Trump Discovers Too Late That, If You Let The DOJ Speak Through Its Filings, You Will Live To Regret It

FAFO.

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(Photo by Drew Angerer/Getty Images)

Let’s all give a round of applause to Fox News host Laura Ingraham, who managed to goad Donald Trump into yet another spectacular own goal in court.

“You gotta have a flurry of motions to respond to the full force of the federal government coming down on one man,” she practically shouted last week as Trump’s former lawyer David Schoen, suggested that there might be perfectly good reasons for the former president to keep his mouth shut after the government executed a search warrant at Mar-a-Lago on August 8 to seize wrongfully retained government property.

“They gotta know that the former president of the United States is taking this very seriously,” Ingraham scoffed. Which is how Trump wound up forcing his lawyers to file that batshit motion last Monday demanding that the court appoint a special master and order the government cease its review of the records seized.

Having lucked onto the docket of Judge Aileen Cannon, a Trump appointee, they were given a mulligan to reshape their insane grievance manifesto into something resembling a legal document. Which they did (sort of) on Friday night, at which point, Judge Cannon leapt into action. On Saturday, she announced her “preliminary intention” to appoint a special master for a privilege review, scheduled a hearing on the matter for Thursday at 1pm, and ordered the government to respond to the motion and produce under seal a detailed receipt inventorying property seized.

At around 11:30pm yesterday, that response hit the docket. And as anyone outside of Fox News could have predicted, it was not good for the former president. A full third of the filing was dedicated to laying out in extraordinarily damning detail how Trump and his lawyers spent a year and a half stonewalling the National Archives (NARA) and the Justice Department while keeping highly sensitive classified information in the pool shed at the president’s private club.

In January, Trump finally coughed up fifteen boxes of presidential records, in which NARA found “184 unique documents bearing classification markings, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET.”

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Upon referral from NARA, the Justice Department sought a grand jury subpoena for any further government records retained by the former president. And on June 2, Trump’s lawyers Evan Corcoran and Christina Bobb handed over one Redweld full of documents, along with a sworn declaration by Bobb and verbal assurances from Corcoran that they’d done “diligent search” for responsive documents and that there were no more classified documents on the premises.

That’s a really f*cking stupid thing to say to a pack of FBI agents chaperoned by Jay Bratt, the head of the DOJ’s Counterintelligence Division, if it’s NOT TRUE. And yet, when those agents came back this month, they found an additional “38 unique documents bearing classification markings, including 5 documents marked as CONFIDENTIAL, 16 documents marked as SECRET, and 17 documents marked as TOP SECRET.” And, contrary to Corcoran and Bobb’s assurances that all the records removed from the White House were in the locked pool shed, when FBI agents searched the “45 Office,” as Trump has rebranded the bridal suite, they found classified documents in desk drawers, commingled with other random crap.

This is how the government came to be in possession of Trump’s passports when the government, pursuant to the terms of the warrant, “seized the contents of a desk drawer that contained classified documents and governmental records commingled with other documents.” Because the location of the records is evidence relevant to crimes involving mishandling of classified information, and goes to prove that Trump himself stashed those classified documents in his desk next to his passport. So much for blaming the General Services Administration for packing up those boxes. Thanks, Laura!

Prosecutors didn’t pull any punches with their legal arguments either, pointing out that a Rule 41 motion for return of personal property is inappropriate here because: (1) much of the property seized belongs to the federal government and not the plaintiff; and (2) you don’t get your personal property back when it’s seized pursuant to a legal warrant executed in good faith, unless you can prove that you would be irreparably injured if it’s not returned.

And speaking of irreparable injury, the government notes that Trump waited a full two weeks to demand a special master to review the seized documents for privilege. At this point there is no preliminary injunction on review to be had, for the simple reason that the government has already looked at all the evidence. The filter team pulled out attorney-client records and sent the classified stuff on to the Director of National Intelligence to conduct a damage assessment of the fallout from the possible dissemination of sensitive government secrets. Interposing a special master at this late date would slow down the DOJ’s ongoing criminal investigation as well as the intelligence review, and is not in keeping with FRCP 53 governing the appointment of special masters, prosecutors argue.

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Although Trump’s motion refers only to “potentially privileged documents,” we know from NARA’s correspondence with Evan Corcoran, the former president sought to assert executive privilege to stop the Justice Department from gaining access to the documents as part of the agency’s criminal investigation of his conduct. In their response, prosecutors go to some lengths to head this off, pointing out that the Archivist gave Trump a month to make specific assertions of privilege over documents handed over in the first tranche, and he failed to do it. Corcoran then made what he described as a “protective assertion” of executive privilege over the whole lot, which the Archivist ignored because Trump is no longer the president.

In fact, there’s a statutory framework for ex-presidents to assert privilege over their presidential papers, and it doesn’t involve making off with them and stashing them in the pool shed. But, more to the point, executive privilege is rooted in the separation of powers. And there is no separation of powers between the executive branch and the DOJ, which is an executive agency:

First, Plaintiff did not convey the seized materials to NARA as required by the PRA. As such, he cannot now maintain that he has a statutory right to make privilege assertions pursuant to that law. Second, even if the PRA process were available to Plaintiff, it does not follow that he could successfully assert executive privilege against the Executive Branch. To the contrary, the PRA makes clear that it does not expand the scope of executive privilege. […] As just discussed, the only time executive privilege was asserted against the Executive Branch by a former President, the Supreme Court rejected it. Nixon v. GSA, supra.

Understanding that Judge Cannon may simply ignore all their arguments, the government requests that, if a special master is appointed, the court impose some stringent parameters. Namely, prosecutors want the remit confined to attorney-client privilege, not executive privilege; the master should have security clearance to view the documents; the review should be completed by September 30; and “because the central disputed issues concern privilege, an issue that courts traditionally decide, there is no need to apply any deferential standard of review to the special master’s determinations.”

Tomorrow’s hearing will feature Trump’s brand new lawyer, former Florida Solicitor General Chris Kise. It’ll be a tall order to turn this pile of chicken shit into chicken salad. But the court seems pretty inclined to accept a shit sandwich, so … we’ll see.

Trump v. United States [Docket via Court Listener]
United States v. Sealed Search Warrant [Docket via Court Listener]

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

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