“There are no heroes in this drama,” Andrew McCarthy wrote last night at National Review, but there are certainly a few missed opportunities for some. Late yesterday, a federal judge ordered a special master to review all materials seized by the FBI at Mar-a-Lago to protect any privileged documents from review by criminal investigators.

This froze the document review, but not the investigation itself:

A federal judge will appoint a special master to sift through nearly 13,000 documents and items the FBI seized from Donald Trump’s Florida residence and identify any that might be protected by attorney-client or executive privilege, according to a court order posted Monday.

In a ruling that could slow down and complicate the government’s ongoing criminal probe, U.S. District Judge Aileen M. Cannon wrote that the Justice Department cannot continue reviewing the materials taken from Mar-a-Lago on Aug. 8, or use them in its investigation, until the special master concludes his or her examination.

But she ruled that the Office of the Director of National Intelligence may continue its analysis of the possible risk to national security posed by the removal from government custody of classified documents, some of them related to highly sensitive government and intelligence secrets.

The problem arises from the broad seizure of materials from Mar-a-Lago, permissible under the warrant sought and granted by the Department of Justice. McCarthy has pointed out this issue a number of times in the context of motive for the DoJ. He has been convinced that the issue of mishandling classified materials is either a pretext for a wider investigation or perhaps the investigation is a pretext to just get the materials back. Either way, the search and seizure trawled a lot of documents held in the storage areas back to the DoJ, including a significant amount that might be privileged as attorney-client communications.

Or, potentially, even covered under presidential privilege, as Judge Cannon noted:

In her 24-page order, Cannon sided with Trump’s legal team and said the former president does retain some executive privileges after leaving office — a stance that the Justice Department disagrees with. She also argued that Trump has interest in some of the property that was seized, noting that the Justice Department has said it took some of Trump’s personal materials that were mixed with the government documents.

Remember the executive-privilege debate? It’s not quite as cut-and-dried as some have assumed, although it’s still a heavy lift for Trump in court. Even beyond that, though, with a warrant this broad, someone should have realized that a dispute would arise over both forms of privilege. That is why McCarthy writes about the lack of heroes, and indeed even competence at the DoJ over how this has been handled:

There are no heroes in this drama. The Justice Department has been playing with fire from the start. Trump dragged his feet in seeking the special master, to the point that DOJ had nearly completed its privilege review by the time he finally filed his court action. Cannon, whom Trump appointed to the district court in 2020, inexplicably allowed nine days to elapse after first signaling her inclination to appoint a special master, during which she wrung her hands about whether to order the appointment and, more significantly, failed to rule on Trump’s application for a court-ordered suspension of the Justice Department’s review process and directive that DOJ cease using documents Trump claimed were privileged in furtherance of its criminal investigation.

The Justice Department blithely assumed that Trump had no executive privilege even though this is an unsettled question in the law.

When a salient point of law is unclear, the responsible course for prosecutors is to flag the issue for the court and get a ruling before taking controversial actions. Instead, in seeking the search warrant, DOJ advised Magistrate Judge Bruce Reinhart that the filtering process that would be implemented in connection with documents seized in the search would screen only for attorney-client privileged documents, not executive privileged documents. The latter category is apt to be considerably more expansive. It does not appear that DOJ alerted Reinhart to the possibility that Trump could have a colorable executive-privilege claim, and there’s no indication that Reinhart raised the question on his own.

Jonathan Turley raises an even more basic question. Anyone even without a law degree would have to realize that seizing materials from a former president facing any number of legal actions already would risk violating attorney-client privilege, at the very least. So why didn’t the DoJ appoint a special master in the first place, rather than a “taint team”?

Many faculty on the left continued the curious objections to a court seeking review of the FBI or not accepting its overbroad claims of authority. It is a bizarre shift that we have seen in other Trump investigations where liberals suddenly express shock that a court would countermand sweeping national security claims or seek to review the Justice Department’s review of material for privilege. It does not matter that there appears to have been mistakes by the taint team and that privileged material (as well as an assortment of private material from medical records to tax records) were seized. …

The Justice Department may appeal the decision. Special masters are routinely appointed as an extension of the authority of the court to help create a record upon which the judge can rule. It is not common to see this type of review at this stage but this is hardly your common criminal case given the intersecting constitutional and attorney-client privilege claims.  Such appointments are generally left to the discretion of the trial court by appellate courts.

Yet, that does not mean that appellate judges might not tailor the order (or even block it). For example, appellate judges could question the scope of the bar on the use of the documents. They could loosen the ruling to allow the use of some documents with classification markings or require threshold determinations to free up such material.

However, the appointment of a special master in my view was the right thing to do. It was unfortunately another step that Attorney General Merrick Garland could have taken but refused to do so.  Garland has had at least four opportunities to take modest steps to assure the public on the department’s motives and means in this controversy.

One would think that, in a situation this potentially explosive, Merrick Garland would have taken extra care to dot the Is and cross the Ts. Instead, it looks like the DoJ and FBI conducted itself carelessly and to a certain extent heedless of the problems they might create for themselves. That hardly instills a sense of confidence that this is merely a professional and objective pursuit of justice.

What will the DoJ do next? They could appeal Cannon’s order, but the finding that the DoJ already missed privileged material in its “taint team” review may make that a complicated move. If they’re smart, they’ll allow the appointment of the special master that Garland should have appointed pro-actively in the first place. The delay won’t matter much in the end, unless they want to rush an indictment before the midterms … and that would raise even more questions about motives.