Washington, DC – A United States judge’s decision to temporarily halt the government’s review of documents seized from Donald Trump’s home until they are vetted by an objective third party has sparked bewilderment among legal experts.
Judge Aileen Cannon on Monday ordered the appointment of a so-called “special master” to assess the documents — collected by the FBI at the former president’s Mar-a-Lago estate last month — for content that falls under attorney-client or executive privilege.
While many legal experts argue the ruling is unwarranted, they say it will only slow the Justice Department’s probe into Trump’s possible mishandling of classified materials — not stop it.
Here, Al Jazeera looks at where things stand in the investigation and what the recent ruling means for the case:
What exactly is a ‘special master’?
A special master is typically someone with legal and/or technical expertise who can assist a judge in certain aspects of a case. In criminal cases, a special master is occasionally appointed as a neutral arbiter when privilege issues arise.
Trump’s team had requested a special master to vet the documents as part of an ongoing lawsuit against the Justice Department over its investigation of the former president.
What does privilege refer to?
Certain information, including communication between suspects and their lawyers, is considered privileged, meaning the government cannot see it.
In the Trump case, the special master will assess the files taken from Mar-a-Lago for anything related to attorney-client privilege, as well as executive privilege.
What is executive privilege?
Executive privilege is a legal concept that protects certain communication within the executive branch from going public, explained Michael Meltsner, a law professor at Northeastern University in Boston.
“Under US law, when the president speaks to somebody and asks their advice, that is a privilege that can protect the conversation from [being divulged],” Meltsner said. “It’s not in the Constitution. It’s been created by the courts. But it’s never been – to my knowledge – applied to a former president.”
In this situation, the special master needs to have a high-security clearance to handle secret documents and legal training to understand executive privilege.
Court documents show the US authorities retrieved dozens of classified government documents, some marked top secret, from Trump’s home despite him leaving the White House in early 2021.
Why is the judge being criticised?
Numerous lawyers, professors and former prosecutors have criticised Judge Cannon, who was appointed by Trump shortly before he left office, for an order they say has no legal basis.
Meltsner, a veteran civil rights advocate who recently published a novel about the Civil Rights era titled Mosaic, told Al Jazeera that courts rarely interfere with criminal investigations, which he said makes Cannon’s decision to halt the document review “unusual”.
“She is leaning over backwards to treat Trump the way nobody else has been treated,” Meltsner said. “In US law and practice, we don’t interfere lightly with a criminal investigation. A criminal investigation by its very nature has to be private.”
He added that court interference in criminal probes risks compromising vulnerable witnesses and making documents that could be used by defendants public. The Justice Department earlier said it had identified and avoided materials that could be considered privileged.
So what comes next in the case?
Cannon has ordered lawyers for the government and for Trump to submit a list of nominees for the post of special master by Friday.
The Justice Department can still appeal her order to a higher court, a potential move that Meltsner said would likely succeed but also carries risks.
“The opinion by this judge is totally inconsistent with the law. It would not surprise me if an appellate court – if it ever gets the issue – would reverse her very quickly,” he said.
“But appeals may take time, appeals may distract, and appeals may even find similar Trump-appointed judges in the Court of Appeals. And if the Court of Appeals rules against Trump, then they’ll go to the Supreme Court, and who knows what happens there.”
What about the Justice Department investigation?
While the judge has temporarily blocked the Justice Department from reviewing the documents taken from Mar-a-Lago, investigators can still interview witnesses and pursue other leads in the criminal probe.
Meltsner described Cannon’s orders as a “speed bump” in the investigation.
“The government can still indict people,” he said. “Nothing this judge can or has done can stop the government from doing so if they want to. But that’s another tactical decision that the government will have to make down the road.”
Will Trump face charges?
Only the US Justice Department — and likely Attorney General Merrick Garland, who has said he personally approved the August 8 search at Mar-a-Lago — can answer that.
“On the basis of the public record, it would certainly seem reasonable to charge Trump and/or his people with various offences regarding taking these documents and keeping these documents and refusing to return these documents,” Meltsner said.
“Whether they will do so or not is another matter. You can say that the elephant in the room is whether the prosecutors will think about the politics of this.”
What would the process entail?
To press charges, the Justice Department would have to present its accusations to a grand jury to approve a formal indictment.
Trump and his Republican allies have rallied against the investigation and dismissed it without evidence as a political witch hunt. The former president has suggested that he is interested in another run for the White House in 2024, but he has not announced his candidacy.
Garland was appointed by President Joe Biden, but the White House says it does not interfere in Justice Department-led investigations.
