Special Master Expresses Skepticism of Declassification Claims by Trump’s Lawyers

[maestrob]

The former president insists he shouldn’t have to state in a legal proceeding that he declassified the documents, while casting doubt on their status.

By Alan Feuer and Charlie Savage
Sept. 20, 2022
A federal judge expressed skepticism on Tuesday about the efforts by former President Donald J. Trump’s legal team to avoid offering any proof of his claims that he had declassified sensitive government documents that were seized from his Florida estate last month.

The statements by the judge, Raymond J. Dearie, who is acting as a special master reviewing the seized materials, were an early indication that he may not be entirely sympathetic to the former president’s attempts to bog down the judge’s evaluation with time-consuming questions over the classification status of some of the documents.

“My view is, you can’t have your cake and eat it too,” Judge Dearie said at a hearing called to determine the process he would use to do a sweeping review of materials seized from Mr. Trump.

Judge Dearie, who had been suggested for the role by Mr. Trump’s legal team, was referring to a set of sometimes confusing arguments made by that team as it seeks to limit or delay the Justice Department’s criminal investigation.

Days after the extraordinary search of Mr. Trump’s estate, Mar-a-Lago, the former president made public statements claiming that he had in fact declassified some of the seized records, suggesting that the Justice Department had no case against him for illegally retaining sensitive government material. But neither he nor his lawyers have ever made those same assertions in court — or in court papers — where they could face penalties for lying.

Instead, they have danced a fine line between suggesting that, as president, Mr. Trump had the authority to declassify the documents, while remaining silent on the issue of what he actually did — or did not do. At the same time, Mr. Trump’s lawyers have pursued another line of argument, telling Judge Dearie that he should not simply take the Justice Department’s word that some of the seized records are classified, as prosecutors claim.

At his first hearing as special master, Judge Dearie seemed to cut through this confusing web, telling Mr. Trump’s lawyers in direct terms that he was likely to deem the documents classified — unless they offered evidence to the contrary.

That prompted one of the lawyers, James Trusty, to say that Mr. Trump’s legal team might in the future offer that sort of evidence — in witness statements, for example — but that to do so now would telegraph its legal strategy to the government.

While Judge Dearie was open to the notion that Mr. Trump’s lawyers might at some point mount a declassification defense, he seemed displeased that they were casting doubt on the government’s assertions about the classification status of the documents without backing up their claims with evidence.

In addition to the documents case, Mr. Trump is facing several civil and criminal investigations into his business dealings and political activities.


Judge Dearie was appointed as a special master last week by a federal judge in Florida, Aileen M. Cannon, who ordered him to perform by Nov. 30 a series of tasks related to the documents. He is responsible for settling the classification status of about 100 of the records seized from Mar-a-Lago. He has also been given the job of reviewing a larger trove of about 11,000 documents and determining if any are protected by either attorney-client or executive privilege.

Almost everything about Judge Dearie’s appointment is unusual — including the fact that he held the hearing on Tuesday in his own courtroom in Federal District Court in Brooklyn even though the lawyers arguing before him were based in Washington and Florida, where Mr. Trump initially requested a special master.

“I realize that I’ve dragged you all to Brooklyn, New York,” the judge said as the hearing began, adding that he hoped to keep such inconveniences at a minimum.

It was also somewhat unusual that Judge Dearie’s work was moving forward even as the Justice Department waited to get a ruling from an appeals court that could directly affect the case. On Friday, prosecutors asked the U.S. Court of Appeals for the 11th Circuit in Atlanta to allow them to resume using the 100 classified documents in their investigation of whether Mr. Trump had illegally kept national defense information at Mar-a-Lago or obstructed repeated efforts by the government to retrieve the records.

On Tuesday, Mr. Trump’s lawyers filed their own papers to the same appeals court, making some of the same arguments they had made before Judge Dearie. They claimed, for example, that the Justice Department had not proved that the documents it had deemed as classified continued to be classified and hinted that Mr. Trump might in fact have declassified them.

“The government again presupposes that the documents it claims are classified are, in fact, classified and their segregation is inviolable,” the lawyers wrote. “However, the government has not yet proven this critical fact. The president has broad authority governing classification of, and access to, classified documents.”

But apparently undercutting that argument, Mr. Trusty told Judge Dearie at the hearing that he wanted some of his legal partners to get expedited top secret security clearances so that they, too, could view the documents. Mr. Trusty said he already had a top-secret clearance from another case.

Complicating the matter even further, Julie Edelstein, a lawyer for the Justice Department, told Judge Dearie that a handful of the documents at issue were so secret that even Mr. Trusty’s clearance might not be enough.

Mr. Trusty responded that “it was kind of astounding” that the government would seek to keep Mr. Trump’s legal team from seeing some of the classified material in the case. They needed to see it all, he said, to determine whether the government had acted properly by removing it during the search of Mar-a-Lago.

Much of the hearing was devoted to more mundane matters of scheduling, as Judge Dearie sought to move the document review along at a brisk pace. He told the parties that they needed to agree by Friday on a vendor that would handle the task of digitizing the large trove of material so that the government can share it with Mr. Trump’s lawyers.

In a letter to Judge Dearie submitted on Monday, Mr. Trusty said that the schedule set forth for the review was a bit aggressive. Judge Dearie had ordered both sides in the case to inspect the records and offer their thoughts about whether the documents were privileged or unprivileged, or belonged to the government or Mr. Trump, by Oct. 7.

“We respectfully suggest that all of the deadlines can be extended to allow for a more realistic and complete assessment of the areas of disagreement,” Mr. Trusty wrote.

In court on Tuesday, Judge Dearie acknowledged Mr. Trusty’s concerns but said he would push the case forward.

“We are going to proceed,” he said, “with what I call responsible dispatch.”

https://www.nytimes.com/2022/09/20/us/p ... ments.html

[barney]

Just as I was despairing again about the US justice system amid all the Trump-appointed judges and the corrupt politically motivated decision to grant a Special Master, along comes Dearie to restore a tentative faith. Trump WILL end up in jail eventually; he should be there now.

[Ricordanza]

Two further developments:

A three judge panel of the 11th Circuit Court of Appeals has reversed the district court judge on the issue of reviewing the classified documents. Two of the three judges are Trump appointees.

In a recent TV interview (sorry, I don't have the link), Trump said that there is no process necessary to declassify documents; he can declassify documents by "thinking about it." Trump's lawyers have presented some strange arguments in court, but I'm sure that they won't go so far as to present this laugher before a judge.

[jserraglio]

Trump said that there is no process necessary to declassify documents; he can declassify documents by "thinking about it." Trump's lawyers have presented some strange arguments in court, but I'm sure that they won't go so far as to present this laugher before a judge.

They'd be wrong on three counts: the facts, the law, and Trump's capacity to do it.

[lennygoran]

They'd be wrong on three counts: the facts, the law, and Trump's capacity to do it.
[/quote]

Well let's not forget his capacity to engage in the art of the deal-or is the art of the steal! Regards, Len

[jserraglio]

They'd be wrong on three counts: the facts, the law, and Trump's capacity to do it.

Well let's not forget his capacity to engage in the art of the deal-or is the art of the steal! Regards, Len

A lot of folks in Hicksville would consider it an honour to have The Donald pick their brains, such as they are, and their pockets.

[lennygoran]

A lot of folks, Deplorables come to mind, consider it an honor to have The Donald pick their brains, such as they are, and their pockets.

Joe, any guess on how many realize it's him stealing but don't care vs. how many actually belive all he says-I wonder about that? No matter what we sure can't let them close down democracy! Regards, Len

[jserraglio]

A lot of folks, Deplorables come to mind, consider it an honor to have The Donald pick their brains, such as they are, and their pockets.

Joe, any guess on how many realize it's him stealing but don't care vs. how many actually belive all he says-I wonder about that? No matter what we sure can't let them close down democracy! Regards, Len

No clue. It's a left-brain, right-brain thing. Hard-right hominin brains appear to be hay-wired, and not just b/c they tend to hail from Hicksville.

[Ricordanza]

Hard-right hominin brains appear to be hay-wired, and not just b/c they tend to hail from Hicksville.

To my Ohio friend: Just so you know, Hicksville is a real town in Long Island, New York (and it's the home town of Billy Joel):

https://en.wikipedia.org/wiki/Hicksville,_New_York

[jserraglio]

Thanks, I’m a fan. I’ve even used his song lyrics in an IB Language course.

[barney]

And Donald thought to himself: "Let them be declassified", and lo it was so.
Donald really does think he's God.

[maestrob]

And Donald thought to himself: "Let them be declassified", and lo it was so.
Donald really does think he's God.

So do 74 million people who voted for him in 2020.

Never forget.

[barney]

And Donald thought to himself: "Let them be declassified", and lo it was so.
Donald really does think he's God.

So do 74 million people who voted for him in 2020.

Never forget.

I can't forget, Brian. It baffles me every day.

[maestrob]

‘Giant Backfire’: Trump’s Demand for Special Master Is Looking Like a Mistake

The former president failed to derail the criminal investigation into his hoarding of sensitive documents and is stuck paying for a costly process that threatens to undermine his public claims.


By Charlie Savage
Sept. 28, 2022
WASHINGTON — Former President Donald J. Trump’s request that a judge intervene in the criminal investigation into his hoarding of government documents by appointing a special master increasingly looks like a significant blunder, legal experts say.

“Maybe from Trump’s point of view, creating delay and chaos is always a plus, but this has the feel of a giant backfire,” said Peter M. Shane, a legal scholar in residence at New York University and a specialist in separation-of-powers law.

Initially, Mr. Trump’s demand that an outside arbiter sift through the materials the F.B.I. seized from his Florida estate seemed to turn in his favor. His lawsuit was assigned to a judge he had appointed, Aileen M. Cannon of the Southern District of Florida, who surprised legal experts by granting his request.

In naming a special master suggested by Mr. Trump’s lawyers, she effectively froze the Justice Department’s investigation and gave the arbiter a broad mandate. The judge, Raymond J. Dearie of Federal District Court for the Eastern District of New York, would filter the materials not just for attorney-client privilege, which is not unusual, but also for executive privilege, which is unprecedented.

But Mr. Trump’s apparent triumph would prove short-lived. An appeals court ruling last week and a letter the Justice Department filed late Tuesday about subsequent complaints his legal team had filed under seal to Judge Dearie suggest that the upsides to obtaining a special master are eroding and the disadvantages swelling.

James Trusty, a lawyer for Mr. Trump, did not respond to a request for comment. But late Wednesday, the Trump team refiled its complaints to Judge Dearie — a letter dated Sept. 25 — in unsealed form, bringing the tensions more clearly into view.

The appeals court last week 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 had 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 Mr. Trump. Potential crimes include unlawful retention of national security secrets, obstruction and defying a subpoena demanding all sensitive records that remained in his possession.

But the Justice Department acquiesced for now to the remainder of the special master process, meaning that an outside arbiter would still assess some 11,000 unclassified records and other items seized from Mr. Trump’s Florida compound, Mar-a-Lago. A second letter from Mr. Trusty on Wednesday said that amounts to nearly 200,000 pages of material.

Since that review is no longer delaying or diverting the criminal inquiry, it is not clear what benefits remain for Mr. Trump.

For one, a special master will cost a lot of money. Judge Cannon rejected Mr. Trump’s proposal that taxpayers should foot half the bill of the review, instead saying he would be solely responsible.

That includes the full cost of a vendor who will scan all the materials, as well as support staff for Judge Dearie, like an assistant who bills $500 an hour. Mr. Trump will also have to pay his own lawyers’ fees as they filter thousands of pages of records and then litigate disputes about which ones can be withheld as privileged.

And far from indulging Mr. 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 Mr. Trump to submit by Friday a declaration or affidavit verifying the inventory or listing any items on it “that plaintiff asserts were not seized” in the search.

But if Mr. Trump acknowledges that the F.B.I. 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 Mr. Trump’s lawyers to verify or object to the inventory also effectively means making them either affirm in court or disavow a claim Mr. Trump has made in public: his accusation that the F.B.I. 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 Mr. Trump’s legal team “to put up or shut up,” said Julie O’Sullivan, a Georgetown University professor of white-collar law.

“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,” Ms. 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.”

In its Sept. 25 letter to Judge Dearie, Mr. Trump’s legal team argued that Judge Cannon had not authorized the special master to seek a declaration verifying the inventory from Mr. Trump or his representatives. The lawyers also said they would need to see the documents marked as classified to provide any such certification.

Another tension centers on Mr. 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 Mr. 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 Mr. Trump’s lawyers had “resisted providing any evidence that he had declassified any of these documents.”

Mr. Trump, through his lawyers, is chafing at other orders from the special master, their Sept. 25 letter shows.

For example, Judge Dearie has said they must categorize each document Mr. Trump claims is subject to privilege. They are to say whether they mean attorney-client or executive privilege. And if they claim executive privilege, then they must also 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 Mr. 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 in their letter, Mr. Trump’s lawyers said Judge Dearie was going beyond what Judge Cannon had authorized him to demand of them, and said they “see no basis for segmenting” their executive privilege claims into the two different types he had identified.

For its part, the Justice Department appeared to relish Mr. Trump’s growing discomfort.

“Plaintiff brought this civil, equitable proceeding,” it wrote in its letter. “He bears the burden of proof. If he wants the special master to make recommendations as to whether he is entitled to the relief he seeks, plaintiff will need to participate in the process” that Judge Dearie laid out.

https://www.nytimes.com/2022/09/28/us/p ... lda-unique

[lennygoran]

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 Mr. Trump.

Brian now I see Cannon is at it again overruling Dearie on his attempt to get trump to put up or shut up! Regards, Len