A BIG PROBLEM WITH THE SPECIAL MASTER SITUATION
As my friend, astute observer and blog reader Ed Furey pointed out in a comment on the last post, there is a potential Big Problem with the “Loose Cannon Ruling” about a Special Master, one that can lead to years of delay, effectively shutting down the entire investigation, if a solution is not quickly found.
That is that the appointment of a Special Master must be approved by both parties.
First, finding an individual to be Special Master who meets the requirement of having or being able to receive a security clearance high enough to allow them to be read in to examine the documents, who is also knowledgeable on the issues, who also has sufficient professional gravitas for any decision to find sufficient public support to proceed, has its own set of problems. A legal expert over at MSNBC last night said there likely were not 12 people in the country who would meet these qualifications, several of whom he knew and none of them would accept the position if offered in the present circumstance. So that limits the choice pool even more.
But the real problem is that both parties have to agree to the choice. Trump’s representatives can drag this out for years, merely by refusing to accept the proposed nominee, or the next or the next or the next. And any appeal by the DOJ of this delaying action would go to the Eleventh Circuit, where the Trumpscum Jundges would easily be able to find in favor of Trump, allowing him his “right” to a Special Master of his choice.
The result of this is that an appeal on the injunction would be stymied even if granted. The government might be successful in this appeal, and be able to proceed with the investigation already in place, but would be stymied in basing any prosecution stemming from that investigation being based on the documents that have not been vetted by the so-far unapproved Special Master.
The Presidential Records Act (44 U.S.C. Chapter 22), provides some guidance.
As to what exactly is going on here, the dispute is covered in § 2208 of the Act:
Claims of constitutionally based privilege against disclosure
(a)(1) When the Archivist determines under this chapter to make available to the public any Presidential record that has not previously been made available to the public, the Archivist shall—
(A) promptly provide notice of such determination to—
(i) the former President during whose term of office the record was created; and
(ii) the incumbent President; and
(B) make the notice available to the public.
(2) The notice under paragraph (1)—
(A) shall be in writing; and
(B) shall include such information as may be prescribed in regulations issued by the Archivist.
(3)(A) Upon the expiration of the 60-day period (excepting Saturdays, Sundays, and legal public holidays) beginning on the date the Archivist provides notice under paragraph (1)(A), the Archivist shall make available to the public the Presidential record covered by the notice, except any record (or reasonably segregable part of a record) with respect to which the Archivist receives from a former President or the incumbent President notification of a claim of constitutionally based privilege against disclosure under subsection (b).
(B) A former President or the incumbent President may extend the period under subparagraph (A) once for not more than 30 additional days (excepting Saturdays, Sundays, and legal public holidays) by filing with the Archivist a statement that such an extension is necessary to allow an adequate review of the record.
(C) Notwithstanding subparagraphs (A) and (B), if the 60-day period under subparagraph (A), or any extension of that period under subparagraph (B), would otherwise expire during the 6-month period after the incumbent President first takes office, then that 60-day period or extension, respectively, shall expire at the end of that 6-month period.
(b)(1) For purposes of this section, the decision to assert any claim of constitutionally based privilege against disclosure of a Presidential record (or reasonably segregable part of a record) must be made personally by a former President or the incumbent President, as applicable.
(2) A former President or the incumbent President shall notify the Archivist, the Committee on Oversight and Government Reform of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate of a privilege claim under paragraph (1) on the same day that the claim is asserted under such paragraph.
(c)(1) If a claim of constitutionally based privilege against disclosure of a Presidential record (or reasonably segregable part of a record) is asserted under subsection (b) by a former President, the Archivist shall consult with the incumbent President, as soon as practicable during the period specified in paragraph (2)(A), to determine whether the incumbent President will uphold the claim asserted by the former President.
(2)(A) Not later than the end of the 30-day period beginning on the date of which the Archivist receives notification from a former President on the assertion of a claim of constitutionally based privilege against disclosure, the Archivist shall provide notice to the former President and the public of the decision of the incumbent President under paragraph (1) regarding the claim.
(B) If the incumbent President upholds the claim of privilege asserted by the former President, the Archivist shall not make the Presidential record (or reasonably segregable part of a record) subject to the claim publicly available unless.
(i) the incumbent President withdraws the decision upholding the claim of privilege asserted by the former President; or
(ii) the Archivist is otherwise directed by a final court order that is not subject to appeal.
(C) If the incumbent President determines not to uphold the claim of privilege asserted by the former President, or fails to make the determination under paragraph (1) before the end of the period specified in subparagraph (A), the Archivist shall release the Presidential record subject to the claim at the end of the 90-day period beginning on the date on which the Archivist received notification of the claim, unless otherwise directed by a court order in an action initiated by the former President under section 2204(e) of this title or by a court order in another action in any Federal court.
(d) The Archivist shall not make publicly available a Presidential record (or reasonably segregable part of a record) that is subject to a privilege claim asserted by the incumbent President unless—
(1) the incumbent President withdraws the privilege claim; or
(2) the Archivist is otherwise directed by a final court order that is not subject to appeal.
As to resolving any dispute in this matter “by a final court order that is not subject to appeal,” the “Loose Cannon Decision” has a footnote that provides the answer:
44 U.S. Code § 2204 - Restrictions on access to Presidential records
(e) The United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist violates the former President's rights or privileges.
Thus, the Department of Justice needs to initiate an action to remove this case from the court where it has been improperly brought to the court with the proper jurisdiction.
As to how that is done, my year of law school before I came to the realization that the last thing I wanted to do was be nice to my fellow law students for the rest of my life and left, did not include Federal Rules of Procedure, and the questions I asked Der Google to get some guidance on how to do that didn’t result in the answers I was looking for. So since we have several Fine Legal Minds available here (obviously all people with greater fortitude and stronger stomachs than I possess), I hope we will get an answer to that in the comments.
But the important point to be made is, all the talk of the Loose Cannon Decision being a “rain delay” to the case is wrong. The case can be stymied long enough that Trump could run for re-election and win and then use his presidential powers to end the investigation. If anyone thinks that, in a second Trump Administration, he will observe the tradition that the president does not give marching orders to the Attorney General will be observed, you should definitely go stand out in your front yard tomorrow morning to see the sun rise in the west.
As with all things Trump, things are more difficult than they seem at first glance.
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Whew! Discouraging. The corruption of the courts seems now far advanced. Story: When I was in Duke Divinity School the Durham NC, sit-ins and attempts to integrate things were fully underway. One evening some friends (White and Black) tried to integrate a restaurant; they were thrown to the ground and badly treated. In a seminar the next day (before it started) we complained that this was like the Nazis---to which the professor (Hans Hillerbrand, whose father was a pastor in Germany and friend of Martin Niemöller and was put in a camp by the Nazis but got out) smiled his wry smile and replied to the effect: It is not; the courts have not yet been corrupted. I fear that now we are in the era of corrupted courts in this country.
Always another shiny thing in the griff. DOJ (or Intelligence agencies) should rebottle the search request to each of his properties as boxes were rifled and empty and the contents must be found as a national security imperative, not a criminal issue given the present delay. Petition for multiple search warrants; like dozens or a hundred based upon what is known to be missing. Break up the request for item by item warrants. Flood his lawyers with an insurmountable burden. Let them scream harassment. Justice is only served if pursed aggressively. Then win a supermajority of cases with tfg the defendant, appearing in courts daily at his expense. IMHO.