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Criminal Investigation of Trump Halted
Special-Master Judge Asked Wrong Question, But Did Ask One Correct One
Banzhaf notes that most independent legal scholars thought that Donald Trump's legal demand for the appointment of a special master to review the documents had no legal basis.
Therefore, when the judge announced that the key question was "where was the harm," that was the wrong question since Trump had no right to such an appointment, even if there would be little harm.
For example, if neighbor A decides to plant an apple tree in his back yard, and neighbor B asks a judge to stop the planting until an independent tree expert can decide whether an apple tree is the best type of tree to plant, the question should not be "where is the harm" in delaying the planting since, even in the absence of any real harm in the delay, A has no legal right to have an independent expert drawn into the situation.
Similarly, if Trump has no valid legal claim to such an appointment, he should not be granted one even if the government cannot convince the judge that it would cause be significant harm.
On the other hand, Banzhaf suggests that Judge Cannon was correct in suggesting that President Joe Biden might not be able to waive or otherwise override Trump's executive privilege.
Executive privilege was created to help insure that those who advise a president in confidence will not later have that conversation revealed if a later president thinks it's to his own advantage. Otherwise, advisors probably would not be candid; e.g., suggesting a course of action which might prove very unpopular.
This is especially true in the current so-called "cancel culture" where lawyers who represents unpopular causes or clients - and/or are not in sync with whatever the current public mood happens to be at the time - can be forced out of their firms, lose many prospective clients, or even be fired, says Banzhaf.
Those advising Biden on sensitive issues (e.g., cancellation of student debt, the border situation, etc.) want to be sure that their frank and probably controversial views will not be revealed if a Republican president elected in 2024 tries to waive Biden's executive privilege.