Trump has requested a special master to review the documents obtained by the DOJ from Mar A Lago and determine if they took any privileged information. Judge Cannon has granted this request, and a review is pending. No one knows how long this review will take, but for now, the DOJ’s criminal investigation is delayed. Once the review is completed, we can almost be sure that Trump will claim that some of the materials are privileged info and are therefore barred from being used as evidence. Then we will be in a battle between Trump and the DOJ on whether or not Trump has the right to claim privilege.
It’s not clear whether Trump is arguing executive privilege or attorney-client privilege, or both.
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If attorney-client privilege:
There is a DC court of appeals precedent that will be used to shut that argument down by the DOJ. Arguing that the privilege is waived when the information is crucial to the outcome of a criminal investigation.
If executive privilege:
Trump will have to argue that the executive privilege of a former president supersedes the current president’s ability to waive it.
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This is not the first time Trump has asserted executive privilege. The first was when the Jan 6 committee requested Trump records from the National Archives. SCOTUS rejected Trump’s claims of executive privilege. The second was when the National Archives informed Trump’s lawyers that they wanted to turn over the 15 boxes of documents to the FBI.
Once again, Trump’s claims of executive privilege was rejected/ignored. But whether or not a current president can waive the executive privilege of a former is still to be determined. Even in the Scotus ruling where the Supreme Court shut down trumps claim of executive privilege over January 6, they never actually addressed this and admitted there is no precedent.
SCOTUS upheld the appeals court’s decision, claiming that Trump’s assertion of executive privilege would have failed regardless, even if Trump was the incumbent president. So there was no need to address the issue. Therefore, we still don’t know if a current president can waive a former president’s executive privilege. But let’s think. If the current president can waive the executive privilege of a former, then every single time there is a transfer of power, the new administration would go after the former. Future Presidents would then become reluctant to discuss anything with advisors, knowing that as soon as they leave office they will come under scrutiny.
A terrible precedent is set, and they’d be doing this, knowing that eventually, the shoe will be on the other foot.… Unless, of course, they never intend to give up power and don’t care about precedent.
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