much less to many Republican members of Congress and Trump supporters - whether judgment calls.
What further witnesses should be required to testify, whether Trump himself should be subpoenaed to appear before a grand jury and, most importantly, whether this former president under all the circumstance should be indicted and tried, even if the evidence finally developed might be legally sufficient.
After all, AG Merritt Garland serves at the pleasure of the current president and is required by law to obey his orders.
Biden has said that he plans to run again, and most commentators now believe that Trump represents his most likely opponent and the greatest threat to the election of any Democratic candidate. It has also been widely reported that President Joe Biden has said that Trump is "a danger to democracy" and "should be prosecuted."
So it appears undeniable that Garland is in an unavoidable conflict of interest situation: if Biden ordered or even just hinted that Garland should take some action which could reduce Trump's chances for reelection.
The AG would have to decide whether to follow that request, or to substitute his own judgment as to what would be just, fair, and most in the public interest under the circumstance in making such a judgment call.
Even if Biden never sought to interfere in this matter, Garland certainly knows that he would lose his job if Trump were elected, so he also has a clear conflict of interest between leaning in making judgment calls - i.e., where two or more actions might both be legally valid - against the former president, and simply exercising his best judgment.
The importance and broad sweep of this basic legal principle is illustrated by a recent example. Fani Willis, the DA of Fulton County, Georgia, is currently conducting a criminal investigation of Trump and others as the result of a formal complaint by Prof Banzhaf that Trump violated state laws by attempting to interfere with the most recent presidential election.
But when she notified a Republican candidate for lieutenant governor that he was a subject of the investigation, a judge ruled that she was completely disqualified from prosecuting him. The reason - she had headlined a fund-raiser for his opponent, a fellow Democrat.
So even though her own position was in no way threatened by this potential defendant - and in supporting a candidate of her own party for a different office she did nothing more than most political figures do routinely - the judge found that there was a sufficient conflict of interest to prevent her from proceeding any further.
A Simpler Solution
Fortunately, there is a simpler solution for Garland; one which not only is possible, but is actually required by law.
The law requires that he appoint an independent special counsel to conduct investigations which "would present a conflict of interest for the Department or other extraordinary circumstances; and that under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter."
Even belatedly appointing an independent special counsel now would go a long way towards dispelling growing distrust over the incident because he would have the power to return all or some of the documents to Trump.
If appropriate, to set up a fair procedure to see if any are or were protected by attorney-client or executive privilege, and, most importantly, to make an impartial judgment, free of conflict of interest, as to whether any documents uncovered by the search would - as a matter of judgment as well as strictly legal requirements - warrant seeking an indictment against Trump.
Moreover, suggests the law professor, appointing an independent special counsel now would help to insure far broader support and less objection to any further actions taken as part of the criminal investigation, including but not limited to any charges, offers to plea bargain, etc. which might result from the search or otherwise.
