The DOJ’s proposed nominees are two retired judges: Barbara Jones, a former federal district judge in the Southern District of New York who recently served as a special master in the review of documents seized in search warrants executed at the offices of Trump lawyers, Rudy Giuliani; and Michael Cohen? and Thomas Griffith, a former federal appeals court judge in Washington, DC Trump’s lawyers suggested: Raymond Dearie, a former chief judge of the federal district court in the Eastern District of New York with experience in the Foreign Intelligence Surveillance Court (FISA), and Paul Huck, who had worked with one of his current lawyers Trump for then-Republican Florida Governor Charlie Crist. Huck is married to Judge Barbara Lagoa, a federal appeals court judge in the 11th Circuit — the same appeals court that will hear any appeal in this case. Of those candidates, Hack seems completely compromised by a conflict of interest, given that he used to work with Trump’s current lawyer and his wife sits on the same appeals court that could hear appeals in this case. Jones, Griffith and Dearie are reasonable choices and the parties have until September 12 to state their positions on each other’s options. If they can’t agree, then the decision will be entirely in Judge Cannon’s hands – something the DOJ may want to avoid given that it can choose Huck. Both sides also disagree about how much time the special master should have to complete their review. The Justice Department wants it done by Oct. 17, but Trump’s lawyers want three months for the review. Delay usually favors the defense in criminal investigations. And in this case, if Cannon grants the three months, it would freeze the DOJ’s investigations until after the midterm elections, since she has issued a stay barring DOJ and FBI investigators from reviewing any of the Mar-A- documents. Lago until the expert master completes a review. The workflow process is also being challenged by the parties with Trump’s lawyers wanting the right to communicate privately with the special master, excluding the DOJ, and to send classified documents they wish to have reviewed directly without the DOJ seeing them. The DOJ counters that its ability to see the document categories — typically referred to in logs that identify the documents without disclosing their contents — would reduce the special master’s workload because the DOJ might agree to some categories that would reduce the need for a large volume of ex parte communications, and thereby improve the “perceived fairness and transparency of the process.” The DOJ also wants Trump and his team to pay for the special master’s costs, since Trump is the one they want. Instead, the Trump team unsurprisingly wants to go to the Netherlands for the cost. “The breadth and depth of these disagreements between the Justice Department and Trump’s lawyers appear to make further legal battles and appeals inevitable.” But the most significant disagreement between the two parties is the scope of the special master’s work. The DOJ argues that the special master: (1) should not review classified documents; (2) should not award Executive Privilege claims but rather submit these documents directly to the National Archives and Records Administration (NARA); and, (3) should consult with NARA in determining presidential records. Trump’s lawyers dispute all of this, arguing that the Justice Department mistakenly believes that the documents are classified in perpetuity and that Trump’s interest in any presidential record means it cannot deny him control and access to them. The breadth and depth of these disagreements between the DOJ and Trump’s lawyers appear to make further legal battles and appeals inevitable. In particular, the dispute over the scope of the special master’s authority goes to the heart of what’s at stake in the special master’s appointment, because it serves as a proxy war for Trump’s view of an expansive presidential power that can stand against the rest of the Executive Branch. Ironically, as England goes through the ancient process of installing a new monarch, this dispute in a Florida courtroom is really a battle over whether American Presidents are civil servants or emperors. In 1776, America went to war over this issue and won. But principle demands that we defend it again today and every day.
