All Eyes Turn to Appeal as Democrats Protest Decision To Name a Special Master Over Papers Seized From Trump

After Judge Aileen Cannon’s order for a special master, all eyes now turn to whether Attorney General Garland’s Department of Justice, for whom the ruling was a stinging rebuke, will file an appeal. That maneuver is possible under the terms of 28 U.S. Code § 1292, which allows for appeal when a court enjoins a party — in this case the government — from using materials in a criminal investigation. An appeal would likely be heard by riders of the 11th circuit of the United States Court of Appeals.For its part, the DOJ said through a spokesman that it is “examining the opinion and will consider appropriate next steps in the ongoing litigation.” Judge Cannon did allow the government to hold on to the documents in the interim, and ruled that a review of intelligence risks posed by their presence at Mr. Trump’s compound can proceed.In the court of public opinion, some of the most influential voices of the left have mounted a rhetorical assault on Judge Cannon’s decision to appoint a special master. A one-time acting solicitor general, Neal Katyal, opined, “This special master opinion is so bad it’s hard to know where to begin,” and he believes that “any of my first year law students would have written a better opinion.”A law professor, Laurence Tribe, went even further, comparing Judge Cannon’s holding to some of the Supreme Court’s most notorious decisions, including Dred Scott v. Sandford and Korematsu v. United States. The former declared that Black people are not citizens, while the latter allowed for the internment of Japanese Americans. Both were subsequently overruled.Messrs. Tribe and Katyal were joined in their criticism by a one-time attorney general, William Barr, who said to Fox News, “The opinion, I think, was wrong, and I think the government should appeal it.” Mr. Barr called the holding “deeply flawed in a number of ways” and predicted it “wouldn’t hold up.”While the dispute over a special master has not yet ripened into a full-blown constitutional clash, there are hints that such looms and might eventually rope in the Supreme Court. The issue most likely to tempt the high court to intervene is executive privilege. The government pointed to United States v. Nixon for the proposition that courts have rejected an “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” That case held that a generalized claim to confidentiality is not enough to block materials from use in a criminal proceeding. However, meditating on the novel dimensions of this case, Judge Cannon wrote that the Supreme Court “did not rule out the possibility of a former President overcoming an incumbent President on executive privilege matters.”

All Eyes Turn to Appeal as Democrats Protest Decision To Name a Special Master Over Papers Seized From Trump

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