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.