At this point in the FBI espionage investigation, everyone agrees that Trump and his legal team blundered badly by insisting on a special master and in putting forward the name of respected and experienced Federal Judge Raymond Dearie. His standard strategy-- chaos and delay-- isn’t working, quite the contrary.
Late yesterday, Charlie Savage reported that “An appeals court ruling last week and a letter the Justice Department filed late Tuesday about subsequent complaints his legal team has apparently filed under seal to Judge Dearie suggest that the upsides to obtaining a special master are eroding and the disadvantages swelling. The appeals court freed the Justice Department to resume using about 100 documents marked as classified in its investigation, while telegraphing that the court thought Judge Cannon likely erred by appointing a special master. In blocking part of Judge Cannon’s order, the appeals court panel, including two Trump appointees, allowed investigators to again scrutinize the material that poses by far the gravest legal threat to Trump. Potential crimes include unlawful retention of national security secrets, obstruction and defying a subpoena demanding all sensitive records that remained in his possession.” And Trump is being billed the entire cost of the special master, that will run into the hundreds of thousands of dollars.
And far from indulging Trump, as his lawyers likely hoped in suggesting his appointment, Judge Dearie appears to be organizing the document review in ways that threaten to swiftly puncture the former president’s defenses.
For example, the judge has ordered Trump to submit by Friday a declaration or affidavit that lists any items on the inventory “that plaintiff asserts were not seized” in the search.
But if Trump acknowledges that the FBI took any documents marked as classified from his personal office and a storage room at Mar-a-Lago, as the inventory says, that would become evidence that could be used against him if he were later charged with defying a subpoena.
Requiring Trump’s lawyers to verify or object to the inventory also effectively means making them either affirm in court or disavow a claim Trump has made in public: his accusation that the FBI planted fake evidence. While it is not a crime to lie to Fox News viewers or on social media, there are consequences to lying to a court.
Essentially, Judge Dearie is telling Trump’s legal team “to put up or shut up,” said Julie O’Sullivan, a Georgetown University professor of white-collar law.
Late Tuesday, the Justice Department indicated to Judge Dearie that Trump’s lawyers were balking at his request that their client verify the property inventory at this stage, before the documents could be categorized or reviewed for privilege. They apparently expressed such objections in a document filed under seal.
“They thought it was a win to win the first battle, but they didn’t think through what winning that battle would mean with any reputable judge who is appointed as special master,” Sullivan said. “They can’t anticipate that every judge will give them a complete pass despite the law. It was a political or a public relations strategy, not a legal one.”
Another issue centers on Trump’s public insistence that he declassified everything he took to Mar-a-Lago, a claim for which no credible evidence has emerged.
His lawyers have not repeated that claim in court. They have instead merely insinuated that he might have done so by emphasizing that a president has broad declassification powers without asserting that he actually used them on the files.
At a hearing this month, Judge Dearie said that Trump’s legal team would need to submit evidence of any declassification— like a sworn declaration or affidavit— or he would conclude that they remained classified.
“I guess my view of it is,” he said, “you can’t have your cake and eat it.”
In exempting the documents marked as classified from the special master’s review, the appeals court also focused on the disconnect. There was “no evidence that any of these records were declassified,” the three-judge panel wrote, noting that Trump’s lawyers had “resisted providing any evidence that he had declassified any of these documents.”
The Justice Department’s letter indicated that Trump, through his lawyers, is chafing at other orders from the special master.
For example, Judge Dearie has said they must categorize each document Trump claims is subject to privilege. They are to say whether they mean attorney-client or executive privilege. If they claim executive privilege, then they must distinguish between records that are merely shielded from disclosure to people outside the executive branch and those the executive branch itself supposedly cannot review. They must also explain why each document qualifies for such status.
Judge Dearie is effectively trying to force Trump’s lawyers to confront a weakness in their theory that executive privilege is relevant to the case. Many legal experts doubt a former president can invoke the privilege against the wishes of the current president, preventing the Justice Department from reviewing executive branch materials in a criminal investigation.
But for now, Trump’s legal team evidently wants to say only that various items are privileged, leaving it at that.
For its part, the Justice Department appeared to relish Mr. Trump’s growing discomfort.
“Plaintiff brought this civil, equitable proceeding,” it wrote. “He bears the burden of proof.”
And the burden of proof in a court is different from the burden of proof on Judge Jeanine’s standup comedy show on Fox. Also... perjury is different than gaslighting and has actual real life consequences.