Patterico's Pontifications

9/20/2022

Special Master To Trump Lawyers: You Can’t Have Your Cake And Eat It Too

Filed under: General — Dana @ 7:27 pm



[guest post by Dana]

As you know, Donald Trump requested a special master to oversee the review of the documents seized from Mar-a-Lago. He requested that U.S. District Judge Raymond Dearie be appointed to the position. The requests were granted. And today, seeming a bit skeptical about Trump’s declassification claims, Judge Dearie pushed back on Trump’s lawyers. It didn’t go well for them:

Judge Raymond Dearie repeatedly challenged Trump’s lawyers for refusing to back up the former president’s claim that he declassified the highly sensitive national security-related records discovered in his residence.

“My view of it is: you can’t have your cake and eat it,” said Dearie, the “special master” picked by U.S. District Court Judge Aileen Cannon to vet Trump’s effort to reclaim the materials taken by federal investigators.

Trump has argued that the 11,000 documents taken from Mar-a-Lago by the FBI pursuant to a search warrant last month were rightfully in his possession, including about 100 bearing classification markings that suggest they contain some of the nation’s most closely guarded intelligence.

But Dearie bristled at the effort by Trump’s lawyers to resist his request for proof that Trump actually attempted to declassify any of the 100 documents that the Justice Department recovered from his estate. Without evidence from Trump, Dearie said his only basis to judge the classification level of the records was the fact that they all bear markings designating them as highly sensitive national security secrets — including some that indicate they contain intelligence derived from human sources and foreign intercepts.

There is more than a bit of irony here given that the individual that Trump’s team requested to be appointed special master, and was, clearly isn’t going to be taken in by the tactics of Trump’s lawyers. On the contrary. What they had counted on in having Judge Dearie as special master, didn’t happen for them today.

–Dana

23 Responses to “Special Master To Trump Lawyers: You Can’t Have Your Cake And Eat It Too”

  1. I guess, put up or shut up (and let the chips fall).

    Dana (1225fc)

  2. It is funny how tunes change when Trumpy loyalists are put under oath or when his lawyers are acting as officers of the court. Things like declassification hoaxes and election-fraud hoaxes get exposed.

    Paul Montagu (753b42)

  3. It’s fascinating to contrast what Trump says in public versus what his lawyers actually argue in court.

    norcal (da5491)

  4. You both make good points. I agree.

    Dana (1225fc)

  5. Paul made the point better and earlier.

    norcal (da5491)

  6. Heh. I’m just being gracious, norcal.

    Dana (1225fc)

  7. If you want to know what I think, what I think is that Trump thinks that judges are cut from the same corrupt cloth that he is, and he thinks that because he is so psychopathically narcissist that he cannot imagine, let alone see, any person who is a better person that he is.

    That’s what I think. What do you think?

    nk (bd6147)

  8. I can’t help but think that Trump–meddler and obstructor of justice that he is–reached out to Cannon and Dearie and his six appointees on the 11th Circuit and made “do me a favor” offers. It does appear that Cannon succumbed and Dearie held fast, and we’ll how Trump Six turn out.
    I’d like to see the DOJ confront Cannon and Dearie in a court setting and ask them whether Trump or one of his fixers contacted them and made an offer.

    Paul Montagu (753b42)

  9. Heh. I’m just being gracious, norcal.

    Dana (1225fc) — 9/20/2022 @ 7:43 pm

    🤣

    Well-played!

    norcal (da5491)

  10. I can’t help but think that Trump–meddler and obstructor of justice that he is–reached out to Cannon and Dearie and his six appointees on the 11th Circuit and made “do me a favor” offers.

    My first thought: That’s highly inappropriate.

    My second thought: That’s Trump.

    norcal (da5491)

  11. norcal (da5491) — 9/20/2022 @ 7:59 pm

    that reminds me of Liz Cheney’s much hyped criminal referral, which resulted in nothing:

    “After our last hearing, President Trump tried to call a witness in our investigation, a witness you have not yet seen in these hearings. That person declined to answer or respond to President Trump’s call.”

    but BS begets more BS

    JF (5adaeb)

  12. 2.

    … Things like declassification hoaxes and election-fraud hoaxes get exposed.

    get dropped.

    They don’t exposed any more than they were before.

    The judge made the right decision – they have to bring something to show anything was declassified. The lawyers say they are keeping their argument secret fir possible use if Trump is indicted.

    Sammy Finkelman (19edaf)

  13. @3

    It’s fascinating to contrast what Trump says in public versus what his lawyers actually argue in court.

    norcal (da5491) — 9/20/2022 @ 7:35 pm

    There’s a reason for this, I think…

    1) Government is saying these “classified” marked documents are still classified (or treating it as if).

    2) Government now has these alleged classified documents.

    3) Government is wanting to REFUSE to allow Trump’s attorneys to review these documents, because they’re making the position that it’s still classified.

    4) Government is demanding Trump team to show any proof that he declassified them… yet, his attorneys aren’t allowed to review what Government has to make that assertions, sans special master.

    5) I think that’s why Trump’s team is being cagey about it in court, because the simple answer is that they don’t really know, because they haven’t reviewed the documents in government’s possessions. Being good lawyers here, they don’t want to assert something as fact (that Trump declassified), when they can’t even review said documents.

    6) I think the special master request by Trump’s team, was a way to circumvent DOJ’s positions that these documents could not be reviewed by Trump’s lawyers.

    7) Keep in mind, that this is still a civil case (right?) so Trump will have to establish he declassified the docs and he has to do that with evidence presented to court. Not that the DOJ has to prove that they were still classified (as they would during a criminal case).

    8) I think it’s now clear Trump’s lawyers make clear they will not go on the record with what Trump declassified. Which I think that’s a risky approach for Trump.

    9) COULDN’T a better strategy would be for Trump to state clearly and unequivocally on record what he declassified “x” documents (ie, the Crossfire Hurricane stuff) with caveat to recognize he did not pack the records, and materials still classified could have been improperly sent to Mar-a-Lago that he did not directly send it and did not know they were there and that even when his team did a thorough search did not discover??? Essentially, pull the Hillary Clinton card, that even if some were classified, it wasn’t purposeful nor grossly negligent?

    10) I think that no matter what the special master says, who’s only there to confirm that the 100 documents are all “marked” classified and nothing is privileged, the *win* for Trump’s teams is being able to review these documents that the DOJ wanted to hide.

    11) A few things need to be hashed out in courts, as it was never tested up to SCOTUS: With respect to Presidents, what ministerial documentation is required to declassify documents? And, how does the square with the premise that Presidents has full classification/declassification authority. (current, I think there’s a Circuit Split on this).

    whembly (b770f8)

  14. Extension to bullet-point 11 above:

    Could Trump merely signing under oath an affidavit saying that he verbally declassified everything that was packed to Mar-a-Lago be enough (even though he may not know of all the details that was packed)?

    Keep in mind, he had the ultimate declassification authority until Jan, 19th 2020. In other words: What does ultimate declassification authority really mean?

    whembly (b770f8)

  15. 7) Keep in mind, that this is still a civil case (right?) so Trump will have to establish he declassified the docs and he has to do that with evidence presented to court. Not that the DOJ has to prove that they were still classified (as they would during a criminal case).

    It’s not a civil case, but a criminal investigation, but no one has been charged. Trump would be on firmer ground if he was indicted.

    Rip Murdock (d2a2a8)

  16. @16 I’m just curious here… but, why would “Trump would be on firmer ground if he was indicted.” Is it because he would then have discovery access??

    whembly (b770f8)

  17. @16 I’m just curious here… but, why would “Trump would be on firmer ground if he was indicted.” Is it because he would then have discovery access??

    Most challenges to searches (I believe) occur after someone is charged; Trump is conducting a preemptive challenge to the search. And of course discovery is not available to someone who is not charged. But I could be wrong.

    Rip Murdock (d2a2a8)

  18. On your #4, whembly, it doesn’t help that neither Trump nor anyone else kept a record of which marked documents were purportedly declassified.
    IMO, the real answer is (1) he didn’t declassify any of them while he was president, his assertions are hoax, and (2) it’s irrelevant for those documents that are protected by statute (nuclear secrets, intel on spies, etc.) and therefore cannot be declassified by a president and (3) it’s also irrelevant because the marked documents are presidential records and outside the bounds of executive privilege and attorney-client privilege. They belong to the USA, not him.

    Paul Montagu (753b42)

  19. It’s also irrelevant that Trump possessed classified documents-18 USC Section 793 (cited in the search warrant) covers “national defense information,” a much broader category of information that preceded (by decades) the current classification system.

    Rip Murdock (d2a2a8)

  20. I find it mildly amusing that anyone would think Trump’s “I declassified it all” claim has just as much credibility as DOJ’s assertion that many of the documents he was illegally retaining are in fact classified, as their labels indicate — and therefore Trump’s lawyers need to determine the truth of the matter.

    IOW, lawyers who don’t have security clearances to view top-secret material, or any experience in dealing with such matters, need to look at the documents to assess their classification status — even when we’ve learned that some of the DOJ prosecutors involved in the case don’t have high enough security clearances to view the most sensitive material that Trump purloined, the kind of things that are supposed to be viewed only in a SCIF.

    The lawyers themselves don’t seem to believe Trump’s “I declassified everything” claims, because they aren’t asserting that in court filings, and if they did accept Trump’s claim as true, why would they need to look at the documents to figure out if anything is in fact classified?

    Giving any credence to Trump’s self-serving claims doesn’t make sense.

    Radegunda (cf00bd)

  21. that reminds me of Liz Cheney’s much hyped criminal referral, which resulted in nothing:

    “After our last hearing, President Trump tried to call a witness in our investigation, a witness you have not yet seen in these hearings. That person declined to answer or respond to President Trump’s call.”

    but BS begets more BS

    JF (5adaeb) — 9/20/2022 @ 8:26 pm

    You keep asserting the spurious implication that the absence of an indictment means prior referrals and other complaints about allegedly criminal activity are BS. First, unless the statute of limitations has run — this one hasn’t — an indictment can still be brought. So you don’t know that Cheney’s referral “resulted in nothing.” And even if a SOL does run without charges being brought, the decision not to indict can be made for any number of reasons that don’t equate to factual or moral innocence.

    I’ll repeat the question you didn’t answer in the other thread: Does the failure to indict Bill Clinton mean the allegations that he committed perjury were BS? Does the failure to indict Hillary Clinton mean the allegations that she mishandled classified information were BS? Unless you believe the answers to those questions are “yes” (spoiler alert: they aren’t) it’s your assertion that’s BS.

    lurker (cd7cd4)

  22. “but BS begets more BS”

    Such ideas were disproved in the 19th century. Odd to see them still around.

    Jim Miller (85fd03)

  23. that reminds me of Liz Cheney’s much hyped criminal referral, which resulted in nothing

    Rest EZ; this neocon gets flushed in 100 days.

    DCSCA (6a83da)

Leave a Reply


Powered by WordPress.

Page loaded in: 0.1277 secs.