Order for special master is, on the whole, reasonable

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First, let me state that I am a retired judge and no fan of former President Donald Trump. He is easily worthy of most every vile thing that has been said about him. Knowledgeable commentators appear to agree that the judicial order of federal Judge Aileen Cannon, appointing a special master to review seized documents is flawed in many respects. But I have read the court order, and while I disagree with parts of it, it seems like a workmanlike product and an honest attempt at a reasonable resolution.

The order cites cases holding that equitable relief to address return of property wrongfully seized by search warrant is well-established. However, Cannon fails to significantly address that the search was preceded by Trump's wrongful failure to comply with subpoena and informal requests to turn over documents that Trump wrongfully retained. Trump's conduct precipitated the search and seizure, and Judge Cannon failed to devote significant discussion to how Trump caused the search and seizure. Trump was responsible for it.

The order requires Trump and the government to submit a "detailed order of appointment … outlining, inter alia, the special master's duties and limitations consistent with this Order … ." But one of the deficits in the order is that she never explains what she means by "executive privilege." That term is used 14 times in the order, but never defined. (She wants the special master to identify material subject to claims of executive privilege.)

The Trump request is that documents improperly seized should be returned to him. That would include personal documents like medical records, tax records and obvious personal things. It would also include attorney/client privileged documents and executive privilege documents (whatever that means). There is a legitimate dispute as to whether executive privilege documents are nonetheless "presidential records" that now belong to the National Archives. The government admits that it has many documents likely subject to attorney/client privilege and has offered to return them. But executive privilege documents are in dispute, both as to what they are and who is entitled to them. Cannon has appropriately reserved ruling on executive privilege document issues.

This order will cause some delay with the Justice Department work. There were approximately 11,000 documents. It should not take more than a few seconds for the special master to look at a document and determine if it relates to attorney-client privilege. Nor should it take more than a few seconds to recognize documents that are truly personal Trump information. Even if there were such personal documents commingled with the presidential records and with the highly classified documents, it may still be relevant for the Justice Department to show that commingling.

It might take a little longer to determine if a document relates to executive privilege. The court needs to define what the term means. But regardless of what it means, most knowledgeable commentators seem to agree that there is no such executive privilege right that would preclude such documents from being considered to be "presidential records" and thus to become property of the National Archives. Even if there were some documents that were especially sensitive, like if Trump was considering nuclear war on XXXX, there are not likely many such documents, and the remedy may be to classify such documents, not to return them to Trump. Trump needs to provide a detailed definition of what he contends constitutes executive privilege, and the judge then needs to consider what Trump contends for and then to issue her own order and provide guidance to the special master as to what executive privilege means for the purpose of the special master duties. The judge's order could leave room for the special master to identify other documents that the special master is unsure about.

Cannon's order may be lacking in some material respects, but on balance it looks like one reasonable way to address what records, if any, should now be returned to Trump. In that respect she has reserved ruling. She could have rejected the Trump motion based on the "unclean hands" doctrine where equity is in issue. Trump clearly had taken documents to his resort, where they never should have been. Trump clearly failed to turn over documents when requested. Trump's representatives clearly lied about whether more documents were still on the premises. Judge Cannon could thus have rejected Trump's equity-based motion. But her resolution was within a range of reasonable resolution under all the public concerns and the concerns about some legitimate established privileges.

Thomas W. Wexler, of Edina, is a retired judge.