The editors of the Washington Post call for a more restricted ruling on a “special master” to review the materials seized by the FBI from President Trump’s Mar-A-Lago residence. I have a problem with this section of their editorial:
And if a piddling portion of materials are covered by attorney-client privilege, there’s no need to halt the investigation as a whole to identify them.
That’s exactly the reason a special master may be necessary. The FBI can’t be allowed to go on a fishing expedition in materials that are protected by attorney-client privilege. It doesn’t make any difference whether only .01% of the documents are subject to that privilege. Which .01%?
However, I don’t see anything wrong with their proposal with one proviso:
The much-preferred alternative is for Judge Cannon to approve prosecutors’ proposal to alter her ruling: The FBI would be permitted to keep reviewing only the more than 100 classified documents it seized, and the special master, in turn, would be barred from examining them.
The proviso is this. As they say on Jeopardy I’ll put it in the form of a question. Is it possible for a document to be simultaneously classified and subject to attorney-client privilege? If so the ruling could be change to allow the special master to review the classified documents first while prohibiting the FBI from reviewing the non-classified documents.
An additional complication would arise if a) a document were classified AND subject to attorney-client privilege and b) the FBI had already reviewed it or c) the FBI had already reviewed some unclassified documents. That would suggest that the ruling be altered to cover first the classified documents, then those already reviewed by the FBI whether classified or not, then the balance. The risk is that anything the FBI has already reviewed or materials derived from them might be barred from being used in a future prosecution.
I don’t really have a dog in this fight, but my general principle is that defendants and those under investigation ought to win any close calls in questions like this, even if that person is Trump.
Dave Schuler: That’s exactly the reason a special master may be necessary.
That’s why the FBI uses a taint team. If they improperly use documents at trial that should have been excluded, that can be brought up at that time. Now, everyone wants a special master.
Dave Schuler: Is it possible for a document to be simultaneously classified and subject to attorney-client privilege?
That would be very unlikely. Why would Trump’s personal attorney-client communications be classified? Communications with the White House counsel may be protected by executive privilege, but that has a mixed records in the appeals court; and they would remain government documents, in any case.
Meanwhile, Trump’s attorney certified that they had returned “any and all” documents marked classified. That certification made in response to a court order was false.
Dave Schuler: The risk is that anything the FBI has already reviewed or materials derived from them might be barred from being used in a future prosecution.
There are other sanctions that the judge might consider short of barring prosecution. The government could even bring in an untainted team, if necessary.
Andy: I don’t really have a dog in this fight, but my general principle is that defendants and those under investigation ought to win any close calls in questions like this, even if that person is Trump.
The corollary to this is that Trump shouldn’t be given special privileges, privileges which permeate the recent court order.
Mike Davis, who has worked extensively with Grassly and Gorsche has been all over various media sites with the following analysis regarding the legal scope of the PRA:
1. The President has absolute constitutional power, as commander in chief, to declassify anything. See Navy v. Egan.
2. He has sole statutory power, under Presidential Records Act, to take his records–even classified–when he leaves office. See Clinton sock drawer case.
3. Legally impossible for Trump to obstruct justice, as the Biden DOJ didn’t have power to investigate non-crimes. See OLC memo on Mueller probe.
4. Political hit on Trump, to get back his declassified Crossfire Hurricane records. Damning for Obama, Biden, Hillary, FBI, & intel.
Jan: 1. The President has absolute constitutional power, as commander in chief, to declassify anything.
You are actually arguing Trump declassified documents concerning human intelligence sources. In any case, there is no evidence Trump declassified the documents at issue.
Jan: 2. He has sole statutory power, under Presidential Records Act, to take his records–even classified–when he leaves office. See Clinton sock drawer case.
That is not correct. The law requires that he turn over any presidential records to the National Archives. The president has wide but not unlimited discretion as to what constitutes a presidential record; however, information about human intelligence sources developed by government employees does not constitute a private record by any stretch. The Clinton case involved his private discussions with a historian, reasonably considered a private record.
Jan: 3. Legally impossible for Trump to obstruct justice, as the Biden DOJ didn’t have power to investigate non-crimes.
Trump was subpoenaed for “any and all” documents marked classified. His attorney certified that all such records had been returned. That certification was false, and constitutes probable cause of obstruction.
Jan: 4. Political hit on Trump, to get back his declassified Crossfire Hurricane records. Damning for Obama, Biden, Hillary, FBI, & intel.
Trump had ample opportunity to disclose those documents while he was president, and if he still had possession of them, even after he left office. But he didn’t. It’s doubtful those are the records at issue.
Wonder if the Post will file an amicus motion in this case? Or is this all just keep those clicks coming in.
“4. Political hit on Trump, to get back his declassified Crossfire Hurricane records. Damning for Obama, Biden, Hillary, FBI, & intel.”
He is a billionaire and he cant afford a copying machine? A scanner? He had these and he wouldn’t release them to cause trouble for your list of people? Hard to take these claims seriously.
“See Clinton sock drawer case.”
I am going to agree with jan here. Any private discussion Trump had with an historian should be his to keep.
Steve
steve: He is a billionaire and he cant afford a copying machine?
He couldn’t figure out how to turn it on.
Grab it by the pussy.
Steve
Also, looks like Durham is giving up. Twice as long as the Comet investigation and no conspiracies, not much of anything. Sigh. I will miss the breathless announcements here that Durham was close to proving something.
Steve