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

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 looks increasingly like a blunder, legal experts say.

“Perhaps from Trump’s point of view, creating delay and chaos is always an advantage, but this has the feel of a huge failure,” said Peter M. Shane, a legal scholar in residence at New York University and a specialist in separation of rights. – power law.

Initially, Trump’s demand that an outside arbitrator review materials the FBI seized from his Florida property appeared to backfire. 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 her request.

By appointing a special master suggested by Trump’s lawyers, he effectively froze the Justice Department investigation and gave the arbitrator a broad mandate. The judge, Raymond J. Dearie of the United States District Court for the Eastern District of New York, would filter the materials not only for attorney-client privilege, which is not unusual, but also for executive privilege, which is unprecedented.

But Trump’s apparent triumph would be short-lived. An appeals court ruling last week and a letter the Justice Department submitted Tuesday night on subsequent complaints that his legal team apparently filed under seal with Judge Dearie suggest that the advantages of obtaining a special master are eroding and the disadvantages are increasing.

An attorney for Trump did not respond to a request for comment.

The appeals court freed the Justice Department to resume use of about 100 documents marked classified in its investigation, while telegraphing that the court thought Judge Cannon was probably wrong in appointing a special teacher.

By blocking part of Judge Cannon’s order, the appeals court panel, including two Trump appointees, allowed investigators to re-examine material that poses by far the gravest legal threat to Trump. Potential crimes include unlawful withholding of national security secrets, obstruction, and defiance of a subpoena demanding all confidential records that remained in his possession.

But the Justice Department has agreed to the rest of the special master process for now, meaning an outside arbitrator would still evaluate some 11,000 unclassified records and other items seized from Trump’s Florida compound, Mar-a-Lago.

Since that review no longer delays or diverts the criminal investigation, it’s unclear what benefits remain for Trump.

For one thing, a special master will cost a lot of money. Judge Cannon rejected Trump’s proposal that taxpayers should foot half the bill for the review, saying instead that 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, such as a assistant billing $500 an hour. Trump will also have to pay his own attorneys’ fees as they sift through thousands of pages of records and then litigate disputes over which can be retained as privileged.

And far from pleasing Trump, as his lawyers probably hoped in suggesting his appointment, Judge Dearie appears to be organizing the document review in a way that threatens to quickly pierce the former president’s defenses.

For example, the judge ordered Mr. Trump to file by Friday an affidavit listing any items in the inventory “that the plaintiff claims were not seized” in the search.

But if Trump acknowledges that the FBI took all the documents marked 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 indicted. . with defying a subpoena.

Requiring Trump’s lawyers to verify or challenge the inventory also effectively means having them affirm in court or deny a claim Trump has made in public: his allegation that the FBI planted false evidence. While it’s not a crime to lie to viewers on Fox News or on social media, there are consequences for lying to a court.

Essentially, Judge Dearie is telling Trump’s legal team to “suck it up or shut up,” said Julie O’Sullivan, a Georgetown University administrative law professor.

On Tuesday night, the Justice Department told Judge Dearie that Trump’s lawyers objected to his request that his client check the property’s inventory at this stage, before the documents could be classified or privilege reviewed. They apparently expressed such objections in a document submitted under seal.

“They thought it was a victory to win the first battle, but they didn’t think about what it would mean to win that battle with any big-name judge who is appointed as a special teacher,” Ms. Sullivan said. “They cannot anticipate that all the judges will give them a full pass despite the law. It was a political or public relations strategy, not a legal one.”

Another problem centers on Trump’s public insistence that he declassified everything leading up to Mar-a-Lago, a claim for which no credible evidence has emerged.

His lawyers have not repeated that claim in court. Instead, they have simply hinted that he might have by emphasizing that a president has broad disclosure powers without claiming that he actually used them on the files.

At a hearing this month, Judge Dearie said Trump’s legal team would have to present evidence of any declassification, such as an affidavit or affidavit, or it would conclude they remained classified.

“I guess my point of view is,” he said, “you can’t have your cake and eat it.”

In exempting documents marked as classified from special master review, the appellate court also focused on the disconnect. There was “no evidence that any of these records have been declassified,” the three-judge panel wrotenoting that Trump’s lawyers had “resisted providing evidence that he had declassified any of these documents.”

The letter from the Department of Justice indicated that Mr. Trump, through his lawyers, is irritated by further orders from the special master.

For example, Justice Dearie has said that they must categorize every document that Mr. Trump claims is subject to privilege. They should say whether they are referring to attorney-client or executive privilege. If they claim executive privilege, then they must distinguish between records that are simply protected from disclosure to people outside the executive branch and those that the executive branch itself purportedly cannot review. They must also explain why each document qualifies for such status.

Judge Dearie is 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 that a former president could invoke the privilege against the wishes of the current president, which prevents the Justice Department from reviewing executive branch materials in a criminal investigation.

But for now, the Trump legal team evidently just wants to say that various items are privileged, and I’ll leave it at that.

For its part, the Justice Department seemed to enjoy Trump’s growing discomfort.

“Plaintiff initiated this equitable civil proceeding,” he wrote. “He has the burden of proof.”