On Thursday, U.S. District Judge Aileen Cannon may decide to appoint a special master in connection with the August 8 search of Mar-a-Lago. Previously she indicated a “preliminary intent” to appoint one. Still, at the scheduled hearing, she may delay her decision, press ahead with her earlier inclination to appoint a special master, or defer the decision. One factor in her thinking may be that the FBI has reportedly been through the documents, determining where Trump might have a claim of attorney-client privilege.
Donald Trump’s motion for the appointment of a special master, however, never uses the phrase “attorney-client privilege.” His argument, such as it is, rests on a repeated invocation of “executive privilege.” No one, including Judge Cannon, should be fooled into thinking “executive privilege” provides grounds for appointing a special master to protect a former president’s documents from disclosure to an incumbent administration.
Trump’s motion would have the court regard his legal dispute as centered on the Presidential Records Act, but it is not. The PRA defines certain materials as “presidential records,” establishes public ownership of those records, provides that they transfer into the custody of the national archivist when a president leaves office, and establishes a process through which incumbent presidents can object to the release of their predecessors’ documents. Executive orders issued after the 1978 statute go further and allow former presidents to assert executive privilege. If the incumbent president agrees with his predecessor, the archivist is bound to withhold the contested document. If not, the former president can argue executive privilege to a court. Either way, Trump’s claim that “the Presidential Records Act, … governs all pertinent issues between President Trump, his counsel, and the Government” is simply wrong. His case turns on criminal statutes prohibiting the unlawful retention, concealment, or alteration of federal records.
As he departed the presidency in 2021, Trump brought to his Florida residence more than three dozen boxes of documents that might be protected by federal criminal law. After delay and resistance, Trump returned 15 of those boxes to the National Archives in January. Magistrate Bruce Reinhart, who issued the Mar-a-Lago search warrant this summer, was persuaded, as explained in a subsequent written opinion, that the government had shown probable cause to believe that the search would uncover other unlawfully retained documents still at Mar-a-Lago, many of which bore “confidential,” “secret,” or “top secret” markings. Some of the documents Trump returned to the archivist last January were marked to indicate intelligence information derived from foreign intelligence surveillance (FISA) and clandestine human sources (HUMINT). Some were labeled “‘NOFORN,’ to indicate information that may not be released to foreign governments, foreign nationals, foreign organizations, or non-U.S. citizens without permission of the originator of the information. Government lawyers, in essence, persuaded Reinhart that more such materials were probably still at Mar-a-Lago.
Trump’s belated request for a special master to review the documents seized at Mar-a-Lago, based on what his lawyers call the documents’ privileged or potentially privileged status, now looks superfluous at best.
With regard to protecting the attorney-client relationship, a special master at this point would be redundant. Under a precedent established by the D.C. Circuit Court of Appeals, an attorney-client privilege protects confidential communications between government attorneys and their client agencies where a government lawyer provides legal advice to a government official. Confidential legal deliberations between the president and White House counsel might be protected. However, the publicly released redacted copy of the FBI affidavit used to justify the Mar-a-Lago search shows that the Justice Department had already committed to a special process for protecting such information. Specifically, before law enforcement personnel would review any documents seized from Trump’s Mar-a-Lago office, they would be screened by a “Privilege Review Team” to determine if any were potentially subject to attorney-client privilege. Potentially privileged documents would either be sequestered, reviewed by a court before proceeding further, or disclosed to Trump to determine if he wished to make a privilege claim. Cannon’s order directs the Justice Department to share the results of that review, which has reportedly already taken place.
That leaves Cannon contemplating Trump’s more general claim of executive privilege. Executive privilege law is complex, partly because the phrase includes categories of material to which different rules apply. For example, the term is sometimes used to refer to “state secrets,” that is, information that ought not be disclosed in the interest of national security. State secrets receive the highest level of judicial protection against mandatory disclosure to the public, including their exposure during a judicial proceeding. The Supreme Court said just a few months ago, “Even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.”
Trump’s problem, however, is that his documents are not being exposed to the public. They are being reviewed by the very executive branch responsible for protecting our national security. In a letter sent last May to Trump’s attorneys, acting national archivist Debra Steidel Wall stood on solid ground in refusing to accommodate any further Trump’s foot-dragging with regard to FBI and intelligence agency access to the 15 boxes returned to the archives in January. As Wall wrote, “The Executive Branch here is seeking access to records belonging to, and in the custody of, the Federal Government itself, not only to investigate whether those records were handled in an unlawful manner but also, as the National Security Division [of the Justice Department] explained, “conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps.” A former president cannot plausibly claim executive privilege as a basis for impeding an incumbent president from performing the president’s central duty.
If anything, the classified status of information in any of the boxes Trump kept at Mar-a-Lago until the FBI search only magnifies Trump’s legal risk. Should the Justice Department—or a special master—determine that some documents withheld by Trump fall into the “state secrets” category of executive privilege, it would be hard to deny they contain “information relevant to national defense.” Under the Espionage Act, anyone possessing “information relating to the national defense” who “fails to deliver it on demand to [an] officer or employee of the United States entitled to receive it” is guilty of a felony punishable by up to ten years’ imprisonment. As the former Justice Department official Katie Kedian explained in the Lawfare blog, courts have determined that information relates to the national defense if it is “both closely held and potentially damaging to the United States or useful to an enemy of the United States if disclosed.” In most prosecutions, all the government need show is that the information was classified. Trump released a statement on August 12 claiming that, as president, he had a “standing order … that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.” This is all but laughable. Numerous Trump administration officials, including former White House chiefs of staff, have disputed the existence and plausibility of any such order.
There are other categories of executive privilege. Confidential communications with the president can be privileged almost without regard to topic, so long as they relate to the president’s duties. This is the presidential communications privilege that Richard Nixon made famous. A “deliberative privilege” is broader still. It protects executive branch documents held by any government agency that reflect deliberations that were part of reaching a government decision. An example would be a memorandum from, say, the education secretary to the director of the White House Domestic Policy Council laying out the pros and cons of various approaches to student loan forgiveness.
But neither presidential communications privilege nor the more general deliberative privilege is absolute. They are, to use the legal term, “qualified,” which means subject to a judge’s balancing of the executive’s general expectation of confidentiality against what may be the more compelling interests of other branches in obtaining certain information. Courts can order disclosure of “presumptively privileged” presidential communications where the needs of the legislative or judicial branch outweigh a president’s generalized interest in secrecy. In United States v. Nixon, concerning the Watergate tapes, the Supreme Court held, “When the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.” Nixon thus had to provide the subpoenaed tapes.
No judge needs a special master to determine whether Trump documents are protected from FBI seizure because of any qualified form of executive privilege. Any such documents, if evidence of a crime, would be categorically accessible to criminal investigators and, if need be, disclosable in a subsequent prosecution. Trump’s general interest in confidentiality would be subordinated to the specific interest of both the executive and the judiciary in upholding the criminal law. Indeed, even concerning attorney-client privilege, the D.C. Circuit has held, “When an executive branch attorney is called before a federal grand jury to give evidence about alleged crimes within the executive branch, reason and experience, duty, and tradition dictate that the attorney shall provide that evidence.”
If Trump were intent on protecting the privileged character of the documents of Mar-a-Lago based on their status as confidential presidential communications, he could have turned them over to the National Archives immediately upon leaving office, which would have guaranteed that no plausibly privileged document would be released until he had been consulted about its potentially privileged status.
Of course, those consultations may have proved unavailing. After all, Trump lost his battle to withhold documents from the January 6 Committee based on presidential communications privilege. The D.C. Circuit reasoned, “President Biden concluded that a claim of executive privilege as to the specific documents at issue here is ‘not in the best interests of the United States,’ given the ‘unique and extraordinary circumstances’ giving rise to the Committee’s request, and Congress’s ‘compelling need’ to investigate ‘an unprecedented effort to obstruct the peaceful transfer of power’ and ‘the most serious attack on the operations of the Federal Government since the Civil War.’” An investigation into a former president’s possibly criminal retention of government records is also “unique and extraordinary.” It is hard to imagine that the same balance of interests that supported the release of records to the committee would not apply equally to those Mar-a-Lago documents relevant to a possible prosecution.
The January 6 Committee will hold more hearings next month. Between those hearings and the ongoing criminal investigations regarding Trump’s handling of government records, Americans will learn much more in the coming days, weeks, and months about Trump’s unprecedented resistance to leaving the presidency. As complex as the legal issues surrounding access to the evidence may be, it remains imperative that the public remain focused on the search for truth. The squabble over a special master is a dilatory sideshow. In the end, each branch of government must play its part in the search for truth unimpeded by Trump’s blurring the lines around government secrecy.
Author: Peter M. Shane