Government

Trump Whines That Special Master Won't Follow Rulebook Magicked Out Of Thin Air By Trial Judge

Dog that caught the car.

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President Trump Unveils His Infrastructure Initiative With State And Local Officials In The State Dining Room Of White HouseDonald Trump’s lawyers took to the federal docket last night to chastise the Justice Department for its “blithe dismissal of practical experience.” It is simply impossible, they insist, for any document processing vendor to comply with the compressed timeline sought by the government and endorsed by Judge Dearie, the special master chosen by Trump himself.

This lecture of career prosecutors, not to say the court, might be more credible if it wasn’t coming from the dream team which took three tries to docket a compliant pro hac vice motion and needed a mulligan to change an attorney’s email address with the court. AHEM.

The latest dustup comes in response to Judge Dearie’s Case Management Plan for sorting through documents seized from Mar-a-Lago on August 8. On Tuesday, prosecutors sent a letter to Judge Dearie responding to Trump’s undocketed objections to the Plan. From the letter, it was clear that the former president disagreed both with the pace and scope of the special master’s proposed course.

Trump’s counsel responded yesterday in typically Trump-y fashion:

The Government also uses the opportunity of asking for an extension of deadlines to lecture Plaintiff’s counsel with conclusory and antagonistic comments regarding counsel’s privately filed objections to the Amended Case Management Plan. DOJ continues to mistake itself as having judicial authority. Its comments are not argument, but proclamations designed to steamroll judicial oversight and the Plaintiff’s constitutional rights.

They also published the objections, along with this rather odd explanation as to how the communication failed to wind up on the public record:

Finally, as the Government chose to include in its public filing references to our objections to the Amended Case Management Plan (which was sent to chambers directly as a letter), a copy of our letter is enclosed herewith, for consistent treatment and to preserve those objections before Your Honor.

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UH HUH.

In short, Trump and his lawyers appear to be very unhappy with the way this whole special master thing is working out for them. They object to the speed of the process, claim that Judge Dearie is exceeding his appointment order, and unbelievably are still objecting to the removal of documents bearing classified markings from the special master process, even after the Eleventh Circuit said NFW.

“Plaintiff currently has no means of accessing the documents bearing classification markings, which would be necessary to complete any such certification by September 30, the currently proposed date of completion,” they write. This is in response to the special master’s demand that the lawyers say under oath if anything in the inventory of items seized was planted by the FBI, as Trump and his minions have frequently alleged.

“The Appointing Order contemplated no corresponding declaration or affidavit by Plaintiff, and because the Special Master’s case management plan exceeds the grant of authority from the District Court on this issue, Plaintiff must object,” they write of the order which would bone Trump’s ability to lob baseless accusations at the FBI.

They also object to Judge Dearie’s plan for them to get really specific about exactly what privilege they’re asserting. While Judge Cannon’s appointment order called for Trump to assert attorney-client and executive privilege over specific records, Judge Dearie mandates further clarification as to whether each record is attorney-client privileged; attorney work product; executive privileged, and thus shielded from disclosure to parties outside the executive branch; and executive privileged, and theoretically shielded from disclosure within the executive branch.

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This last category would be a brazen claim requiring Trump to assert that his residual privilege years after leaving office allows him to override the incumbent president’s waiver of privilege, the plain language of the Presidential Records Act which instructs the Archives to disclose records in response to lawful process, and binding precedent from United States v. Nixon, 418 U.S. 683, (1974) that an invocation of privilege cannot be used to thwart a criminal investigation and must give way to the government’s ‘demonstrated, specific need’ for the records.

It’s no wonder that his lawyers are loath to make this argument, and so, they’re just refusing to do it.

Consistent with the appointment order [ECF 91], Plaintiff’s counsel intends to allocate documents into the four categories identified authorized by the district court. However, as the appointment order also authorizes you to make recommendations regarding executive privilege (ECF 91 at 2b.) we will also provide assertions and bases for that privilege as well, but we see no basis for segmenting that particular privilege as described in Paragraph II c and d of the Amended Plan.

Similarly, they don’t want to be forced to explain why this turkey shouldn’t go back to US Magistrate Judge Bruce Reinhart if and when the plaintiff ever gets around to filing a Rule 41 motion for return of property. In a line of reasoning which was thoroughly rubbished by the Eleventh Circuit, Judge Cannon bootstrapped herself into equitable jurisdiction over this case by employing the creative fiction that Trump’s wafer thin complaint was functionally a Rule 41 motion. She then instructed Judge Dearie to entertain such a motion if and when it ever transubstantiated into the body of a living document. But having lucked into Judge Cannon’s courtroom, the former president isn’t about to let some geezer judge whom he’s paying send him back to Palm Beach.

The District Court’s decision to exercise jurisdictional authority over matters surrounding the Mar-a-Lago search warrant was a hotly contested component of the litigation to date, as was the establishment of a Special Master review. There is no indication in the appointment order that the District Court is contemplating a carve out of related litigation for a merits determination by the issuing magistrate for the warrant in question. In the absence of a clear directive from the District Court on this issue, we respectfully suggest the briefing requirement be withdrawn from your final Plan.

Cool.

As reporter Marcy Wheeler surmised yesterday, Trump is setting up a conflict between Judges Cannon and Dearie, perhaps hoping that the trial court will fire the special master, or at the very least sharply rein him in. But the government is making darn sure that, if that happens, it’s going to happen in public where the Eleventh Circuit can see it.

And while we’re playing this game of Kremlinology, we’d note that, just days after CNN reported that Trump had “sidelined” his brand new $3 million lawyer Chris Kise, his name did not appear on the September 28 letter, which was signed by James Trusty, Lindsey Halligan, and Evan Corcoran. It did, however, appear on the September 27 objection to the case management plan. So, make of that one what you will.

Trump v. United States [Docket via Court Listener]

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

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