Judge Cannon Was Right To Appoint a Special Master | Opinion

Judge Aileen Cannon was correct to reject the Justice Department's "trust us" argument that, in the aftermath of the unprecedented raid of Mar-a-Lago last month, its "taint team" was sufficient to protect former President Donald Trump's legal rights. The rights at stake are important: lawyer-client and executive privileges, both of which are rooted in the Constitution. The taint team is comprised of Justice Department officials who report to the same attorney general, Merrick Garland, to whom federal prosecutors report. The self-serving justification for a taint team is that Justice Department lawyers can be trusted to keep from other Justice Department lawyers the content of any privileged material.

Assume for argument's sake that the taint team discovered a "smoking gun" document—say, an admission by Trump to his personal lawyer that he had deliberately destroyed several previously subpoenaed documents. This unlikely admission would be privileged, since it involves a communication about past, not future, crime.

Could every member of the Justice Department taint really team be trusted not to communicate that, by a wink or a nod, to the relevant Justice Department trial lawyers?

Or consider a more salacious admission—say, a past affair with a Russian agent. This too would be privileged. Could the taint team really be trusted not to leak such a juicy tidbit to a friendly journalist, who would be protected from having to reveal the source?

Many American would want to see such information disclosed. But the law, for better or worse, requires that it be kept secret. If the law were changed to permit such disclosure, clients would not make such admissions to their lawyers. In that case, lawyers would be unable not only to defend their clients effectively; they would also be unable to try to persuade their clients to do the right thing, such as disclosing their derelictions in order to minimize the legal damage.

The same would be true of information subject to executive privilege. The Biden administration, backed by its reliable apologists in the legal academy, argues that an incumbent president is empowered to waive the executive privilege of a former president—who, as it happens, is also his likely opponent in the upcoming election.

What president would ever confide in a staff member, knowing that his successor can waive his privilege to achieve a partisan electoral advantage? Yet this is precisely what these biased legal "experts" are advocating—so long as the holder of the executive privilege is Trump. You can be sure that many of them would be arguing the exact opposite if the roles were reversed for Trump and Biden.

This is what it has come to in American media, academia, and politics. Arguments aren't made or judged on their substantive merits or demerits. The only criteria pertain to which side is benefited by how an issue is decided. A winning argument on its underlying merits will be attacked if it is made by the "wrong" person or party, and a losing argument will be praised if it helps the "right" person or party.

The Bible commands us not to "recognize faces" when trying to render justice. Hence, the ubiquitous blindfolded statue of a woman holding the scales of justice. But today, there are no blindfolds or scales; "justice" is what helps your friends and hurts your enemies. The thumb of partisanship weighs too heavily on the scales of justice. Neutral principles used to be praised; now, they are condemned as implicitly favoring the status quo, the powerful, and the entitled. The Constitution has been trashed in the false names of "equity" and "anti-racism." The rule of law has been weaponized against meritocracy and color-blind equality.

Returning to Judge Cannon's decision to appoint a special master, there has been scant debate on the actual legal merits or demerits of her decision. The discussion has instead focused on whether it makes it more difficult to "get" Trump. Civil libertarians who have traditionally distrusted the Justice Department to properly monitor itself are suddenly defending internal "taint teams." Instead of being skeptical of FBI intrusions on due process, many are now calling for more intrusive measures against President Trump. Some even advocate for expansion of the Espionage Act of 1917—perhaps the most anti-civil liberties and anti-free speech statute from the 20th century.

The shoe doesn't have to fit on Trump's foot, as long as it can be used to kick him to the ground. This is not blindfolded justice.

Alan M. Dershowitz is the Harvard Law School Felix Frankfurter Professor of Law, emeritus. He is the author, most recently, of The Price of Principle: Why Integrity Is Worth the Consequences. Follow him on Twitter: @AlanDersh. His new podcast, "The Dershow," is available on Spotify, YouTube, and iTunes. Also: Dersh.Substack.com.

The views expressed in this article are the author's own.