The race is on between the Biden administration, which on Friday filed a motion to stay the special master’s review of some 100 documents the FBI seized from Trump’s Mar-a-Lago home, and the special master, who could begin reviewing those documents as early as this week.
Over the weekend, the 11th Circuit accelerated the contest by ordering Trump’s legal team to respond to the DOJ’s motion to stay by Tuesday at noon, even as the special master already called a conference with the lawyers for that same afternoon to discuss the review process. For the sake of the country, the 11th Circuit should deny the DOJ’s request and allow the special master to proceed with the review.
Much has happened since Thursday when federal Judge Aileen Cannon, a Trump appointee, selected Judge Raymond J. Dearie to serve as special master to review the material seized by the FBI during an August 8, 2022, raid of Trump’s Mar-a-Lago home.
Dearie, a Reagan appointee and semi-retired senior judge for the Eastern District of New York, had previously served for seven years on the Foreign Intelligence Surveillance Act or “FISA” court. In fact, in that position, Dearie signed the FISA court’s fourth faulty Carter Page surveillance order. Nonetheless, Trump recommended Dearie to serve as a special master to review the seized materials. With the government not objecting to his selection, Cannon made his appointment official on Thursday.
Cannon’s order appointing Dearie also delineated his responsibilities as special master and the general process. Among other things, Cannon directed Dearie to “review all of the materials” seized during the Mar-a-Lago raid and to “verify that the property listed in the ‘Detailed Property Inventory’” “represents the full and accurate extent of the property seized.” The order further directed the special master to review the documents for privilege, including for formal assertions of “executive privilege.”
Most helpful for Trump and the half of Americans who no longer trust the DOJ and FBI, was Cannon’s order to the Biden administration that it make any documents with classification markings available “for inspection by Plaintiff’s counsel, with controlled access conditions (including necessary clearance requirements) and under the supervision of the Special Master.” The government must also provide copies of all other documents to Trump’s lawyers, and for nondocumentary items, the DOJ must make them available to Trump’s attorneys for inspection.
As I explained last week, “Judge Cannon further directed Trump’s lawyers to provide their position on which of four categories each item seized falls into: 1) personal items and documents not claimed to be privileged; 2) personal documents claimed to be privileged; 3) presidential records claimed to be privileged; and 4) presidential records not claimed to be privileged.” If the DOJ and Trump disagree on the appropriate classification, the special master will make recommendations to Judge Cannon, who will then decide the issue.
Cannon’s order also directed the special master and the parties to prioritize for review the 100-some documents the government maintains were marked classified, with the entirety of the review then to be completed by November 30, 2022.
The same day she named Dearie special master and specified his responsibilities, Cannon denied the Biden administration’s request that the court “stay” or put on hold the order directing the government to provide the special counsel access to the approximately 100 documents supposedly marked classified, pending the government’s appeal to the 11th Circuit. The DOJ also asked the court to allow the government to use those 100-some documents “for criminal investigative purposes” — something Cannon had ruled the government could not do until the special master completed his review. Cannon rejected that request as well.
In denying the government’s request for a stay, Cannon explained that the DOJ effectively asked her to accept at face value the government’s representations that “all of the approximately 100 documents isolated by the Government (and ‘papers physically attached to them’) are classified government records.” The court was unwilling to accept the government’s representation “without further review by a neutral third party in an expedited and orderly fashion.”
Cannon added that she was “not persuaded that the Government will suffer an irreparable injury without the requested stay.” Here the court noted that while the DOJ framed its request as necessitated by urgent national security needs, the government has not identified any “emergency” or any likely “imminent disclosure of classified information arising from Plaintiff’s allegedly unlawful retention of the seized property.” On the contrary, the only disclosures seen to date, Cannon stressed, were the government’s “leaks to the media.” And, in any event, because she directed the special master to prioritize the review of the approximately 100 documents supposedly marked “classified,” Cannon rejected the claim of irreparable injury.
The day Cannon appointed Dearie as special master, Dearie entered his first order, setting a preliminary conference between the parties for Tuesday, September 20, 2022, at 2:00 p.m., with Trump and the DOJ directed to “submit proposed agenda items for discussion by docketed letter” by close of business on Monday, September 19, 2022.
Friday also saw the Biden administration file a motion to stay in the 11th Circuit Court of Appeals. That motion requests the appellate court put on hold Cannon’s order that the government provide Dearie access to the 100 documents it maintains bear classification markings and that the government not use those documents in its criminal investigation until the special master completes his review.
The Biden administration’s motion to stay filed with the 11th Circuit was weak, opening with hyperbole that would fail Appellate Advocacy 101.
The district court barred the government from “further review or use of any seized materials for criminal investigative purposes pending a special-master process that will last months,” the DOJ’s brief opened. But while the entire process will last a little over two months, Cannon, to account for the government’s claimed concerns, directed the special master and the parties to address the 100 documents the government maintains were marked classified first. The court’s order also allows for interim reports, meaning that that portion of the review could be done within a week or two.
The Biden administration’s false framing of the delay as “several months” lessens the strength of its argument. The DOJ lawyers also set themselves up for an especially damaging counter by Trump’s legal team given the speed with which the special master is working. And should Trump’s attorneys submit to the special master a detailed “agenda item” on Monday that proposes an immediate review of those documents, the DOJ will be hard pressed to argue that a brief delay will harm national security.
The government’s argument of urgency also proves unconvincing, first because, as noted above, the special master is moving quickly. But second, the DOJ’s argument that “the criminal investigation is itself essential to the government’s effort to identify and mitigate potential national-security risks,” rings hollow.
However, even accepting the Biden administration’s claim that national security demands its criminal investigation continue unabated, that rationale does not support the DOJ’s second request: that the government be allowed to withhold the 100 documents purportedly marked classified from the special master’s review.
In making this argument, the DOJ repeats many of the arguments made to, and rejected by, Judge Cannon, and it does so without addressing the trial court’s reasoning. Most significantly, the Biden administration repeats its argument that all of the rationales for appointing a special master are “categorically inapplicable to the records bearing classification markings.” The DOJ’s brief then asserts: “The markings establish on the face of the documents that they are not Plaintiff’s personal property.”
This argument, however, ignores Cannon’s counter, that she is unwilling to “adopt” the government’s premise that “all of the approximately 100 documents isolated by the Government (and ‘papers physically attached to them’) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them.”
Here are two distinct possibilities that the review by the special master could establish (or rule out). First, some of those 100 documents may not actually bear classification markings. Second, some (or all) of the 100 documents may bear classification markings but clearly and indisputably are no longer classified.
For instance, Trump’s travel itinerary from his November 2019 Thanksgiving trip to Afghanistan to visit the troops, while highly secret before his surprise journey, no longer constitutes classified information. Alternatively, some (or all) of those 100 documents marked classified could be copies of documents from the Crossfire Hurricane investigation that Trump publicly declassified. If so, those copies are Trump’s personal property. Both these possibilities alone justify review by the special master and neither even reach the question of privilege.
The Biden administration ignores these possibilities, however, arguing in its motion to stay that because it has declared the 100-some documents bear classification markings, no further review by the special master is needed. Half the country finds the DOJ and FBI untrustworthy, though, especially when it comes to Trump. Thus, it would be in the public’s best interest for the special master to review those documents and address any dispute between Trump and the government concerning the proper category into which the documents fall.
Such a review by the special master also will not harm the Biden administration. While the DOJ claims that “requiring disclosure of classified records to a special master and to Plaintiff’s counsel would impose irreparable harm on the government and the public,” it fails to show how. If those records were in the possession of the national archive, Trump could review them personally. And Trump’s lawyers and the special master will have the requisite clearance to review the documents.
Further, Cannon already notified the parties that she will enter a protective order, as necessary, to ensure that the information, to the extent it needs to remain secret, does. The Biden administration also has little room to claim concern over keeping the specifics of what is in those documents confidential given the numerous government leaks to media outlets.
The 11th Circuit Court of Appeals should deny the Biden administration’s motion for a stay and allow the special master review to proceed. That outcome will be the only way to regain the trust of the American people.