Will Trump WIN The Battle With A Special Master?!

Trump has requested a special master to review the documents obtained by the DOJ from Mar A Lago, and determine if they took any privileged information. Judge Cannon has granted this request, and a review is pending. No one knows how long this review will take, but for now the DOJ’s criminal investigation is delayed.

Once the review is completed, we can almost be sure that Trump will claim that some of the materials are privileged info, and are therefore barred from being used as evidence.

Then we will be in a battle between Trump and the DOJ on whether or not Trump has the right to claim privilege.

It’s not clear whether Trump is arguing executive privilege or attorney-client privilege or both.

If attorney client privilege:

Well, we already know the FBI has admitted to taking attorney client info, and lots of it. The special master could determine MORE was taken than what was determined by the FBI. This could lead to a dispute.

There is DC court of appeals precedent that could be used to shut the argument down by the DOJ. They would likely argue that the privilege is waived on information crucial to the outcome of the criminal investigation.

If executive privilege:

Executive privilege is a different story. Up until this point, there has been much dispute on whether or not he retains this power as a former president. Judge Cannon has legitimized Trump’s claim to executive privilege by appointing a special master, but this could result in a long drawn out dispute.

If the special master determines that executive privileged info was taken from Mar A Lago, the DOJ will likely challenge this. Trump will have to argue that the executive privilege of a former president supersedes the current president’s ability to waive it.

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Will He Succeed?!

This is not the first time Trump has asserted executive privilege. The first was when the Jan 6 committee requested Trump records from the National Archives.

SCOTUS rejected Trump’s claims of executive privilege.

The second was when the National Archives informed Trump’s lawyers that they wanted to turn over the 15 boxes of  documents to the FBI.

Once again, Trump’s claims of executive privilege was rejected/ignored.

But whether or not a current president can waive the executive privilege of a former is still to be determined. Even in the Scotus ruling where the Supreme Court shut down trumps claim of executive privilege over January 6, they never actually addressed this and admitted there is no precedent.

SCOTUS upheld the appeals courts decision, claiming that Trump’s assertion of executive privilege would have failed regardless, even if Trump was the incumbent president. So there was no need to address the issue. Therefore, we still don’t know if a current president can waive a former presidents executive privilege.

But let’s think. If the current president can waive the executive privilege of a former, then every single time there is a transfer of power the new administration would go after the former. Future Presidents would then become reluctant to discuss anything with advisors, knowing that as soon as they leave office they will come under scrutiny.

A terrible precedent is set, and they’d be doing this, knowing that eventually the shoe will be on the other foot.

…Unless of course, they never intend to give up power and don’t care about precedent.