The Special Master Saga Continues

20 mins read

Last week I wrote about Trump’s lawsuit requesting a special master to screen the Mar-a-Lago documents. To recap, his lawsuit was based on the outlandish claim that he had the right to possess the documents, a mindboggling claim given that most of the documents seized by the FBI were government documents, which, by law, must be housed in the National Archives. Moreover, about 100 of them were classified.

The Judge Ruled for Trump

Yup. You read that right. On Monday, Judge Cannon gave Trump his special master. The ruling is here. One of her reasons? “To ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented.”

She then temporarily halted the criminal investigation until the special master finished screening the documents:

Court also temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order.

The order is somewhat unclear. The DOJ is not allowed to “review” or “use the seized materials for investigative purposes” — but what the heck does that mean, given that the review has been completed? Presumably, she meant that the government cannot use the information from the documents to continue its investigation, but what if they don’t actually need the documents to do that? What if they have moved past reviewing the documents and are on to questioning witnesses about something other than the content of the documents?

She then went on to say that the national security review could continue:

This Order shall not impede the classification review and/or intelligence assessment by the Office of the Director of National Intelligence (“ODNI”) as described in the Government’s Notice of Receipt of Preliminary Order.”

The problem is that it is not possible to segregate the criminal investigation from the national security investigation. For one thing, the FBI is part of the national security division. Moreover, the national security investigation is likely to uncover crimes. Thus it isn’t possible to enjoin the criminal investigation while allowing the national security investigation to continue.

Some of the rationale she gave was silly and clearly singled Trump out for special treatment. For example, she said that Trump, because he is a former president, deserves extra protection from something that might “stigmatize” him:

As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.

One reason this is silly: Trump himself is the one who made this all public. Also, what about all the other people who feel stigmatized by searches? Nobody else gets shielded from the stigma of a search if there was probable cause for the warrant. Everyone else has to wait for an indictment, at which time they can challenge the legality of the search by filing a motion to suppress.

About executive privilege, she basically says the issue isn’t as cut and dried as the government says it is. But even if Trump does have executive privilege claims (he doesn’t), the place to resolve conflicts over executive privilege is in the D.C. courts because the Presidential Records Act specifically says that disputes about executive privilege are to be settled in D.C.

She then ordered the parties to meet and confer and submit possible names for a special master. A joint filing was due Friday night.

Then came the bombshell reporting that the documents seized from Mar-a-Lago included another nation’s nuclear secrets.

On Tuesday, The Washington Post reported that:

A document describing a foreign government’s military defenses, including its nuclear capabilities, was found by FBI agents who searched former president Donald Trump’s Mar-a-Lago residence and private club last month, according to people familiar with the matter, underscoring concerns among U.S. intelligence officials about classified material stashed in the Florida property.”

Some seized documents were so closely held, only the president, a Cabinet-level or near-Cabinet level official could authorize others to know.”

The DOJ filed a notice of appeal.

On Thursday, the DOJ filed a notice of appeal signaling their intent to appeal Judge Cannon’s order granting the special master.

Next, the DOJ filed a Motion for a Stay Pending Appeal.

This is where the action is. Even an expedited appeal can take at least a few weeks and possibly months to resolve. One solution for when an appeal or trial will take too long, and in the meantime irreparable damage can be done, is to ask for a “stay pending appeal” which maintains the status quo as the appeal is pending.

The DOJ’s Motion for a stay pending appeal is here.

What the DOJ did was clever: Instead of asking for a stay for all 11,000+ documents seized from Mar-a-Lago, the DOJ asked only that the 100 documents with classified markings be exempted from the order while the appeal is pending. This was clever because all the arguments that the DOJ made with regard to all the government documents are much easier to make (and much clearer) with regard to classified documents. For example:

  • Trump cannot reasonably (or legally) assert ownership over classified documents (but some of the documents taken from his office he does actually own and will get back).
  • Trump cannot reasonably (or legally) assert any sort of privilege over classified documents.
  • Trump cannot claim any personal harm from a temporary stay pending appeal for these documents because he doesn’t own them.

The DOJ included with its motion an affidavit from Alan Kohler, the assistant director of the Counterintelligence Division of the FBI. In a signed declaration, he explained that the FBI is really the only part of the intelligence community that can investigate and recover government secrets that have been improperly retained out in the wild by using grand jury subpoenas and other tools. Such reviews are necessary, he explained, given how sensitive these papers are. For example, the government needed to find out if any of the documents had been compromised. While this is necessary for national security, if Trump compromised those documents, he will have more criminal liability. Kohler explained that preventing immediate investigation of those 100 documents by law enforcement would cause irreparable harm to national security.

Because the DOJ is only asking to temporarily exempt those 100 documents, they are giving the court an off-ramp: Cannon can still give Trump his special master for the other 10,000+ documents. The DOJ just needs to continue its work with those 100 documents.

The DOJ also told the court this:

The government respectfully requests that the court rule on this motion promptly. If the court does not grant a stay by Thursday, Sept. 15, the government intends to seek relief from the Eleventh Circuit.

So you can see how the DOJ is proceeding. First, they are asking the lower court (Judge Cannon) to issue the stay pending appeal. If the lower court refuses, they will ask the Eleventh Circuit (the appeals court for that district) to issue a stay pending appeal. If that fails, they will take it expedited to the Supreme Court.

Getting the stay seems like a slam dunk because how on earth can Trump claim the right to possess classified documents? And how can a district court judge tell the National Security division of the Department of Justice that they can’t continue their work assessing whether crimes have been committed with classified documents owned by the government?

Then, in the Friday night court filing, Trump dug in and insisted he has an “absolute right of access” to the classified documents and the absolute right to control who can handle these documents.

I am not joking. In the Friday filing ordered by the court (it was due before midnight) Trump said this:

If any seized document is a Presidential record, Plaintiff has an absolute right of access to it while access by others, including those in the executive branch, has specified limitations. Thus, Trump (and/or his designee) cannot be denied access to those documents, which in this matter gives legal authorization to the Special Master to engage in first-hand review.

A “presidential record” is defined as a record generated during his presidency.

So he claims the “absolute” right to access these classified documents. He also claims he is the one who controls who has access to them. He thinks that he can order highly sensitive documents to be handed to a special master of his choosing. He also thinks he can prevent the national security team of the FBI from accessing them.

In fact, the Presidential Records Act limits a former president’s access to the records.

It’s clear what defense he intends to bring: If he does indeed have the authority to decide who has access to these documents and where they can have access, he can give himself that authority, which means he was within the law when he took them with him to Mar-a-Lago.

At least the legal issue is clear: Does Trump, a former president, retain the power to control the classified documents generated during his administration, or is he an ordinary citizen without such power?

Will the courts let Trump get away with this?

The lower court judge Aileen Cannon (who journalist Marcy Wheeler calls the Loose Cannon) may go along, but there are higher courts. Here is why I don’t think the higher courts will let him get away with this:

  • Even the justices that he appointed refused to go along with his election fraud cases. At that point, they could have handed him the election — but they didn’t. Keeping him in the White House by going along with his bogus claims would have literally created a dictator because at that point, there would be no stopping anything he wanted to do. They might have preferred Trump to Biden, but they didn’t want a dictator and they didn’t want to entirely abandon rationality and law.
  • Letting a former president control the classified documents generated while he was president is almost as crazy.

Moreover, what if Trump has classified documents stashed somewhere else? Handing him this power would be to give him free rein to do whatever he wanted with sensitive national secrets he may have stashed elsewhere. It would also allow future presidents to walk away with all of America’s sensitive secrets and do what they want with them. A former president could give himself power equal to a sitting president because he would control America’s secrets.

Trump Tries To Create His Own Reality

This description is from Yale professor Timothy Snyder: Trump writes a script and tries to force everyone to become actors in his show. The script after Nov. 2020 was that he won. Now the script is, “I had the right to possess those documents.”

Fortunately, Trump generally loses in court.

We may be in for a nail-biting few weeks, but ultimately I have a hard time believing the courts will let him pull this off.

She claimed equitable instead of legal jurisdiction.

What the heck is that, you ask?

A long time ago, there were two kinds of courts, courts of law and courts of equity. In civil matters, courts of law generally awarded money damages incurred through illegal behavior. Equitable courts (courts of fairness, basically) operated where there were no laws governing the situation, but an unfairness needed to be addressed. Courts of equity issued orders instead of monetary damages. For example, if neighbors were having all-night parties in the era before nuisance laws, a sleepless person could go to a court of equity and get an order requiring the neighbors to be quiet after a certain hour.

Now, courts of equity and courts of law have merged.

Judge Cannon’s jurisdiction is premised on the idea that there are no legal remedies available now to Trump because the only way he can challenge the legality of the search is after an indictment when he can bring a motion to suppress the evidence.

Her jurisdictional arguments are weak at best, but she marched through the analysis and decided she has grounds for equitable jurisdiction. I would expect the DOJ to appeal this, but their immediate concern is to exempt the 100 classified docs from her order.

FAQ Page Update

I overhauled my FAQ page, which has turned into an essay on criminal investigations, rule of law, and how it all works.

I knew it was time to update the FAQ page because I found myself getting annoyed at the nature of the repeated questions I get on Twitter. It was time to update it anyway because it was written during the “Is Garland asleep? Where the heck is Merrick Garland?” era. If you want answers to any of these questions (or you want a response to these comments) click through and read the page:

  1. Why hasn’t the DOJ indicted Trump in the stolen-documents case?
  2. Why is the DOJ taking so long with the investigation into the January 6 insurrection?
  3. Okay, so why can’t they charge Trump now and keep investigating?
  4. We need Trump convicted to keep him from running for office.
  5. Trump has to be indicted to stop him from undermining democracy and committing crimes.
  6. Trump (and the Republicans) keep breaking laws because there are never any consequences.
  7. Rich White guys are never held accountable.
  8. If all the lawbreakers are not brought to justice, rule of law in America will be dead.
  9. At least indicting Trump would provide some very solid schadenfreude.
  10. The process takes too long which shows that the system is hopelessly broken.
  11. The entire system is corrupt. Just look at _______ (example).
  12. Trump has been committing crimes all of his life. Anyone else would have been in prison by now.
  13. A former prosecutor said X and a former prosecutor should know better than Teri (so there)
  14. I get that Merrick Garland wants to stick to the rule book, but you can’t go by the book when the book is burning.
  15. Merrick Garland hasn’t yet indicted Trump because he is compromised and/or corrupt.
  16. Nothing else matters if Trump is not indicted.
  17. But what about the fact that Garland “refused” to prosecute cases handed to him by Mueller on a “silver platter?”
  18. Merrick Garland has proven that he cannot be trusted (or is corrupt) because of his position in E. Jean Carroll’s defamation lawsuit.

Reposted from with permission and minor edits.

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Teri has written novels, short stories, nonfiction for both young readers and adults, and lots of legal briefs. She is currently working on a book on disinformation to be published by Macmillan Publishers. Her political commentary has appeared on the NBC Think Blog and Her articles and essays have appeared in publications as diverse as Education Week, Slate Magazine, and Scope Magazine. Her short fiction has appeared in the American Literary View, The Iowa Review, and others. For twelve years she maintained a private appellate law practice limited to representing indigents on appeal from adverse rulings. She believes with the ACLU that when the rights of society's most vulnerable members are denied, everybody's rights are imperiled. She also believe with John Updike that the purpose of literature is to expand our sympathies. Teri lives with her family on the beautiful central coast in California.

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