Now that he has the “special master” he requested to deal with the documents he hoarded at Mar-a-Lago, Donald Trump is already finding reasons to object to the process. Specifically, Trump’s legal team is refusing to talk about whether, or how, Trump actually tried to declassify any of the documents by claiming it would harm their “defense to the merits of any subsequent indictment.”
In other words, they’re saying that if they reveal that Trump didn’t declassify any documents, that could subject him to legal action for stealing and holding highly classified information. Which he did. And if Trump claims he did declassify documents, then he’ll have to prove that in court, and also be subject to possible charges over failure to follow the law regarding declassification. Plus, there’s the whole perjury issue—and the issue of Trump obstructing an investigation—that comes with lying about the whole thing.
On top of this, the special master wants this whole thing wrapped up quickly. Trump objects, because that’s the last thing he wants. And finally, the special master wants to know something that’s been bothering everyone: Why is this thing in front of him instead of being dealt with by the court that issued the search warrant in the first place?
In response to the ridiculous ruling by Trump-appointed Judge Aileen Cannon, former district court Judge Raymond Dearie has been made “special master” over the documents removed from Mar-a-Lago during an FBI search, including over 11,000 documents that could fall under the regulations of the Presidential Records Act.
Dearie’s job is straightforward enough: He is to determine which, if any, of these documents might be subject to some form of protective privilege. In most special master cases, that privilege is limited to attorney-client privilege. In fact, it’s very difficult to find another special master case that doesn’t involve a search of an attorney’s office and the need to protect clients not involved in the actual crimes being investigated (so difficult that it may be impossible). But Dearie has also been charged with making evaluations related to executive privilege.
On Friday, Dearie issued an order to both the Justice Department and Donald Trump’s legal team instructing them to submit a proposed agenda for a preliminary conference to be held on Tuesday. On Monday morning the government sent in its response, which set out a simple proposal for the meeting. Perhaps the most notable part of the government’s response was a proposal that the documents all be scanned and hosted in a secure server visible to both parties, which would maintain the Department of Justice’s access to the documents—something not specifically provided by Cannon’s order, which would have left the documents completely out of the government’s reach for the duration of this process.
But the other interesting point in the government’s response was that it mentioned Dearie had already proposed an overall plan for dealing with the documents and a timetable for completion. That timetable apparently calls for everything to be wrapped up neatly by Oct. 7, rather than the Nov. 30 (i.e., well after Election Day) deadline that Cannon set in her proceedings.
On Monday evening, Trump’s law firm provided its own response (classily sent on letterhead paper declaring “hands-on counsel, gloves off litigation”). That response more acknowledges that this isn’t the time or place to object to Dearie’s proposed plan … then it objects to everything about Dearie’s proposed plan. The first thing it asks is that all the deadlines be extended, and that everyone take a break for a couple of weeks, just to make sure that new schedule is long enough. Trump’s team wants two weeks just to evaluate 64 documents. Dearie, who has been special master in other cases, knows this is ridiculous. His schedule expects to move through hundreds of documents a day.
Then the subject flips to a complaint that Dearie wants Trump’s team to state whether or not he has actually declassified any documents. They don’t want to do that. Because if they do it means Dearie will have made Trump give up “a defense to the merits of any subsequent indictment.”
In other words, they don’t want to say whether, or how, Trump declassified any material. Because it leaves him open to charges.
However, no matter how Trump’s team may claim Dearie has no reason to ask this, it’s clearly at the heart of his role as special master. After all, in her stay of the government’s request for continued access to the documents for use in criminal proceedings, Cannon wrote that she was denying the government specifically because the government request was based on two claims: that Trump had classified documents, and that he had no claim of privilege over those documents. Cannon stated that she wasn’t willing to accept the government claims without “further review by a Special Master.”
And that’s exactly what Dearie is now trying to do: determine how Trump could have any plausible claim of privilege to classified documents, including such highly classified documents as nuclear secrets of a foreign nation. It’s natural that the first thing Dearie wants to discuss is Trump’s repeated public declaration that he declassified these documents.
There’s one other section in the letter from Trump’s attorney that is pretty extraordinary, even if it does seem esoteric on the surface.
… While the Plaintiff is, of course, willing to brief anything ordered by the Court under the auspices of the Special Master, we are concerned that the Draft Plan directs the Plaintiff to address whether Rule 41(g) litigation should be litigated under Case No. 9:22-MJ-08332-BER. The Plaintiff respectfully sees no indication the District Court planned to carve out related litigation for a merits determination by the issuing magistrate for the warrant in question.
In other words, Dearie asked Trump’s team to justify why all of this hadn’t been the subject of the court of Judge Bruce Reinhart, who not only signed the search warrant, but already bent over backwards in attempts to address issues about transparency. Why, Dearie wanted to know, are you asking a special master to deal with issues that should have been handled in Reinhart’s court?
It’s a very good question. Trump’s team doesn’t want to answer.
There’s one other big thing to note concerning the reply by Trump’s attorneys: Threats. Almost every paragraph of the reply drops Cannon’s name or makes reference to how Trump’s team doesn’t believe that what Dearie is asking for fits with what Cannon wanted.
On the timeline, “we provide below an informal ‘grid’ of party obligations under Judge Cannon’s order and possible deadlines” that stretches everything to the last possible date. On asking why Trump’s team went court shopping, “none of the District Court’s Orders have ever indicated that this was even a consideration.” And on asking Trump about declassification, there’s a closing note that Dearie would be getting this “without such a requirement being evident in the District Court’s order.”
Dearie was Trump’s pick for special master. The reason Trump’s team put Dearie on the list of possible special masters is simply because Dearie was on the FISA court when the warrant for Carter Page was issued, and Trump assumes that Dearie would be as angry as he is about subsequent issues that have surfaced with information leading to those warrants.
In short: Trump picked Dearie because Trump assumed Dearie would also be angry at the FBI and ready for revenge.
Cannon picked Dearie because Trump picked Dearie. But Cannon’s order also made it clear that she could fire Dearie at any point, and without cause, if it turned out he didn’t suit Trump’s purpose.
The Special Master shall be discharged or replaced only upon order of this Court. The Court reserves the right to remove the Special Master.
Trump’s team is making none-too-subtle reference to this line every time they reply to Dearie with a claim that he’s asking for something that “the District Court” didn’t require. They want Dearie to toe the line or know that they’ll ask Cannon for him to be canned.
Based on everything that’s happened so far, there’s a good chance Dearie won’t be there to see this thing to the end. Which will generate more delays. Which is exactly what Trump wants.
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Good judges are more important now than ever. In some states, judges are on the ballot this November. Tune in to this week’s The Downballot to listen to Justice Richard Bernstein talk about what being on the Michigan Supreme Court has been like, and how his re-election campaign is shaping up.