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The probe into Trump's seized documents raises executive privilege questions

A MARTINEZ, HOST:

The investigation into the documents seized from Mar-a-Lago is unlike any other, and the legal question of executive privilege is at the center of it. Here to help us understand the ruling by Judge Cannon, we turn to Jessica Roth, professor at law, Yeshiva University. Professor, so let's start off with the purpose for executive privilege. What is it?

JESSICA ROTH: The purpose of the executive privilege is to protect the confidential communications within the executive branch and to allow the president to receive candid advice from their advisers to facilitate better deliberations by being assured that those communications will generally be protected from disclosure to outsiders. That's the core of the executive privilege.

MARTINEZ: OK. So how is Judge Cannon then explaining how it applies in this case?

ROTH: Well, she really hasn't. I mean, that's part of what is so unusual about the opinion, which is that there isn't really a cogent argument articulated for how executive privilege would apply here. She essentially posits that there may be, among the documents that were seized, some that would contain confidential presidential communications. But by no means is it clear that any judge who ultimately - or any special master who ultimately reviews these documents would rule that there was a privilege that would apply here.

And importantly, even if there is an arguable basis for asserting executive privilege, the executive privilege, when it exists, is not absolute. And so it's always weighed by courts against the interests served by disclosing the information to the authorities who are seeking it here. And again, that's part of what makes this ruling so surprising, which is one of the grounds for granting an injunction, which the court did here to bar the Justice Department from continuing its review of the seized documents, is that you need to show a likelihood of success on the merits. And given the case law on executive privilege, it just seems extremely unlikely that any such claim would succeed here.

MARTINEZ: OK. So the judge ruled that former President Trump does have some executive privileges. Doesn't really explain - goes in-depth on why or how. But how does it apply then to documents that are not covered in this case, the documents seized by attorney-client privileges, the ones labeled top secret or highly classified?

ROTH: Well, just to be clear, it's not - she hasn't ruled that he has an executive privilege in these documents. She's just willing to entertain the notion that he might.

MARTINEZ: OK.

ROTH: But with respect to other materials that don't fall within communications within the executive branch, that would be a separate determination as to whether attorney-client privilege would apply. The Department of Justice already has appointed a filter team that's been reviewing those documents to see whether or not attorney-client privilege applies. The judge didn't really discuss that aspect of the special master's work here and what would be the basis for it. But whoever ultimately reviews these documents, whether it's a special master or this judge herself or the magistrate judge, will be looking to see whether there are confidential communications between former President Trump and attorneys that would be part of the provision of legal advice.

MARTINEZ: And in yesterday's ruling, Judge Cannon cited a Supreme Court ruling from earlier this year related to the January 6 investigation documents. Can you dissect that part of her argument?

ROTH: Yeah, she cited that opinion to push back against the Department of Justice's assertion that it was clear that a former president could not assert executive privilege. She said she didn't think the case law was actually so clear in that D.C. Circuit opinion that involved the inquiry by the January 6 committee. The D.C. Circuit rejected former President Trump's assertion of executive privilege, and it suggested that former presidents had a very diminished interest in or ability to assert executive privilege. But it ultimately issued its ruling, saying that under any test, whether it was a sitting president or a former president, it would have ruled against the claim of executive privilege.

That case - the Supreme Court was asked to take it. It did not take the case, but it did issue an order explaining that it was not taking the case, and it allowed the decision to stand. But in that decision, the court took pains to point out that any discussion by the D.C. Circuit in its ruling of the significance of Trump's status as a former president was not precedential because it wasn't necessary to the decision. And Justice Kavanaugh wrote separately to make clear that he thought former presidents could, in some circumstances, assert executive privilege. Justice Thomas voted for the court to take that case.

So I think it's fair to say that the status of a former president's ability to assert executive privilege in some circumstances is unsettled and that at least some members of the U.S. Supreme Court are friendly to the idea that a former president retains the ability, at least in some circumstances, to assert executive privilege without reaching the question of exactly when it would apply - would it apply to these particular facts?

MARTINEZ: What's this investigation from the Justice Department going to look like, at least for the time being?

ROTH: Well, the Justice Department has some very difficult decisions to make in the short term. They have to do it quickly. They have to decide whether they're going to appeal and consider the - sort of the timing aspects of this. Could they get a decision from an appellate court quicker than they could complete the review by the special master? And they also then have to consider whether they're willing to let this decision stand. Currently, it doesn't have any precedential value for other courts. But if they do appeal, they risk getting an unfavorable ruling from an even higher court that would have precedential value.

But in the meantime, they also have to consider the impact on their ongoing criminal investigation. They are permitted to continue to develop evidence and interview witnesses so long as they're not doing so based on the documents that were seized at Mar-a-Lago. That's going to hamper them to a certain extent, and it's also going to impose a burden in that they're going to have to be confident that if they're ever required to establish that they didn't rely on these documents in developing future evidence, that they'll be able to do so.

MARTINEZ: How solid is the Justice Department's legal footing should they decide to appeal the ruling? Because they've said that executive privilege should not apply in this case.

ROTH: I think their legal footing is extremely strong. It's strong, essentially, all the way through. I mean, the judge really went out of her way to be solicitous of former President Trump's arguments, from asserting jurisdiction over the case to recognizing that he could - or entertaining that he could have a claim of executive privilege here to granting the injunction temporarily. So there are multiple bases for appeal. I think, again, the question here is going to be whether or not the Justice Department wants to proceed in that - with that route, given that it could take longer to complete any appeal and also given the risks, as I mentioned, of getting an opinion from a higher court that even though, based on the precedents, should not affirm what the district court did here, there is that risk.

MARTINEZ: So to recap, a Trump-appointed judge makes a ruling for Trump, in part citing a remark by a Trump-appointed Supreme Court justice from a different case. Professor, do you have any questions about the neutrality of the situation?

ROTH: Well, I think throughout this opinion and these proceedings, what we see is a judge going out of her way to afford former President Trump a consideration that would not be afforded, or has never been afforded to my knowledge, to any other target of an investigation.

MARTINEZ: Jessica Roth is a professor of law at Yeshiva University. Professor, thanks.

ROTH: Thank you.

(SOUNDBITE OF THRUPENCE'S "FOREST ON THE SUN") Transcript provided by NPR, Copyright NPR.