Since the start of the controversy over the Mar-a-Lago raid, I have called for the release of a redacted affidavit and the appointment of a special master to sort through the seized material, including alleged attorney-client privileged material. Indeed, I felt that this was one of the four failures of Attorney General Merrick Garland in not taking proactive steps to assure that public that this was not a pretextual raid to collect sensitive material for other investigative purposes. Now, District Judge Aileen Cannon has indicated an intent to make such an appointment. It was a belated request from the Trump team but, as I wrote yesterday, it would still have considerable value in the case.
Judge Cannon filed an order Saturday morning that “The Court hereby provides notice of its preliminary intent to appoint a special master in this case.”
Such an appointment should have been done before the Justice Department reviewed the material. The Department sought a ridiculously broad search warrant and Magistrate Paul Reinhart simply signed off on the order without considering the wide array of privileged material that could be seized. It adopted language so broad that it was the legal version of Captain Jack Sparrow’s “Take what you can … Give nothing back.” It allowed the seizure of any box containing any document with any classification of any kind — and all boxes stored with that box. It also allowed the seizure of any writing from Trump’s presidency.
However, a special master could still serve the same interests of transparency and legitimacy. The special master could divide these documents in classified material, unclassified but defense information, and unclassified material outside of the scope of the alleged crimes. The last category would then be returned.
That accounting could also offer basic descriptive information on the material without revealing their precise content or titles. The special master could describe material as related to national defense or nuclear weapons (as was previously leaked government sources). The government has already leaked that there was nuclear weapons material being sought. Confirming such general details can be done without giving details on the specific information or even titles for the documents to protect national security. In national security cases, including cases where I have served as counsel, such indexes and summaries are common.
Once again, as with the release of the redacted affidavit, Garland could have taken these steps to assure the public that the Department was not acting for political or improper purposes — or using excessive means to achieve those goals. He has refused every opportunity to do so while chastising those who question the integrity of his Department.
The release of the redacted affidavit shows that what Garland and his Department told the public was untrue about the inability to release a redacted affidavit without endangering the case or national security. As discussed yesterday, the redacted affidavit confirmed various key points on the legal and factual background. After opposing the release of even a single line, the government released whole pages that were manifestly suitable for public disclosure.
Once again, Garland waited to be forced to take this step rather than act on his own to address widespread concerns. His department has a documented history of officials misleading courts and filing false material in Trump-related investigations. This is yet another example of how Attorney General Garland has done little to earn the trust of almost half of the country. In this and other controversies, he has demanded respect but refused to take even modest measures to justify it.