Judy: Former president trump
scored a major legal victory
when a federal judge announced
she would be appointing an
outside legal expert to review
files seized by law enforcement
from mar-a-lago, effectively
halting the justice department's
examination of the documents
until the expert's work is
finished.
Our John yang has more on the
legal implications of the
decision.
John: Judy, in addition to
screening for documents
protected by attorney-client
privilege, judge Aileen cannon
took the unusual step of
ordering the outside expert to
see if any of the materials are
protected by former president
trump's executive privilege.
Barbara Mcquade is a professor
at the university of Michigan
law school and a former federal
prosecutor.
Barbara, thank you for joining
us, especially minutes after you
have finished lecturing, as we
can see from the lecture hall
behind you.
Having a special master screen
these documents, this material,
for executive privilege asserted
by a former president -- is
there any legal precedent for
that?
Prof. Mcquade: Not at all and I
think the order may be
problematic in that it allows
the special master to review for
executive privilege without
defining what that means.
A special master doesn't make
legal decisions, a special
master does sorting work.
You need things to be clearly
defined so the special master
can figure that out.
Is every classified document
created by an executive branch
agency potentially protected by
executive privilege?
I don't think so, but the order
is not clear in that regard.
It is nonsensical to think that
a former president can't assert
executive -- can assert
executive privilege against the
executive branch.
We've seen some courts recognize
a residual privilege by a
president that can be requested
and asserted by the incumbent
president if he agrees, but only
as to third parties like
congress.
The idea that you can assert
executive privilege against the
executive is illogical.
It seems to me the justice
department needs to either
appeal this order, or it may be
able to manage this question by
getting some clarification when
it submits is order defining the
parameters on Friday.
John: You mentioned former
presidents in the past having --
past have asserted executive
privilege by asking the sitting
president to do that.
Is it clear legally that a
former president can assert
executive privilege?
Prof. Mcquade: No, in fact,
there is some theoretical
preservation of privilege.
The purpose is to protect candid
communications and encourage
candid communications between a
president and his closest
advisors while in office, and
the idea that if this could be
spilled out later, people might
check themselves or it might
have a chilling effect on
communications while in office.
But it is the incumbent
president, one unitary
executive, who gets to decide in
the end whether to assert
privilege.
I think Joe Biden would take it
under advisement and decide if
you wanted to protect privilege,
but he already said he was
deferring this to the archivist,
saying she was asserting the
privilege -- waving the
privilege, there is no privilege
of the documents because belong
to the United States government.
I don't see how this piece of
the order can possibly take
affect.
As I said, whether that requires
appeal or clarification in the
order the justice department
submits on Friday, I'm not sure
it is the best vehicle for
getting that.
At the moment, there is a lack
of clarity by what she means --
of what she means by filtering
out executive privilege
materials.
John: In her order, the judge
made much of Mr. Trump's status
as a former president.
But is she in a way creating a
different standard for former
presidents by doing this?
Prof. Mcquade: It's interesting,
I think on the one hand it
suggests she is violating the
rule of law, the idea that no
one is above the law.
I also think the language might
be there to prevent the case
from being cited in other cases.
So if someone in a
garden-variety bank robbery case
in the future said I wanted a
special master, the government
could distinguish by saying look
at this language.
She says this is a unique
situation, I think the phrase
she uses is a league of its own.
It's a unique situation to
require the unique status.
The rule of law does mean that
the president is not above the
rule of law because he has a
special privilege the rest of us
don't have like executive
privilege.
That does not exist for the rest
of us.
The fact that she has treated
him differently doesn't bother
me so much and in some ways I
think it is an effort to
safeguard the opinion from being
used as president in a way that
could -- precedent in a way that
could harm law enforcement in
the future.
John: Some people have talked
about judge shopping.
If the justice department does
appeal, it would go to the 11th
circuit court of appeals, where
six of the active judges are
nominated by trump.
What does this say about the
imprint trump has put on the
federal judiciary?
Prof. Mcquade: His influence is
certainly vast.
One of his probably greatest
achievements was his ability to
get judges on the court,
especially at the circuit level.
I think he worked very hard with
the federalist society to find
people who shared the ideology
that he represented.
I think that's one of the
calculations that the justice
department is going to have to
go through here, who might they
draw on the 11th circuit court
of appeals and could it end up
worse?
One of the things the justice
the permit was to avoid is
making bad law.
Right now it is district court
opinion so it doesn't have that
value, but if they appeal to the
circuit court, it could have be
binding on other courts.
They have to be thinking about
the long game.
John: Barbara still in her
lecture hall at the university
of Michigan.
Thank you very much.
Prof. Mcquade: Thank you.