Matthew Chapman at Salon reported, Special master rebukes Trump judge that appointed him for order that “made no sense”:

When former President Donald Trump went to court against the Justice Department to stall the federal investigation into classified documents at his Mar-a-Lago resort in Palm Beach, Florida, a district judge he appointed, Aileen Cannon, granted Trump everything he asked for, appointing a special master to review the documents for executive privilege even though no legal precedent grants a former president privilege over national security documents, and effectively blocking the DOJ from conducting a national security review until the special master’s work is complete.

Advertisement

Now, the special master himself, Senior Judge Raymond Dearie of Brooklyn, is rebuking Cannon for a decision that hamstrings a key function of the job she assigned him to do, in a filing published by Just Security. Specifically, he is taking issue with her rescinding his authority to issue interim reports as he conducts his review — and saying her reasoning for this made no sense.

“In the original Appointing Order, the Court directed that ‘the Special Master shall submit interim reports and recommendations as appropriate. Upon receipt and resolution of any interim reports and recommendations, the Court will consider prompt adjustments to the Court’s orders as necessary,'” said the filing. “However, the Court later struck that language as part of its order implementing an unrelated ruling by the Eleventh Circuit. As the language quoted above as to interim reports and adjustments to prior orders is consistent with the Eleventh Circuit’s ruling and the efficient administration of the Appointing Order as amended, the undersigned respectfully recommends that the Court issue an order reinstating that language.”

This comes after a three-judge panel of the Eleventh Circuit, two of whom were also Trump appointees, reversed the portion of Cannon’s order blocking the DOJ from access to documents that were marked classified. The special master review will continue for the unclassified documents.

Dearie was mutually agreed to as the best choice of special master by Trump and the DOJ. According to previous reports, Trump was hoping that because Dearie previously served on the Foreign Intelligence Surveillance (FISA) court, and because that court was at the center of a long-running Fox News talking point about the FBI supposedly abusing power in the Russia investigation, that Dearie would automatically view the FBI and DOJ as corrupt and be a sympathetic to him.

So far, however, Trump’s hopes haven’t panned out. At the first special master hearing, Dearie aggressively pushed Trump’s legal team to take a position on the former president’s repeated claims he can declassify top secret documents without telling anyone — and made clear he takes the DOJ at its word that documents labeled classified are, in fact, classified.

Liz Dye reported at Above The Law, Trump Whines That Special Master Won’t Follow Rulebook Magicked Out Of Thin Air By Trial Judge (excerpt):

The latest dustup comes in response to Judge Dearie’s Case Management Plan for sorting through documents seized from Mar-a-Lago on August 8. On Tuesday, prosecutors sent a letter to Judge Dearie responding to Trump’s undocketed objections to the Plan. From the letter, it was clear that the former president disagreed both with the pace and scope of the special master’s proposed course.

Trump’s counsel responded yesterday in typically Trump-y fashion:

The Government also uses the opportunity of asking for an extension of deadlines to lecture Plaintiff’s counsel with conclusory and antagonistic comments regarding counsel’s privately filed objections to the Amended Case Management Plan. DOJ continues to mistake itself as having judicial authority. Its comments are not argument, but proclamations designed to steamroll judicial oversight and the Plaintiff’s constitutional rights.

They also published the objections, along with this rather odd explanation as to how the communication failed to wind up on the public record:

Finally, as the Government chose to include in its public filing references to our objections to the Amended Case Management Plan (which was sent to chambers directly as a letter), a copy of our letter is enclosed herewith, for consistent treatment and to preserve those objections before Your Honor.

UH HUH.

In short, Trump and his lawyers appear to be very unhappy with the way this whole special master thing is working out for them. They object to the speed of the process, claim that Judge Dearie is exceeding his appointment order, and unbelievably are still objecting to the removal of documents bearing classified markings from the special master process, even after the Eleventh Circuit said NFW.

“Plaintiff currently has no means of accessing the documents bearing classification markings, which would be necessary to complete any such certification by September 30, the currently proposed date of completion,” they write. This is in response to the special master’s demand that the lawyers say under oath if anything in the inventory of items seized was planted by the FBI, as Trump and his minions have frequently alleged.

“The Appointing Order contemplated no corresponding declaration or affidavit by Plaintiff, and because the Special Master’s case management plan exceeds the grant of authority from the District Court on this issue, Plaintiff must object,” they write of the order which would bone Trump’s ability to lob baseless accusations at the FBI.

They also object to Judge Dearie’s plan for them to get really specific about exactly what privilege they’re asserting. While Judge Cannon’s appointment order called for Trump to assert attorney-client and executive privilege over specific records, Judge Dearie mandates further clarification as to whether each record is attorney-client privileged; attorney work product; executive privileged, and thus shielded from disclosure to parties outside the executive branch; and executive privileged, and theoretically shielded from disclosure within the executive branch.

This last category would be a brazen claim requiring Trump to assert that his residual privilege years after leaving office allows him to override the incumbent president’s waiver of privilege, the plain language of the Presidential Records Act which instructs the Archives to disclose records in response to lawful process, and binding precedent from United States v. Nixon, 418 U.S. 683, (1974) that an invocation of privilege cannot be used to thwart a criminal investigation and must give way to the government’s ‘demonstrated, specific need’ for the records.

It’s no wonder that his lawyers are loath to make this argument, and so, they’re just refusing to do it.

Consistent with the appointment order [ECF 91], Plaintiff’s counsel intends to allocate documents into the four categories identified authorized by the district court. However, as the appointment order also authorizes you to make recommendations regarding executive privilege (ECF 91 at 2b.) we will also provide assertions and bases for that privilege as well, but we see no basis for segmenting that particular privilege as described in Paragraph II c and d of the Amended Plan.

Similarly, 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 for return of property. In a line of reasoning which was thoroughly rubbished by the Eleventh Circuit, Judge Cannon bootstrapped herself into equitable jurisdiction over this case by employing the creative fiction that Trump’s wafer thin complaint was functionally a Rule 41 motion. She then instructed Judge Dearie to entertain such a motion if and when it ever transubstantiated into the body of a living document. But having lucked into Judge Cannon’s courtroom, the former president isn’t about to let some geezer judge whom he’s paying send him back to Palm Beach.

The District Court’s decision to exercise jurisdictional authority over matters surrounding the Mar-a-Lago search warrant was a hotly contested component of the litigation to date, as was the establishment of a Special Master review. There is no indication in the appointment order that the District Court is contemplating a carve out of related litigation for a merits determination by the issuing magistrate for the warrant in question. In the absence of a clear directive from the District Court on this issue, we respectfully suggest the briefing requirement be withdrawn from your final Plan.

Cool.

As reporter Marcy Wheeler surmised yesterday, Trump is setting up a conflict between Judges Cannon and Dearie, perhaps hoping that the trial court will fire the special master, or at the very least sharply rein him in. But the government is making darn sure that, if that happens, it’s going to happen in public where the Eleventh Circuit can see it.

And while we’re playing this game of Kremlinology, we’d note that, just days after CNN reported that Trump had “sidelined” his brand new $3 million lawyer Chris Kise, his name did not appear on the September 28 letter, which was signed by James Trusty, Lindsey Halligan, and Evan Corcoran. It did, however, appear on the September 27 objection to the case management plan. So, make of that one what you will.

Today:

Bob Brigham reports, Experts slam Judge Cannon’s latest pro-Trump ruling: ‘Hilarious, corrupt, shameless, and obvious’:

Trump-appointed Judge Aileen Cannon generated controversy again on Thursday after ruling for Donald Trump’s lawyers on a case management plan for Special Master Raymond Dearie.

Dearie had given Trump a Sept. 30 deadline to attest to what was seized at Mar-a-Lago, but Cannon over-ruled the special master she appointed and said the former president would first have a chance to review the seized documents, which may include 200,000 pages.

That wasn’t the only way she delayed the case. She set a new deadline of Oct. 5 to finalize a document review vendor, a step Dearie had hoped would have only taken one or two days.

Legal experts were once again stunned by Judge Cannon.

“It seems being slapped down herself by the 11th circuit didn’t make Judge Cannon any more circumspect,” Loyola Law Prof. Jessica Levinson wrote.

National security reporter Marcy Wheeler wrote, “holy hell this woman has no shame.”

“Cannon is basically jumping up and down on a scale that her Special Master is supposed to still own,” Wheeler said. “It is hilarious, corrupt, shameless, and obvious.”

“This is a minor win for Trump’s team, because now they don’t have to essentially disavow their dubious claims that the FBI planted evidence,” former federal prosecutor Renato Mariotti wrote. “But this doesn’t change the difficult position Trump is in. He still has to take a position regarding every seized document.”

All this does is let Trump continue the “the documents were planted!” narrative for his cult through the midterms and extend the date of the entire review. Judge Canon is aiding and abetting Trump’s dilatory tactics to keep his lie alive. She is the most openly corrupt judge, on a big stage, I have ever witnessed. She needs to be removed from the bench.

CNN adds, Trump won’t have to back up claims in court about FBI planting evidence after judge rejects part of special master’s plan:

US District Judge Aileen Cannon, who granted Donald Trump’s request for a third-party review of the Mar-a-Lago search, rejected part of the special master’s plan that would have forced the former President’s legal team to back up his out-of-court claims that the FBI planted evidence.

The special master, US District Judge Raymond Dearie, had laid out a plan that instructed Trump’s team to verify the accuracy of the inventory investigators provided of what was seized in the search. The requirement would have forced Trump to go on the record in court whether he believes evidence was planted by the FBI during the search on August 8, as he has suggested in public statements.

“There shall be no separate requirement on Plaintiff at this stage, prior to the review of any of the Seized Materials, to lodge ex ante final objections to the accuracy of Defendant’s Inventory, its descriptions, or its contents,” Cannon wrote in an order Thursday, noting that her order appointing a special master contemplated only the government filing a declaration verifying the accuracy of the inventory.

“Should any additional matters surface during the Special Master’s review process that require reconsideration of the Inventory or the need to object to its contents, the parties shall make those matters known to the Special Master for appropriate resolution and recommendation to this Court,” Cannon said in her latest order.

[T]he Sunday objection letter to Dearie was made public with a Wednesday submission from the Trump team, in which they told the special master that documents from the search amount to 200,000 pages of material. The amount of material seized has not grown significantly since prosecutors first worked through it on the day of the search – but the Trump team, now grasping the number of pages within each document, is alarmed at how quickly they’ll have to work through the collection.

[In] recent days, the special master process has prompted the Trump team and the Justice Department to try to hire a service that can host the documents digitally, so they can be worked through. Earlier this week, the department said in a court filing that Trump’s team had indicated the data hosting companies didn’t want to work with the former President.

His team now says the issue is the size of the evidence collection.

“In conversations between Plaintiff’s counsel and the Government regarding a data vendor, the Government mentioned that the 11,000 documents contain closer to 200,000 pages. That estimated volume, with a need to operate under the accelerated timeframes supported by the Government, is the reason why so many of the Government’s selected vendors have declined the potential engagement,” Trump’s team wrote on Wednesday.

Finally, there’s this:

Tracker: Evidence of Trump’s Knowledge and Involvement in Retaining Mar-a-Lago Documents:

A central question in the Mar-a-Lago espionage and stolen documents investigation involves former President Donald Trump’s knowledge and involvement in retaining government records. We have compiled a comprehensive account of the publicly available information that addresses that question. Especially significant findings are highlighted in red text. 

Readers should decide for themselves what conclusions they reach based on the record below. On our view, the record as a whole points to Trump’s culpability based on [the] evidence.




Advertisement