Donald Trump’s lawyers appeared in federal court last night to chastise the Justice Department for its “blanky dismissal of practical experience.” They insist that any document processing provider simply cannot meet the tight deadline demanded by the government and approved by Judge Deere, a special master handpicked by Trump himself.
This lecture by career prosecutors, let alone a trial, might have more credibility if it didn’t come from a dream team that took three tries to bring an underdog to trial pro hac vice petition and it took Mulligan to change the lawyer’s email address in court. AHEM.
The latest opposition was a response to Judge Deera’s statement Case management plan to sort the documents seized at Mar-a-Lago on August 8. On Tuesday, the prosecutor’s office sent letter Judge Deary, responding to Trump’s off-the-record objections to the Plan. It was clear from the letter that the former president disagree with both the pace and scope of the proposed special master’s course.
The Trump Council answered yesterday in typical Trump fashion:
The government also uses the opportunity to request an extension of time to read closing and opposing comments to plaintiff’s counsel regarding counsel’s private objections to the amended Case Plan. The Ministry of Justice continues to mistakenly believe that it is the legal authority. His comments are not arguments, but announcements aimed at promoting judicial oversight and the plaintiff’s constitutional rights.
They also posted the objections along with this rather strange explanation of why the message was not published:
Finally, as the Government has chosen to include in its public record references to our objections to the amended case plan (which was sent directly to the Chambers as a letter), a copy of our letter is attached hereto for the consistent treatment and preservation of these objections before Your Honour.
In short, Trump and his lawyers seem very unhappy with how this particular case is going. They are the object to the speed of the proceedings, contend that Judge Deary exceeds the order of appointment, and unbelievable still object to removal of classified documents from special master proceeding, even after Eleventh Circuit said NFW.
“Plaintiff currently has no means of accessing the classified documents that would be necessary to complete such certification by September 30, the currently proposed completion date,” they wrote. This is in response to the master’s special request that the attorneys state under oath whether anything in the inventory of seized items was planted by the FBI, as Trump and his minions have often claimed.
“The appointment order did not provide for plaintiff’s appropriate declaration or affidavit, and because the Special Master’s case plan exceeds the district court’s authority on the matter, plaintiff must object,” they wrote of the order, which would limit Trump’s ability to make frivolous allegations against the FBI.
They also object to Judge Deere’s plan, which would require them to actually specify exactly what privileges they want. While Justice Cannon appointment order urged Trump to assert attorney-client and executive branch privilege over certain records, Judge Deery seeks further clarification as to whether each record is attorney-client privileged; lawyer’s work product; executive privilege, and thus protected from disclosure by parties outside the executive branch; and executive privilege, and are theoretically protected from disclosure within the executive branch.
That last category would be a presumptuous claim, requiring Trump to argue that his residual privileges years after leaving office allow him to override a sitting president’s waiver of privileges, the plain language of the Presidential Records Act, which mandates archives to release documents in response to legal process. and binding precedent from United States v. Nixon418 US 683, (1974), that the invocation of the privilege cannot be used to obstruct a criminal investigation and must give way to the government’s “demonstrated, specific need” for the records.
Not surprisingly, his lawyers don’t like to make this argument and therefore simply refuse to do so.
Pursuant to the appointment order [ECF 91], plaintiff’s counsel intends to divide the documents into the four categories identified by the district court. However, because the appointment order also allows you to make recommendations about the executive’s powers (ECF 91 at 2b.), we will also assert and support that privilege, but we see no reason to segment this particular privilege as described in Paragraph II c and d of the modified plan.
Likewise, 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 to recover the property. In reasoning that was roundly rejected by the Eleventh Circuit, Judge Cannon asserted equitable jurisdiction over the case by using the creative fiction that Trump’s thin-plate complaint was functionally within Rule 41. She then instructed Judge Deary to consider such a motion if and when it will ever become a primary document. But when he’s lucky enough to get into Judge Cannon’s courtroom, the former president isn’t about to let some weirdo judge him to whom he pays send him back to Palm Beach.
The district court’s decision to exercise jurisdiction over the Mar-a-Lago search warrant issues has been a hotly contested component of the trial to date, as has the establishment of the Special Master Proceedings. There is no indication in the assignment order that the district court plans to set aside the relevant litigation for the merits of the warrant to be determined by the judge. In the absence of clear direction from the District Court on this matter, we respectfully suggest that the briefing requirement be omitted from your final plan.
As reporter Marcy Wheeler guessed Yesterday, Trump was setting up a conflict between Justices Cannon and Deary, perhaps hoping the trial court would fire the special master or at least rein him in sharply. But the government is making sure that when it happens, it happens in public, where the Eleventh Circuit can see it.
And while we’re playing this game of Kremlinology, it’s worth noting that just days after CNN reported that Trump had “rejected” his new $3 million lawyer, Chris Keyes, his name did not appear in Letter of September 28, which was signed by James Trusty, Lindsay Halligan and Evan Corcoran. However, he appeared on September 27 objection to the case management plan. So, make of that what you will.
Trump vs. the United States [Docket via Court Listener]
Liz Dye lives in Baltimore, where he writes about law and politics.