Trump Bet On Special Master May Be Paying Off ... For The Prosecutors

Strategery!

Last week, after hack Judge Aileen Cannon did Trump a solid and agreed to appoint a special master to sort through the evidence seized from Mar-a-Lago on August 8, Donald Trump's lawyers proposed two candidates for the job. The first was a Republican stalwart with longstanding ties to Trump's lawyers, who happens to be married to a judge appointed to the Eleventh Circuit by Trump himself. In other words, no fucking way . The second proposed candidate was Judge Raymond Dearie, highly respected jurist from the Eastern District of New York, which left observers scratching their heads, since there was nothing obviously wrong with him.

Maggie Haberman suggested that Dearie's reputation for being thorough to the point of sluggishness might have appealed to Team Trump, whose main goal is to drag this shit out forever. Over at Axios, Jonathan Swan and Sophia Cai write that Trumpworld likes — or liked — Judge Dearie because of his former position on the Foreign Intelligence Surveillance Act (FISA) court, where he approved the warrants for Trump lackey Carter Page which were later criticized by the Inspector General. This apparently left Trump's minions with the impression that Dearie harbored deep distrust of the FBI, and could be counted on to treat all government representations skeptically. Which does sound like just the kind of Newsmax/OAN theory that Trump's doofuses would talk themselves into. But to anyone who hasn't been all the way up the ass end of the wingnutosphere smelling each other's farts, it lacks something in the way of credibility. Do they really think that a Reagan appointee whom Chief Justice John Roberts placed on the FISA court is uncomfortable with the exercise of government authority? Seriously ?

In the event, Judge Cannon appointed Judge Dearie special master, and now Trump is stuck with him.

As his first order of business, Judge Dearie summoned the parties to his courtroom at 2 p.m. today with the instruction that they submit their proposed workflow, i.e. how they want this all to go down, and answer a few questions from a memo that wasn't placed on the public docket.

The government's response was pretty bog standard: They'd like to wrap it up expeditiously, and they'd like Judge Dearie to coordinate with the National Archives.

Unsurprisingly, Donald Trump has a different take : He'd like this process to go as un-expeditiously as possible.

"The proposed calendar, circulated today to the parties only, compresses the entirety of the inspection and labeling process to be completed by October 7, 2022," they whined in reference to a preliminary sorting, which would weed out documents over which there is no disagreement as to categorization, such as letters from his attorneys (obviously privileged) or golf cleats he was storing in a box with Top Secret documents (obviously personal, but likely evidence of improper handling).

"We respectfully suggest that all of the deadlines can be extended to allow for a more realistic and complete assessment of the areas of disagreement," Trump's lawyers argue.

But they sound positively alarmed at some of Dearie's other suggestions. Here's a mini freak out over an order to brief Judge Dearie on the prospect of returning any Fourth Amendment litigation to Magistrate Judge Bruce Reinhart, who authorized the original warrant.

While the Plaintiff is, of course, willing to brief anything ordered by the Court under the auspices of the Special Master, we are concerned that the Draft Plan directs the Plaintiff to address whether Rule 41(g) litigation should be litigated under Case No. 9: 22-MJ-08332-BER. The Plaintiff respectfully sees no indication the District Court planned to carve out related litigation for a merits determination by the issuing magistrate for the warrant in question. Most importantly, none of the District Court’s Orders have ever indicated that this was even a consideration

Just as a reminder, Trump could have filed a motion for return of his property via Rule 41(g) of the Federal Rules of Criminal Procedure. But he didn't , because he'd have to argue that (a) he was seeking the return of personal property, and while he'd like to suggest that he somehow declassified that stuff and converted it to personal property, he's not about coming out and actually saying it under oath; and (b) he'd have to actually allege government misconduct, which he can't do. Luckily, Judge Cannon did him a solid and slipped some stuff about Rule 41 into the order appointing Dearie. But because Dearie, unlike Cannon, isn't a hack, he'd like an actual explanation as to why he and not Judge Reinhart should be making that assessment.

And it looks like Judge Dearie is going to make Team Trump put up or shut about claims that the former president declassified all the documents seized before he left the White House via mystical incantation or perhaps laying on of hands. Judge Cannon has allowed Trump the wheeze of claiming that this magical, secret declassification might have happened, without being forced to make an affirmative representation that it did happen — something they are likely loath to do, since perjury is a crime. But they might have run out of road on that strategy, if their carping about it in last night's letter to Judge Dearie is any indication.

Similarly, the Draft Plan requires that the Plaintiff disclose specific information regarding declassification to the Court and to the Government. We respectfully submit that the time and place for affidavits or declarations would be in connection with a Rule 41 motion that specifically alleges declassification as a component of its argument for return of property. Otherwise, the Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.

Essentially they're arguing that they have the right to punt on this one until after the review is complete. Which would, as Marcy Wheeler suggests , buy them enough time to get past the midterms, at which point they hope to have the gavel back in the House of Representatives and launch eleventy million investigations of the ARCHIVES WITCH HUNT. Which is plausible, although it suggests a level of chess mastery that's at odds with a bunch of dingbats who just stumbled into Judge Dearie's courtroom expecting a cakewalk.

We shall see!

[ Trump v. United States , Docket via Court Listener]

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