Now that U.S. District Judge Aileen M. Cannon has ruled that a special master will be appointed to determine if any of the classified documents former president Donald Trump was hoarding at his Mar-a-Lago resort are protected by attorney-client or executive privilege, the Justice Department has until Friday to appeal that ruling.
But it may not be enough to merely appeal to a higher court, according to three legal experts who say Attorney General Merrick Garland should move to have Judge Cannon removed from the case completely since she clearly has a conflict of interest.
On MSNBC Wednesday evening, Andrew Weissmann, who served as general counsel for the FBI and was also a prosecutor on Robert Mueller’s team, said the DOJ has a clear case to make:
“This is like a thief taking documents then saying, ‘Judge, I want them back.’ This is a complete farce. And to have somebody like Laurence Tribe and Neal Katyal have to address this, as if it’s a serious argument, just tells you the depths that we are in. And just to be very serious for a moment the notion that in the documents there are state secrets involving nuclear capabilities — it means that there is present harm to national security. Our allies and countries that want to quietly cooperate with us are looking at all of this and making decisions about whether they should continue to do so if we cannot keep secrets. That is how we protect this country. It is how we thwart terrorist attacks. It is how we conduct important, lifesaving undercover operations.”
Neil Katyal, former acting Solicitor General in the Obama administration, then joined the debate:
“Every day, every week, we learn a new fact about just how bad Trump’s behavior was. Now, it is nuclear secrets. That also underscores just how bad the decision was by this judge in Florida. So, appointing a special master is one thing, but stopping a criminal investigation of this magnitude in its tracks because you think, as a federal judge, that some documents might be privileged. That is insane. That is a bazooka when one needs, at most, a scalpel. And if you have lost Bill Barr, and Bill Barr is — God. That is….”
Katyal added:
“She pleaded herself out of her own court. Because she planted remedies to the special master via the Presidential Records Act. And she has a footnote on this, Footnote 16, which says basically, the Presidential Records Act says that you can only bring these cases in Washington D.C. and only Washington D.C. judges can oversee them. So, that maybe that’s what the Justice Department, I think, should do here. Get this case before judges who are experts on presidential records and executive privilege and the like.”
