Legal implications of decision to appoint special master to review Trump documents

Legal implications of decision to appoint special master to review Trump documents

Barbara McQuade:

No.

In fact, there’s just some theoretical preservation of residual privilege to — and the purpose of it, of course, is to protect candid communications and encourage candid communications between a president and his closest advisers while he is in office.

And if the idea is that this could all be spilled out later, people might check themselves or you might have a chilling effect on their communications while in office. But it’s the incumbent president, one executive, unitary executive, who gets to decide, in the end, whether to assert privilege.

And so I think Joe Biden could take it under advisement and decide, if he wanted, to protect this privilege. But he has already said that he was deferring this decision to the acting archivist of the United States, who has said she is asserting the privilege in favor of the — or she is waiving the privilege. There is no privilege of these documents, because they belong to the United States government.

And so I just don’t see how this piece of the order can possibly take effect, and, as I said, whether that requires an appeal or a clarification in the order that the Justice Department’s submits on Friday, I’m not sure the best vehicle for getting that. But, at the moment, I think there’s just at least a lack of clarity as to what she means by filtering out executive privilege materials from the executive branch.

https://www.pbs.org/newshour/show/legal-implications-of-decision-to-appoint-special-master-to-review-trump-documents