The extraordinary and unprecedented ruling by Judge Aileen M. Cannon of the Federal District Court for the Southern District of Florida to appoint an independent arbiter (special master) to search the more than 11,000 government documents removed to Mar-a-Lago by former President Donald Trump — including ones that had some of the highest categories of government classifications — for those covered by attorney-client privilege or executive privilege will only delay the Department of Justice investigation into the alleged theft. However, the judge’s stretching of the already constitutionally shaky principle of executive privilege to a former president subject to a criminal investigation could have significant ramifications. Explicit in the judge’s ruling is a violation of the principle that everyone is equal before the law by her assigning a special category to a former president, who has already been treated with kid gloves by the National Archives and the Justice Department, which also have become used to about two-and-a-quarter centuries of an extra-constitutionally built imperial presidency.
The entire concept of executive privilege is questionable historically because the Constitution — written in 1787 and ratified in 1788 with the recent tyranny of King George III in mind — clearly intended, in Article I, that Congress, not the executive, be the most powerful branch of government. Although the president could veto congressionally passed legislation (even that could be overridden with a two-thirds vote), the executive’s limited role, enunciated in Article II of the document, was to execute or carry out Congress’s legislative will domestically or as commander in chief of the military in wars first declared by Congress.
Read Full Article »