Trump Lawyers Shocked To Find That Special Master Review Process Involves Review. And Process. And A Special Master Who Won't Do As He's Told. - Above the Law

For someone who demanded transparency regarding the search warrant executed at his country club on August 8, Donald Trump is certainly being cagey in his dealings with the special master he himself demanded to assure the public that all was on the up and up. Luckily we have the government’s response to the former president’s latest sealed filing, which is how we know that none of the proposed discovery vendors will agree to work for Donald Trump. Womp womp.

“Plaintiff informed us this morning that none of the five document-review vendors proposed by the government before last Tuesday’s preliminary conference were willing to be engaged by Plaintiff,” prosecutors write, proposing that the government will engage the vendors directly, and submit invoices to Trump.

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“The government expects Plaintiff to pay the vendor’s invoices promptly when rendered,” they add tersely.

The letter motion, originally flagged by reporter Marcy Wheeler, goes on to respond to Trump’s objections to Judge Dearie’s Amended Case Management Plan. The former president’s lawyers filed those objections under seal, but the government responded on the public docket, noting that “Although the three objections are different, all are without merit.”

“First, contrary to Plaintiff’s objection, the verification required by Plaintiff of the Detailed Property Inventory is a condition precedent to the document categorization and privilege review,” they write. “The Special Master needs to know that that he is reviewing all of the materials seized from Mar-a-Lago on August 8, 2022 – and no additional materials – before he categorizes the seized documents and adjudicates privilege claims.”

Judge Dearie’s first order of business was to put the kibosh on the public allegations by Trump’s lawyers that the FBI planted evidence at Mar-a-Lago by forcing him to specify what if anything from the inventory of seized items was planted. Trump apparently objects to having one of his talking points nuked from orbit by the special master he demanded and is now paying for.

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Trump’s second objection appears to be over the slightly different rubric imposed by Judge Dearie from the one set out by Judge Cannon in the order appointing him.

The trial judge called for the parties to divide evidence into four buckets: Personal items and documents not claimed to be privileged; Personal documents claimed to be privileged; Presidential Records not claimed to be privileged; and Presidential Records claimed to be privileged.

In contrast, the special master called for six buckets: Attorney-client communication privilege; Attorney work product privilege; Executive privilege that prohibits review of the document within the executive branch; Executive privilege that prohibits dissemination of the document to persons or entities outside the executive branch; Presidential Records; and Personal records.

It’s not difficult to guess why Trump would be pissed at having show his cards here regarding executive privilege. Because everyone here agrees that anything which could be covered by executive privilege is definitionally property of the government and should be returned to the custody of the National Archives. The Supreme Court already refused to intervene to allow Trump to use executive privilege to shield his presidential records from the January 6 Select Committee — i.e. “dissemination of the document to persons or entities outside the executive branch.” There’s never been a successful invocation of privilege by a former president as against the executive branch, and, as the government points out citing United States v. Nixon, 418 U.S. 683, (1974), “any assertion of the qualified executive privilege over the Seized Materials would be overcome by the government’s ‘demonstrated, specific need’ for such Seized Materials in its ongoing criminal investigation.”

Judge Dearie’s order forces Trump to make that losing argument now, rather than punting and perhaps asserting privilege as an affirmative defense in any criminal case. And it’s not difficult to infer that Trump’s lawyers are relying on stringing out this period of strategic ambiguity as long as possible. Indeed, before the Eleventh Circuit took the classified documents off the table, they made that very argument in open court, objecting to the special master’s insistence that they would need to specify which documents Trump was claiming to have telekinetically declassified via mystical Kabbalah or whatever fakakta theory he’s floating these days.

“We have not been in a position, nor should we be at this juncture, to fully disclose a substantive defense relating to declassification until we see the documents and have an opportunity to explore our options under a filing under §41(g),” Trump’s lawyer James Trusty complained.

And speaking of “a filing under §41(g),” not to mention strategic ambiguity, Trump’s third objection to a “briefing on a particular point of law” appears to be to Judge Dearie’s instruction that, at the conclusion of the review, the parties should submit briefs “addressing the merits of the Rule 41(g) motion, [and that] Plaintiff’s brief should address specifically whether the motion may properly be resolved in this action or must instead be decided as part of the docket in the action in which the relevant warrant was issued.”

Judge Cannon bootstrapped herself into jurisdiction in this civil case through the creative fiction that Trump’s complaint amounted to a motion for return of property under Rule 41 of the Federal Rules of Criminal Procedure. Which would be wacko enough in a pre-indictment proceeding, while the investigation is ongoing, and where there’s been no challenge to the sufficiency of the warrant. But Trump has consistently taken the position that he needs the special master review process so that he’ll be able to properly plead a Rule 41 motion in the future.

As Trusty argued at the September 20 hearing:

The point is, from our perspective, is it’s premature. What we’re going to be determining through this process of actually examining documents and sifting through and creating and narrowing disputes before you as the special master. At the same time, we’ll be developing or not theories for why or why not a Rule 41(g) motion should be filed. If a Rule 41(g) motion is filed, it relies on things like the Presidential Records Act or general warrant allegation in violation of the Particularity Clause of the Fourth Amendment those would be independent.

But Judge Dearie is making them put up or shut up. So Trump’s lawyers will have to either make their insane argument that he converted all those secret documents to personal property and is thus entitled to get them back, or they’ll have to concede the point that he was keeping them illegally and in defiance of a subpoena.

And the prosecutors are here for it. “The government will brief that point of law,” they write snarkily. “It behooves Plaintiff to brief that point as well.”

Indeed it does. Not as much as it would have behooved Plaintiff to have kept his mouth shut and avoided this expensive exercise in humiliation. But it’s a bit late for that.

Trump v. United States [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.