In preparation for a preliminary hearing before special master Judge Raymond Dearie, prosecutors and Trump’s counsel submitted proposed agendas last night for the review of documents seized at Mar-a-Lago on August 8. Unsurprisingly, the government would like to conclude the process as quickly as possible, and Trump would like to drag it out until the universe collapses under its own weight.
Judge Dearie sought comment from the parties on a non-public Draft Plan, which was probably the first inkling for Team Trump that choosing a seven-year veteran of the FISA court on the cockamamie theory that he hates the FBI and is skeptical of government authority was perhaps not going to work out the way they’d hoped.
Trump’s lawyers appear to be shocked that the special master is wondering why a Rule 41(g) motion for return of property wouldn’t be more appropriately handed by Magistrate Judge Bruce Reinhart, who approved the original warrant.
“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” they argue. “Most importantly, none of the District Court’s Orders have ever indicated that this was even a consideration.”
And while Judge Aileen Cannon was willing to let Trump skate by on a mere suggestion that Trump had declassified the documents at issue, perhaps via astral projection, and even let him get away with saying that these documents might somehow constitute personal property, Judge Dearie seems like he’s having none of it.
“We respectfully submit that the time and place for affidavits or declarations would be in connection with a Rule 41 motion that specifically alleges declassification as a component of its argument for return of property,” Trump’s lawyers protest. “Otherwise, the Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.”
And indeed at this afternoon’s hearing before Judge Dearie Trump’s lawyer Jim Trusty did argue that it would be unfair to force Trump to disclose his affirmative defenses and witnesses to the magical declassification incantation at this stage of the process. But, as the master pointed out, it’s rather having your cake and eating it, too, to sneer at the government’s “purported classifications” without ever making an affirmative statement over whether the documents at issue are or are not classified. Particularly when the documents have classification markings on them, which would rather substantiate the government’s position.
Trusty also threw in some jabs at the National Archives, which he called highly politicized, even making a bizarre reference to former Bill Clinton National Security Advisor Sandy Berger, who was convicted of removing classified material from the National Archives.
Meanwhile, just hours before the hearing, Trump’s lawyers dropped their response to prosecutors’ limited appeal to the Eleventh Circuit. They may appeal other aspects of Judge Cannon’s special master order later, but the instant emergency motion is limited to the parts of her order which force them to disclose classified documents to the special master and Trump’s attorneys, while simultaneously enjoining the government from using them in its criminal investigation. Downplaying the issue as “a document storage dispute that has spiraled out of control,” Trump’s lawyers largely echo Judge Cannon’s denial of stay on this issue to claim that she did not abuse her discretion.
“[T]he District Court’s orders … are a sensible preliminary step toward restoring order from chaos, and this Court should therefore deny the Government’s Motion,” they argue, without explaining exactly what part of a judicially authorized warrant which has never been challenged on Fourth Amendment grounds constitutes “chaos.”
Faced with an affidavit from the deputy head of the FBI’s counterintelligence division that the national security assessment cannot feasibly be separated from the criminal investigation, Trump simply accuses the FBI of lying or deliberately misconstruing Judge Cannon’s order. They similarly insist that there’s been no evidence that the documents are classified, conveniently disregarding the classification markings on them and still refusing to make any affirmative claim that Trump declassified them before leaving the White House. And they make an absolute dog’s breakfast of the Presidential Records Act, which contains both a procedure for an incumbent president to designate a record as personal, and vests ownership of all presidential documents with the National Archives.
“What is clear regarding all of the seized materials is that they belong with either President Trump (as his personal property to be returned pursuant to Rule 41(g)) or with NARA, but not with the Department of Justice,” they huff, seemingly unaware that they’ve just conceded that Trump can have no “possessory interest” in the documents that would allow him to exclude the executive branch from looking at them, much less permit him to hang onto them for 18 months after leaving office.
Trump concludes by conflating his own interest in thwarting a criminal prosecution with the public good, noting that “[t]he investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness.” Which would be ridiculous enough if he wasn’t actually quoting Judge Cannon’s order denying the stay.
So now we wait. For the panel to be designated at the Eleventh Circuit. For the government to appeal any adverse appellate ruling. For Judge Dearie to issue an order directing the review process. For Trump to attack the very special master he proposed for being a Deep State plant. That train is never late!
Trump v. United States [Docket via Court Listener]
Trump Response to Motion for Partial Stay
Liz Dye lives in Baltimore where she writes about law and politics.