Page:DOJ Response to Special Master.pdf/23

Rh Appointment of a Special Master Is Neither Necessary nor Appropriate to Address Executive Privilege in this Case

The former President asserts (D.E. 1 at 14–16) that review by a special master is necessary because the records at issue are presumptively subject to executive privilege. But even if the former President had actually asserted executive privilege with regard to any of the seized documents (which he has not), and even if he had statutory authority to do so (which is not established), such an assertion would fail here because this case involves the recovery and review of executive records by executive officials performing core executive functions. The Supreme Court has made clear that a former President may not successfully assert executive privilege “against the very Executive Branch in whose name the privilege is invoked.” Nixon v. GSA, 433 U.S. at 447–48. And even if there might be some extraordinary circumstance in which a former President could successfully assert executive privilege against the Executive Branch, this case plainly would not qualify: the seized materials—and, in particular, any such materials marked as classified—are essential to a criminal investigation into the handling of the records themselves, and the government is also reviewing those highly sensitive records to determine whether their handling created risks to national security. Those vital Executive Branch needs far outweigh any limited burden on the general interests served by the executive privilege. Finally, appointment of a special master in these circumstances would be inconsistent with basic principles of equity.

A former President cannot successfully assert executive privilege against the Executive Branch in its performance of executive functions.

Even if the former President had attempted to assert executive privilege (which he has not done), that assertion would not justify any restrictions on Executive Branch access to