Yes, the Florida district court judge’s decision granting Trump’s request for a Special Master was wrong and badly reasoned. I won’t separately go through all the reasons for that, and instead accept the fact of this decision for now.
Nonetheless, there is a simple, effective and just path forward: the Special Master should be directed to first review and make any determinations as to the sub-set of documents that are marked as classified. In other words, there is no reason to have to wait until the Special Master’s entire review is completed for all documents before we decide this crucial, but limited, determination on the classified documents. Why?
1. In terms of immediate need, the classified documents are the only, or at least most crucial, documents required for the on-going criminal investigation. This volume of documents is discrete and relatively small, and will be separately segregated anyway because the Intelligence Community has not been enjoined from considering them in their on-going risk assessment. There is no reason to hold these documents in limbo while other low-value documents are assessed by the Special Master.
2. All the other documents — allegedly personal, medical, tax, attorney-client privilege, executive privilege and/or non-responsive documents — can all be determined next and on an extended schedule without much of a care in the world. It is the classified documents that are the key criminal evidence and the national security threat.
3. Plus, unlike the other categories, the classified documents cannot be subject to any plausible claim by Trump of a personal attorney-client privilege or executive privilege. These are documents prepared by military and intelligence agencies in the Executive Branch. Quite frankly, I am not sure what the Special Master is supposed to do or say about these documents, or what relevant argument team Trump could make. So, again, why should these unique and crucial documents be held in limbo while the rest of the Special Master’s search continues?
a) Side note: Trump has publicly argued that he de-classified all of these documents while in the White House. That would be a potential defense to his criminal liability (although none of his attorneys have ever made this claim in a court filing or correspondence with the government). Fine. If he claims de-classification, then all these documents should be immediately unrestricted for DOJ and government use. If he is not willing to formally make this defense, then he has waived the defense. That would be valuable to know, and he can’t be allowed to have it both ways. In any event, what is the Special Master supposed to do? Determine that the documents are classified or not classified and yet somehow the Biden DOJ is enjoined from seeing or using such documents (even in a criminal investigation related to their misuse?). This is all incoherent and unsupportable.
So . . . this is not complicated. Appointment of a Special Master was wrong, but there is no reason it has to be a mindless catastrophe. Let him or her review and decide the classified documents immediately, and then sort out the other document questions at whatever reasonable pace you like. In the interim, a larger appeal can proceed.
I know that a cynical, and maybe correct, view is to simply sigh: this makes sense but the judge will never agree to this, that she is in on the delay game. If so, fine — but don’t give up and instead fight. The DOJ needs to explain this path to the public, make the record, and either win or make the judge publicly show that her interests are, in fact, in baseless delay. In the latter case, go to the public and take that up on appeal specifically.