Judge halts investigation of Mar-a-Lago papers pending review by an independent attorney

A Florida judge has ordered the appointment of an impartial attorney to review documents seized from Donald Trump's Mar-a-Lago residence. This measure temporarily blocks the Department of Justice from conducting a criminal investigation with these materials.

Executive privilege

This decision has a very important implication. President Trump can assert attorney-client privilege, as can any citizen under judicial suspicion. That was not in doubt, the question is about what documents Trump can claim are protected by that privilege. However, to this comes an added executive privilege, which is the ability for a president to protect his conversations with his aides while exercising his duties.

Donald Trump had requested the appointment of independent counsel to review the materials, but the Department of Justice refused. First, the DOJ believed that a former president like Trump could not claim executive privilege in this case because exercising it would undermine the processes of the presidency that the privilege seeks to protect. On the other hand, it claimed that the Department of Justice itself had created a team dedicated to filtering the documents which was different from the one in charge of conducting the investigation, making arbitration, exercised by an independent lawyer, unnecessary.

Judge distrusts Justice Department

Judge Aileen Cannon argues, "The Court is mindful that restraints on criminal prosecutions are disfavored but finds that these unprecedented circumstances call for a brief pause to allow for neutral, third-party review to ensure a just process with adequate safeguards." In other words, the judge questions the impartiality of the Department of Justice when it comes to filtering which documents should be protected by attorney-client privilege.

The order signed by the judge reports that there are about 500 pages of documents that are protected by attorney-client privilege. These are documents related to accounting, or tax matters, or matters related to the president's health.

Research at a standstill

This means, in practice, that the DOJ and the Administration have to stop using the materials seized in the investigation until they are reviewed by the impartial arbitrator. The investigation will be practically paralyzed until November 8, when the mid-term elections will be held.

However, the judge's order allows intelligence officials to proceed with the examining the possible harm Donald Trump may have caused to national security by taking highly sensitive documents home.

Potential reputational damage

Judge Cannon has not found in the Mar-a-Lago search by the administration a "compelling showing of callous disregard for (Donald Trump’s) constitutional rights.”

On the other hand, the judge has taken into consideration the damage that could be inflicted on Trump's reputation in the event that the seized materials were misused in a criminal prosecution against him. "A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude" than any ordinary citizen could suffer.