Trump’s Request For A Special Master In Mar-a-Lago Case Is “Unprecedented” And “Manifestly Frivolous”, Former Republican Officials, Including Federal Prosecutors And DOJ Officials, Write In Amicus Brief Filed In Florida Case
Regardless of one’s political views, it is clear that there is no legal support for former President Donald Trump’s request for a special master to oversee a review of the evidence seized by the Justice Department in its court-appointed search of Mar-a-Lago on August 8, according to an amicus brief filed on Tuesday in the U.S. District Court case brought by the former President.
The amici are former federal prosecutors and state and federal government officials, including former Assistant, Deputy, and Acting Attorneys General and top Justice Department officials in previous Republican Administrations:
Donald B. Ayer served as Deputy Attorney General at the Justice Department (1989-1990), Principal Deputy Solicitor General of the United States (1986-1989); and U.S. Attorney for the Eastern District of California (1981-1986). He has argued 19 cases in the U.S. Supreme Court.
Gregory A. Brower served as Assistant Director for the Office of Congressional Affairs at the FBI, U.S. Attorney for the District of Nevada, and as both General Counsel and Inspector General at the U.S. Government Publishing Office. He also served five regular sessions in the Nevada Legislature, including as chair of the Senate Judiciary Committee (2015).
John J. Farmer Jr. served as an Assistant U.S. Attorney, New Jersey Attorney General, Senior Counsel to the 9/11 Commission, and Dean of Rutgers Law School, and is currently Director of the Eagleton Institute of Politics. He also served on New Jersey’s Executive Commission on Ethical Standards, Advisory Committee on Judicial Conduct, and the State Commission of Investigations.
Stuart M. Gerson served as Acting Attorney General of the United States during the early Clinton Administration, as President George H.W. Bush’s Assistant Attorney General for the Civil Division of the Justice Department, as an advisor to several Presidents, and as an Assistant U.S. Attorney for the District of Columbia (1972-1975).
Peter D. Keisler served as Acting Attorney General of the United States during the George W. Bush Administration. He served as Assistant Attorney General for the Justice Department’s Civil Division (2003-2007), as Principal Deputy Associate Attorney General and Acting Associate Attorney General (2002-2003), and as Assistant and Associate Counsel to President Ronald Reagan in the White House Counsel’s Office (1986-1988).
William F. Weld served as the U.S. Attorney for Massachusetts (1981-1986), as Assistant U.S. Attorney General in charge of the Justice Department’s Criminal Division (1986-1988), and as Governor of Massachusetts (1991-1997).
Christine Todd Whitman served as Governor of New Jersey (1994-2001) and as Administrator of the Environmental Protection Agency during the George W. Bush Administration (2001-2003). She serves on a number of nonprofit boards including the Board of Trustees’ Executive Committee of the Eisenhower Fellowships and the Board of Directors of the Council on Foreign Relations.
(The amici joined this brief as individuals; institutional affiliation is noted for informational purposes only.)
Collectively, these individuals have decades of experience prosecuting cases involving sensitive materials or advising on matters involving the proper scope of executive power and executive privilege.
The brief, filed in Donald J. Trump v. United States of America in the U.S. District Court for the Southern District of Florida, West Palm Beach Division, details three independent reasons why former President Trump’s request for a special master should be denied.
First, according to the brief:
“[T]he relief sought is unprecedented. The former President has not cited – and Amici are not aware of – any precedent involving the appointment of a special master to adjudicate a claim of executive privilege (as opposed to attorney-client privilege) by a former president against the same Executive Branch to which the privilege belongs.
“That is not surprising. The purpose of the executive privilege is to prevent those outside the Executive Branch from intruding in the decision-making of the Executive Branch. That intrusion does not occur when the Executive Branch itself is the entity reviewing the records, and for its internal use.”
Second, according to the brief:
Congress has established a specific procedure, set out in the Presidential Records Act (PRA), through which a former president may challenge a sitting president’s actions on executive privilege. Former President Trump’s “motion ignores that statute’s requirements, including the requirement that any challenge by a former president to the Executive Branch’s rejection of his claim of privilege be brought in the jurisdiction available under the PRA, the United States District Court for the District of Columbia.
“The former President thus seeks relief to which he is not entitled – adjudication of his claims of executive privilege by a special master – in a court that is statutorily precluded from hearing the matter.”
Third, according to the brief:
The appointment of a special master “would be a waste of time because the claim of executive privilege against the Executive Branch in this case is manifestly frivolous. Controlling legal precedent on this issue establishes that determinations of executive privilege made by the current President outweigh claims of privilege made by a former president. Here, it is abundantly clear that the Executive Branch, including the President and the Acting Archivist of the United States, have determined that the records at issue should be reviewed by the U.S. Department of Justice and the Federal Bureau of Investigation.”
The brief further notes: “Even assuming that a former president may, in certain circumstances, assert claims of executive privilege against the Executive Branch after leaving office, that claim of privilege cannot survive an objection to the claim by an incumbent president.”
The Executive Branch’s interest in the materials recovered from Mar-a-Lago, the brief continues, “is compelling. The Executive Branch seeks the seized records to pursue a criminal investigation of the improper treatment of government records, including records containing information classified as ‘Top Secret,’ and to conduct a damage assessment and take remedial steps based upon the potential disclosure of those materials. … These are essential, constitutional functions that the Executive Branch cannot adequately perform without access to the seized records.”
There is, the brief continues, “great urgency in conducting a thorough damage assessment of any potential mistreatment of classified materials, which militates against the additional delay that would inevitably result from the appointment of a special master in this matter.
“To indulge former President Trump’s assertions of executive privilege through the appointment of a special master would simply put off the inevitable, and harm significant national interests in the process by delaying a criminal investigation and intelligence community assessment of damage.”
A hearing in the case has been scheduled by federal district judge Aileen Cannon for Thursday, September 1 at 1:00 p.m. in West Palm Beach.
The amicus brief is available online here and was prepared by co-counsels Paul, Weiss, Rifkind, Wharton & Garrison LLP, Democracy 21 President Fred Wertheimer, and Ambassador Norman Eisen (ret.).
