The former president failed to quash a criminal investigation into his collection of sensitive documents and is stuck paying for a costly operation that threatens to undermine his public record.
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WASHINGTON – Former President Donald J. Trump’s request that a judge intervene in a criminal investigation into the collection of government documents by appointing a special master increasingly looks like a major mistake, legal experts say. we.
“Perhaps from Trump’s point of view, causing delay and chaos is always a good thing, but this has the feeling of a big return,” said Peter M. Shane, a legal expert based at New York University and division expert. -legal power.
For starters, Mr. Trump’s demand that an outside adversary review the F.B.I.’s equipment. Captured at his home in Florida it seemed like he would welcome him. His case was assigned to the judge he had chosen, Aileen M. Cannon of the Southern District of Florida, who surprised legal experts by accepting his request.
When he named a special counsel recommended by Mr. Trump’s lawyers, he halted the Justice Department’s investigation and gave the judge a broad mandate. The judge, Raymond J. Dearie of the Federal District Court for the Eastern District of New York, would filter the materials not only for the attorneys’ privilege, which is unusual, but also for the authority’s privilege, never seen before.
But Mr. Trump’s victory would be short-lived. An appeals court decision last week and a letter the Justice Department issued late Tuesday regarding subsequent complaints his legal team made under seal to Judge Dearie suggest that the effects of finding a special master are devastating and inflammatory.
James Trusty, Mr. Trump’s lawyer, did not respond to a request for comment. But late Wednesday, Trump’s team presented its complaints to Judge Dearie — a Sept. 25 – in an unconfirmed manner, clearly bringing tension.
The appeals court last week freed the Justice Department to resume using nearly 100 documents marked as part of its investigation, writing in a memo that the court considered that Judge Cannon erred in appointing a special master.
By blocking part of Judge Cannon’s order, the appeals court panel, including two Trump appointees, allowed investigators to re-examine the information that poses the greatest legal threat to Mr. Trump. Possible offenses include unlawful retention of national security secrets, obstruction and refusal of a subpoena seeking all sensitive records remaining on him.
But the Justice Department has now approved the remaining special order, meaning an outside prosecutor will still review about 11,000 unclassified records and other items seized from Mr. Trump’s Florida compound, Mar. -a-Lago. A second letter from Mr. Trusty on Wednesday said that about 200,000 pages of information.
Since the review no longer delays or deflects criminal investigations, it is unclear what benefits remain for Mr. Trump.
For one, a special master will cost a lot of money. Judge Cannon rejected Mr. Trump’s offer to have taxpayers pay half of the audit, instead saying he would be solely responsible.
That includes the full cost of a vendor who will review all materials, as well as support staff for Judge Dearie, such as an assistant who pays $500 an hour. Mr. Trump will also have to pay his lawyers’ fees as they sift through thousands of pages of records and litigate which ones can be denied as privileged.
And far from giving in to Mr. Trump, as his lawyers had hoped to signal his nomination, Judge Dearie appears to be framing the document’s review in ways that threaten to undermine security. of the former president.
For example, the judge ordered Mr. Trump to provide a declaration or affidavit on Friday confirming the property or listing any items in it “that the plaintiff says were not seized” during the search.
But if Mr. Trump believes that the F.B.I. he considered any written documents selected from his personal office and storage room at Mar-a-Lago, as the catalog states, would be evidence that could be used against and him if he is later charged with contempt of the subpoena.
Requiring Mr. Trump’s lawyers to confirm or deny the list also means confirming in court or denying a charge Mr. Trump has made publicly: his allegation that the F.B.I. plant false testimony. While it is not a crime to lie to Fox News viewers or on social media, there are consequences for lying to a court.
In effect, Judge Dearie is telling Mr. Trump’s legal team to “put up or shut up,” said Julie O’Sullivan, a Georgetown University professor of white-collar law.
“They thought it was a victory to win the first battle, but they didn’t think what winning that battle would mean for any honorable judge appointed as a special master,” Mrs. Sullivan said. “They can’t expect every judge to give them full approval regardless of the law. It was a political or public relations strategy, not a legal one.”
In its September 25 letter to Judge Dearie, Mr. Trump’s legal team argued that Judge Cannon did not allow the special master to seek a declaration confirming the list of Mr. Trump or his representatives. Lawyers also said they would need to see the documents marked as classified to issue such a certificate.
Some of the tension centers on Mr. Trump’s public insistence that he deleted everything he took to Mar-a-Lago, a claim for which no credible evidence has emerged.
His lawyers have not yet repeated that claim in court. Instead, they suggested that he should have done so by emphasizing that the president has broad powers to destroy without confirming that he used them in the files.
In an interview this month, Judge Dearie said Mr. Trump’s legal team would need to provide evidence of any declassification — such as a sworn declaration or affidavit — or he would rule that they remain classified.
He said: “I guess my view on it is, you can’t have your cake and eat it.”
By releasing the documents marked as classified from the master’s special review, the appeals court again addressed the disconnect. There was “no evidence that any of these records were deleted,” the three-judge panel wrote, noting that Mr. Trump’s lawyers “refused to present any evidence of that you cancel any of these documents.”
Mr. Trump, through his lawyers, is angry about other orders from the special master, their letter of September 25 shows.
For example, Judge Dearie said they must separate each document that Mr. Trump claims is privileged. They should state whether they mean attorney-client or administrative privilege. And if they want administrative rights, then they must distinguish between records that are protected only from disclosure to people outside the administration and those that the administration itself cannot review. They must also explain why each document qualifies for such status.
Judge Dearie is trying successfully to force Mr. Trump’s lawyers to confront the flaw in their idea that the executive privilege is central to the case. Many legal experts suspect that a former president could invoke that privilege against the current president’s wishes, barring the Justice Department from reviewing executive branch resources in criminal investigations.
But in their letter, Mr. Trump’s lawyers said Judge Dearie was going beyond what Judge Cannon had authorized him to seek from them, and said they “see no reason to sever” their requests for authority rights in the two different types he chose.
For its part, the Justice Department seemed to be enjoying Mr. Trump’s discomfort.
In your letter you wrote: “The plaintiff has brought this civil case, which is fair. “He bears the burden of proof. If he wants the special master to make recommendations about whether he is entitled to the relief he wants, the plaintiff will need to participate in the process,” Judge Dearie said.
