In the first paragraph of her order reversing Raymond Dearie’s order that Trump verify the inventory DOJ provided, Aileen Cannon identified three documents by name: Dearie’s amended case management plan, dated September 23, Trump’s objections, which were originally sent to Dearie on September 25 but which she may have only seen on September 28, and a government filing she renames, which was originally titled, “Motion to Modify and Adopt the Amended Case Management Plan with Comments on the Amended Plan and Plaintiff’s Objections.” That was filed on September 27.

THIS CAUSE comes before the Court upon the Amended Case Management Plan (the “Plan”) [ECF No. 112], filed on September 23, 2022. The Court has reviewed the Plan, Plaintiff’s Objections [ECF No. 123-1], Defendant’s Response to Plaintiff’s Objections and Motion to Modify and Adopt the Plan [ECF No. 121], and the full record.

Later in her order, when she discusses Dearie’s own order that Trump confirm the inventory before the start of the designations, she describes the deadline he set for the inventory verification as September 30, then notes in a footnote that he modified that deadline in an interim report to her on September 27.

In addition to requiring Defendant to attest to the accuracy of the Inventory, the Plan also requires Plaintiff, on or before September 30, 2022, to lodge objections to the Inventory’s substantive contents.2

2 The Special Master’s Interim Report No. 1 modified this deadline to October 7, 2022 [ECF No. 118 p. 2].

Those two details are a tell to understand what, bureaucratically, Cannon imagines she did on Thursday. On Thursday, she was overruling Dearie’s plan as it existed on September 23, not as it existed on September 27.  She was effectively taking over the review starting on September 23, but without telling anyone that or explaining what deadlines applied.

It’s a way — and was used as a way in this instance — to make Dearie entirely superfluous, a mere showpiece to give her own direct intervention to give Trump his way the patina of legitimacy.

Start with Cannon’s order appointing Dearie, dated September 15. It required that Dearie submit a plan to her within ten days, so by September 25.

Within ten (10) calendar days following the date of this Order, the Special Master shall consult with counsel for the parties and provide the Court with a scheduling plan setting forth the procedure and timeline—including the parties’ deadlines—for concluding the review and adjudicating any disputes.

She set a five day deadline for the parties to object to that order, after which she would review the matter de novo.

The parties may file objections to, or motions to adopt or modify, the Special Master’s scheduling plans, orders, reports, or recommendations no later than five (5) calendar days after the service of each, and the Court shall review those objections or motions, and any procedural, factual, or legal issues therein, de novo. Failure to timely object shall result in waiver of the objection.

The day after the 11th Circuit overruled her injunction on classified documents, on September 22, Cannon issued an order that everyone thought was just her acknowledging that the classified documents were no longer covered by the order (that’s not technically true, and I think she doesn’t believe it’s true even now, but it took the classified documents out of Dearie’s work plan). In taking out the reference to classified documents, it also took out this entire paragraph, including the bolded language about interim reports.

The Special Master and the parties shall prioritize, as a matter of timing, the documents marked as classified, and 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. [my emphasis]

I raised it at the time, people poo pooed my concern (and scolded Dearie for raising it later). But this was the moment when Cannon told Dearie to fuck off, only without telling him she had done that.

Shortly after that, on day 7 after his appointment, Dearie submitted to the two sides his original plan. He gave them until September 27 to raise objections.

This Case Management Plan shall be filed on the docket and deemed served on each party today. The parties may file objections to, or motions to adopt or modify, the foregoing Case Management Plan by September 27, 2022. Failure to timely object shall result in waiver of the objection. See Appointing Order, ¶ 11; Fed. R. Civ. P. 53(f).1

1. To the extent the parties file objections with the Court as to this Case Management Plan, the deadlines set forth above shall remain in effect while such objections are pending.

Clearly, at that point, he believed he would have time to address any concerns himself. The work plan included his plan to use (and pay, as the only paid employee) retired Magistrate Judge James Orenstein to help with the review.

On September 23, DOJ informed Dearie that Trump still hadn’t contracted with a vendor to scan the documents, and asked for a one business day extension, but still with the expectation that Trump would arrange the contract (since he is paying). DOJ also asked him to tweak his order to make it clear the inventory would not include the potentially privileged documents. They noted that Trump still hadn’t provided his proposed protective order, which had been due September 20, which would have held up the document scanning anyway.

Later that day, Trusty filed a protective order.

Dearie issued an updated work order, with the same September 27 deadline for changes. It also still included his plan to hire Orenstein. I believe this is the work order Cannon took as operative on Thursday.

Also on September 23, Dearie issued a protective order that (the docket entry noted) had been approved by Cannon. It sided with Trump that he didn’t have to share the name of his reviewers, something that was made less urgent after the 11th Circuit had taken the classified documents out of the work plan.

On September 25, on Dearie’s original deadline for filing a work plan with Cannon (but before the date he provided for changes), Jim Trusty emailed Dearie his three objections: they didn’t want to affirmatively confirm the inventory, they didn’t want to distinguish between Executive Privilege that could and could not be shared with the Executive Branch, and they didn’t think they had to brief the appropriateness of filing a Rule 41(g) motion to Cannon rather than to Reinhart. This was not docketed and Judge Cannon is not listed as a recipient of this email. Chris Kise was on the signature block of this letter.

The next day, September 26, the second public deadline (after the protective order, which Trump missed), DOJ filed a revised and sworn affidavit. That was also the deadline for Trump to designate all the potentially privileged files he had had since September 16.

A bunch of things happened on September 27. I’ll treat them in the order they appear in the docket, which looks like this:

First, Dearie filed a staffing proposal to Cannon, noting that the window for the two sides to object to it had expired. This was the first moment that the staffing got separated from his work plan.

No party has submitted any comment to the foregoing proposal, and the time for such comment has lapsed. Accordingly, the undersigned respectfully submits the foregoing proposal to the Court for approval.

Then Dearie filed an interim report to Cannon. In it, he recommended Cannon add back in the language authorizing interim reports that she struck along with language about classified documents.

Interim Reports and Adjustments to Prior Orders. 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.” Appointing Order ¶ 6. 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.

His interim report clearly expected he’d get one more shot to resolve disputes. In it, he said the parties would have until October 2 to respond.

This Interim Report and Recommendation shall be filed on the docket and deemed served on each party today. The parties may file objections to, or motions to adopt or modify, the foregoing report and recommendation by October 2, 2022

Next, there’s a sealed (and still sealed) order.

Then Cannon approved Dearie’s staffing plan, but declined to replace the language in her original order that permitted interim reports.

The Court takes no other action at this time, recognizing that the Order Appointing Special Master authorizes the Special Master to file reports and make recommendations as appropriate.

It was not clear at the time, but this effectively told Dearie that his understanding of how things would work — that he could issue interim reports and only after that Cannon would intervene — had been changed in the wake of the 11th Circuit ruling on classified documents. Effectively, Cannon told Dearie on September 27 she had taken over the work plan on September 23. That’s why, I suspect, that she only cited his September 27 Interim Report in a footnote. She basically ignored everything he did after September 23.

After that, DOJ filed its request for another deadline extension, along with its objections to Trump’s objections received two days earlier.

On September 28, Trump for the first time raised timeline concerns in writing, also claiming that DOJ had told Trump there were 200,000 pages (as I’ve written here, that’s virtually impossible; I suspect it came from the work order DOJ provided to solicit the vendor). The letter was not signed by Kise, and raised a lot of bogus claims about privilege (and also seemed to indicate that Trump had already missed the privilege deadline). Along with those concerns about timing, Trump filed his complaints, which (at least based on the public record) was the first time Cannon would have seen the complaints; the docket exhibit is what she cited in her order.

Working under Dearie’s deadline, DOJ had four more days to respond to Trusty’s probably bogus claims of 200,000 documents and to rebut the privielge claims. Working off a five day deadline from Dearie’s submission of his amended work order on September 27, DOJ also had four more days. Working under Cannon’s original deadline — five days after Dearie’s original deadline of September 25 — they had two more days. Under Dearie’s September 23 order, the final deadline was September 27.

What Cannon appears to have done is with no formal notice of what the deadline was or even that ten plus five was no longer operative, treat Dearie’s September 23 filing as his final action in setting the plan, but along the way use her own five day deadline for complaints instead of the September 27 deadline Dearie gave, which is the only way Trump’s temporal complaint would be timely yet have her order not be days premature.

The next day, with no notice of any new deadline, Cannon issued her order throwing out most of Dearie’s plan. I’ve spent hours and days looking at this, and there’s no making sense of the deadlines. Certainly, this could not have happened if any of Dearie’s deadlines had been treated as valid.

DOJ took a look at what Cannon had done and moved the 11th Circuit to accelerate the review process. They cited a number of reasons for the change in schedule. They described that Cannon sua sponte extended the deadline on the review to December 16.

On September 29, subsequent to the parties’ submission of letters to Judge Dearie, the district court sua sponte issued an order extending the deadline for the special master’s review process to December 16 and making other modifications to the special master’s case management plan, including overruling the special master’s direction to Plaintiff to submit his designations on a rolling basis.

Depending on how you make sense of Cannon’s Calvinball deadlines, it was a sua sponte order, because Trump’s complaint about the deadlines (not to mention his complaints generally) came in after the deadline attached to the Dearie plan that Cannon seems to treat as his final official action.

I think what really happened is that Cannon fired Dearie without firing him in response to being told by the 11th Circuit she had abused her authority, ensuring not only that nothing he decides will receive any consideration, but also ensuring that he has almost no time to perform whatever review role he has been given.

Effectively, Judge Cannon has just punted the entire process out after the existing appeals schedule, at which point — she has made clear — she’ll make her own decisions what government property she’s going to claim Trump owns.

Timeline

September 15, 2022: Cannon opinion denying stay; Cannon’s order of appointment; Raymond Dearie declaration

September 16, 2022: DOJ motion for a stay

September 19, 2022: DOJ topics for initial Dearie conference; Trump topics for initial Dearie conference

September 20, 2022: Trump 11th Circuit response; DOJ 11th Circuit reply

September 21, 2022: 11th Circuit opinion granting stay

September 22, 2022: Cannon order removing documents marked as classified from Seized Materials covered by her order; Dearie proposed work plan

September 23, 2022: Protective order; amended case management plan; motion for extension of time

September 25, 2022: Trump objections to Dearie order (released on September 28)

September 26, 2022: Sworn affidavit with more detailed inventory; Julie Edelstein

September 27, 2022: Dearie interim report; Staffing proposal; Government motion for extension and to adopt case management plan

September 28, 2022: Trump objection that DOJ didn’t ask for enough additional time

September 29, 2022: Cannon order alters Dearie work plan

September 30, 2022: DOJ motion to accelerate 11th Circuit appeal

After far too many mass shootings, commentators in the US have started to learn that when you immediately circulate the manifestos of mass shooters, you are making further mass shootings more likely. You are according the death wishes and death wish of that mass shooter value. You are often disseminating his (mass shooters are usually men) ideology to others who might be searching for some cobble of beliefs to make their own lives meaningful. And you are contributing to the spectacle of the mass killing, ensuring the focus will be on the horror of the act rather than the tragedy of the lives lost, much less the policies we could pursue to stop the epidemic of mass killing.

We have gotten so well-practiced with mass shootings in the US, we know well enough not to participate in the mass shooter’s actions by magnifying his manifesto.

But we don’t follow that rule about terrorism-in-process, at least not in the form of the former President’s own tweets.

With each new level of outrageousness — most recently in a Tweet inciting violence against the Senate Minority Leader and racism against his spouse — people who applauded Twitter’s decision to deplatform the realty TV show host and other forms of violent speech circulate that very same violent speech, often with little more than an expression of outrage to mediate it.

Not only does circulating the former President’s speech with no mediation magnify it, just like circulating the manifesto of a mass killer. But it accepts — willfully participates in! — the reality TV show host’s structure of power.

Every time one of his tweets goes viral, especially on a platform that has told him his incendiary speech violates the rules of the platform, he says — the actions of those who participate in it say — that the rules don’t apply to him. That he remains the center of attention. He remains the center of attention because the rules don’t apply to him. And that we all remain in the very same positions we did for the four years of his presidency: He commands by commanding attention, including the attention of those for whom our very scolding reinforces his value, because we are the “elite” a demagogue derives his power by opposing.

And because this economy works so well for him, because it is a way to retain his power long after voters acted to take it away, because it’s the only trick he’s got, he’s willing to ratchet up the outrageousness of his speech if that’s what he needs to do to remain the center of attention.

This is the same impulse that leads the networks to cover every single rally the former President stages (complicitly hiding the empty seats in the back), while ignoring historical speeches of the man who is, at least on paper, the most powerful man in the world, Joe Biden. If you hate it when the networks make such decisions stop making the equivalent decision yourself.

The former President continues to exercise power not via a rational calculus, not by an argument that he’s fit to govern. He failed to deliver on every single one of his campaign promises, and codified racism is the only promise that he consistently pursued. (Mitch McConnell and his White House Counsels, of course, never stopped their relentless efforts to stack the courts.)

The way to neutralize that power is not to observe, for the 1000th time, “my gosh he has said something outrageous” or even, “my gosh he’s going to get someone killed.”

Besides, he already did that.

If you choose to make the former President’s incitement  the center of attention — and many Twitter commentariat are voting with their attention to do just that every day — you choose to make spectacle, emotion, and fear the currency of politics.

So long as he dictates the political agenda through his expert deployment of spectacle, we will never have a rational conversation about politics. We will never get voters to listen when we describe how Rick Scott plans to cut their social security. We will never successfully point out the Republicans who are running on spending they voted against. We barely get voters (older, male voters at least) to listen to what the Sam Alito Court did to women’s autonomy. There is no “better argument” when politics is dominated by spectacle.

The way to neutralize spectacle is not to magnify it. The way to neutralize spectacle is to expose it as such, to help people see the theatricality of it all (and to point out the flimsiness of it along the way).

It’s not a perfect solution, but that’s why I use X-es anytime I screencap a tweet from the former President anymore. It makes it more work to read them, emphasizes that these tweets are stage-managed things, and interrupts the process of an immediate emotional reaction.

Better yet, don’t screen cap him: if you need to refer to something he has done — if he has actually done something that has any effect beyond ratcheting up emotion — then describe it without even using his name. Describe why he’s attempting to gin up emotion again — in this case, because Mitch McConnell has moved on to doing his job trying to help run the country without the guy who lost. If the country starts functioning quasi-normally again, then people might realize that the former President benefitted from and therefore encouraged dysfunction, which in turn fed the cycle of distrust in government. McConnell has taken baby steps towards helping the Senate to function normally again, and the former President needs to halt that process before the benefits of a quasi-functioning government become apparent.

The former President may be hoping that he’ll lead the Minority Leader to hesitate as he starts acting like a powerful Republican in his own right again, to worry about some crazed MAGAt with an arsenal. And yes, the former President might genuinely hope that happens, to show his threats are real. He’s undoubtedly hoping his own followers will continue to hate, in this case, Americans of Chinese descent. His power necessitates that Americans hate other Americans, because without that conflict, hate, and fear, their loyalty to him can’t be stoked.

The point is, the former President is ratcheting up threats because he can sense his own power, at least over Mitch, melting away.

Don’t help him renew that power.

In late August, alleged aspiring spy Jareh Dalke told someone he believed to be a Russian spy that he had already reached out on the “SVR [Russia’s foreign intelligence service] TOR site.”

In addition, in two emails on or about August 23 and 24, 2022, DALKE requested that the OCE take steps to verify that the person DALKE was communicating with was truly a member of Foreign Government-1. DALKE claimed that he had reached out through “multiple published channels to gain a response. This included submission to the SVR TOR site.”3 DALKE sought assurances that the OCE truly was a “[Foreign Government-1] entity rather than americans [sic] trying to stifle a patriot.” DALKE requested that the OCE provide verification of the association with Foreign Government-1, through a posting on an official website or through a report in one of the “media services associated with the government.”

That may provide useful insight into why Dalke was arrested on the same day as Anna Gabrelian and her spouse, Jamie Lee Henry, also for attempting to spy for Russia. Gabrielian told the undercover officer she wanted to support Russia, including its war in Ukraine.

During that meeting, GABRIELIAN told the UC she was motivated by patriotism toward Russia to provide any assistance she could to Russia, even if it meant being fired or going to jail.

Like Dalke, Gabrielian allegedly reached out to Russia at some unspecified time in the preceding months. Like Dalke, an undercover FBI officer had followed up on that outreach and gotten the aspiring spies to reconfirm an interest in working with Russia (they’re not the same undercover employee, though; one is referred to with female pronouns and the other is referred to with male pronouns).

On or about August 17, 2022, an FBI Undercover Agent (“UC”) approached GABRIELIAN and introduced herself by name. The UC told GABRIELIAN she was asked to contact GABRIELIAN about the assistance she offered a couple of months ago. GABRIELIAN asked if the UC was from the Russian Embassy, and the UC confirmed that she was.

The entirety of the case against Gabrielian and Henry was put together during a few weeks in August, during a period between the time when Dalke first shared fragments of three documents in early August and a period in early September when Dalke’s undercover officer was trying (unsuccessfully) to lure him to DC. It appears to have sat, largely wrapped up, until former Mueller prosecutor Aaron Zelinsky presented it to a grand jury on Tuesday.

Ultimately, the FBI set up an electronic dead drop for Dalke at Denver’s Union Station for a four hour window on Wednesday.

In Gabrielian and Henry’s case, the couple only provided medical records from Fort Bragg and Johns Hopkins (though each HIPAA violation carries a potential ten year sentence). Dalke is accused of sharing Top Secret NSA information and documents from two other agencies.

And his case is far more alarming for the way that he seems to have gotten hired at the NSA with the intent of stealing documents he could use to pay off his debt.

He was in the Army from 2015 to 2018. The next year, he got an online Bachelors in cybersecurity, and what is probably another online degree, a Masters, sometime after that. He bought a place with his partner in Colorado Springs in 2020. In June, he took a job at the NSA, but only remained there for 25 days, from June 6 until July 1. He claimed he left because of a family illness that would require nine months away, but then he applied for a new NSA job on August 11, after setting up the cryptocurrency account he would use to get paid by the presumed Russian spy.

The affidavit describes two reasons, besides debt, why Dalke might have considered spying. His arrest affidavit describes him expressing dissatisfaction with the US, particularly how it treated members of the military. “This country it is not as great as it thinks it once was. It is all about the businesses and their money, not anything about the people or those that serve it to include the military.” And he, “recently learned that my heritage ties back to your country, which is part of why I have come to you as opposed to others.”

But in 2017, he filed for bankruptcy, reporting over $80,000 of debt. And in a conversation with the presumed spy, he described even more extensive debts than reflected in his bankruptcy filings (though that may reflect the mortgage on his home).

In addition, according to court filings, on December 12, 2017, DALKE filed for Chapter 7 bankruptcy, which was granted on March 29, 2018. At that time, DALKE reported that he had approximately $32,809.52 in student loan debt and $50,987.34 in other non-secured debt, primarily credit card debt. At the time of the bankruptcy filing, DALKE also reported that he had approximately $8,373.12 in total assets.

[snip]

DALKE further noted that he was in financial need and was seeking compensation via a specific type of cryptocurrency in return for providing information he had procured, stating, “[t]here is an opportunity to help balance scales of the world while also tending to my own needs.” DALKE requested payment in the specific type of cryptocurrency because “as in these things privacy is extremely important.”

[snip]

On or about August 26, 2022, DALKE told the OCE that the total amount of his debt was $237,000, $93,000 of which was “coming due very soon.”

So, with his two online degrees, he started a job at the NSA on June 6. He either came in knowing — or soon learned — of a vulnerability that he used to access stuff for which he wasn’t cleared.

DALKE also noted that certain of the information he had access to was due to a misconfiguration in the system that granted him access to information beyond what he should otherwise have.

On June 17, June 22, and June 23 he printed out some of the documents he is accused of stealing. On June 28, the told the NSA he was leaving for a family illness, and left three days later. And then, after he had sent four documents to the guy pretending to be a Russian spy, Dalke applied for an external vacancy at the NSA, 8 months before he planned to return to the agency. (Update: The affidavit is not entirely clear whether Dalke would have taken a job earlier.)

In short, this was a guy who appears to have treated NSA like a quick fix for his debt woes. And at a time of heightened intelligence concerns and in the wake of Edward Snowden and Josh Schulte, he still wasn’t IDed during the vetting process.

Before I went to sleep last night, I suggested there was some suspense about whether journalists would accurately report the power grab Judge Aileen Cannon made yesterday. Who was I kidding? Rather than report what happened, virtually all news coverage simply quoted what Cannon claimed she had done. Not only didn’t the press call out Cannon’s own misrepresentations, but they introduced some of their own.

First, some outlets had suggested that Raymond Dearie had set really aggressive deadlines and Cannon simply altered them. That’s not really accurate. Cannon definitely tweaked with how Dearie would deal with the disputes (mandating a single report from Trump rather than cascading productions, a decision that Trump will cite next month when they ask for an extension). But her original order didn’t mandate any interim deadlines on the review itself (meaning, she can’t say the delay in hiring a vendor changed her own timeline); she just gave Raymond Dearie deadlines and timeframes during which the parties could challenge his decisions. The new interim deadlines she provided are premised on when Trump first receives the materials, so the delay Trump introduced by stalling on a vendor may not affect the process all that much. Dearie’s own deadlines were timed to meet Cannon’s deadline. So effectively, Cannon has simply arbitrarily extended her own deadline by 17 days, from November 30 to December 16.

Finally, in light of delays in securing an appropriate vendor to scan and make available the Seized Materials to Plaintiff and the Special Master, and recognizing the more precise quantification of the implicated pages of material [ECF No. 123 p. 1 (describing that the 11,000 documents approximate 200,000 pages of materials)], the Court hereby extends the end date for completion of the Special Master’s review and classifications from the prior date of November 30, 2022 [ECF No. 91 p. 5], to December 16, 2022. This modest enlargement is necessary to permit adequate time for the Special Master’s review and recommendations given the circumstances as they have evolved since entry of the Appointment Order.

As I note below, that happens to delay the end of Dearie’s work until after such time as the appeal will be fully briefed.

Cannon bases her timeline on three things. First, there’s the delay Trump introduced in getting a vendor (a delay Jim Trusty telegraphed at the hearing before Dearie). Cannon currently envisions the two sides having to agree on a vendor, so Trump may be able to delay the process further still.

Cannon also bought Trump’s claim there are 200,000 pages of materials. As I’ll show in a follow-up, she timed her order in such a way as to prevent DOJ from correcting this claim. I suspect it comes from a draft work order DOJ gave to Trump, but we shall see if and when DOJ explains that it’s impossible for there to be 200,000 documents in the 27 seized boxes plus Trump’s desk drawers.

Cannon also has decided that it will take three weeks to do the review based off her claim that it took DOJ three weeks to do a preliminary review of the seized material.

For context, it took Defendant’s Investigative Team approximately three weeks to complete its preliminary review of the Seized Material [ECF No. 39 p. 1].

She bases that off the interim status report from DOJ, which doesn’t say how long the review took. Rather, it says,

As of the date of this filing, the investigative team has completed a preliminary review of the materials seized pursuant to the search warrant executed on August 8, 2022, with the exception of any potentially attorney-client privileged materials that, pursuant to the filter protocols set forth in the search warrant affidavit, have not been provided to the investigative team.

DOJ would have said the same thing whether they finished their review minutes before filing this status report or two weeks earlier. Cannon simply invented the claim that DOJ had only just finished the review on August 30, three weeks after the seizure.

Cannon likewise misrepresents the nature of Trump’s objection to the inventory review and what the inventory review would have been (and reporters made her misrepresentation worse).

In addition to requiring Defendant to attest to the accuracy of the Inventory, the Plan also requires Plaintiff, on or before September 30, 2022, to lodge objections to the Inventory’s substantive contents.2

[snip]

Plaintiff objects to the pre-review Inventory objection requirement, citing the Court’s Order Appointing Special Master [ECF No. 91] and the current inability to access the Seized Materials [ECF No. 123-1 p. 1].

[snip]

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.

2 The Special Master’s Interim Report No. 1 modified this deadline to October 7, 2022 [ECF No. 118 p. 2].

Here’s what Trump’s objection actually said:

To help find facts, the appointing order authorized a declaration or affidavit by a Government official regarding the accuracy of the Detailed Property Inventory [ECF 39-1] as to whether it represents a full and accurate accounting of the property seized from Mara-Lago. Appointing Order ¶ 2(a). 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. Additionally, the 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. [my emphasis]

The material he couldn’t review was limited to documents with classification markings, not the documents as a whole. And as Cannon notes in a footnote (there’s a reason it’s in the footnote, which I’ll come back to in a follow-up), Dearie had given Trump the same four days after receiving the materials to review the inventory after he adjusted the deadlines. In spite of the fact that Dearie’s most recent order only envisioned this verification to happen after Trump got the material, Cannon calls it a “pre-review” and “ex ante” process, suggesting Trump would have had to verify the inventory blind.

Perhaps Cannon’s most cynical move, however, came in her order dismissing Dearie’s suggestion that the two sides might have to brief whether Trump should file a Rule 41(g) in this court or before Bruce Reinhart.

As explained in the Court’s previous Order, Plaintiff properly brought this action in the district where Plaintiff’s property was seized [see ECF No. 64 p. 7 n.7 (citing Fed. R. Crim. P. 41(g); United States v. Wilson, 540 F.2d 1100, 1104 (D.C. Cir. 1976); In the Matter of John Bennett, No. 12-61499-CIV-RSR, ECF No. 1 (S.D. Fla. July 31, 2012))].

The 11th Circuit has already ruled that intervening absent any evidence of callous disregard for Trump’s rights was an abuse of discretion.

We begin, as the district court did, with “callous disregard,” which is the “foremost consideration” in determining whether a court should exercise its equitable jurisdiction. United States v. Chapman, 559 F.2d 402, 406 (5th Cir. 1977). Indeed, our precedent emphasizes the “indispensability of an accurate allegation of callous disregard.” Id. (alteration accepted and quotation omitted).

Here, the district court concluded that Plaintiff did not show that the United States acted in callous disregard of his constitutional rights. Doc. No. 64 at 9. No party contests the district court’s finding in this regard. The absence of this “indispensab[le]” factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here. Chapman, 559 F.2d at 406

Even ignoring that two Trump appointees have already told Cannon she was wrong, the sentence before the one Cannon cites here notes the absurdity of filing for a Special Master and a Rule 41(g) motion in the same effort, calling it “somewhat convoluted.”

As previewed, Plaintiff initiated this action with a hybrid motion that seeks independent review of the property seized from his residence on August 8, 2022, a temporary injunction on any further review by the Government in the meantime, and ultimately the return of the seized property under Rule 41(g) of the Federal Rules of Criminal Procedure. 6 Though somewhat convoluted, this filing is procedurally permissible7 and creates an action in equity.

Yet even after straining to approve this in her first review and then getting smacked down by the 11th, Cannon still persists in envisioning that she’ll be able to take government property and give it to Trump.

I suspect Cannon’s wrong about at least one more thing — whether Trump has complied with his deadline to mark privileged material. These issues, however, all exhibit the same dishonesty we’ve seen in the past.

Yet the very same press that Judge Cannon is blowing off nevertheless failed to identify any of these problems.

Current Schedule

September 26: Trump provides designations on potentially privileged materials

October 3: Both sides identify areas of dispute on potentially privileged designations

October 5: Finalize a vendor (Cannon fashions this as a common agreement, giving Trump ability to delay some more)

October 13: DOJ provides materials to Trump (Cannon does not note this does not include classified documents)

By October 14: DOJ provides notice of completion that Trump has received all seized documents

October 19: Deadline for DOJ appeal to 11th Circuit

21 days after notice of completion (November 4): Trump provides designations to DOJ

November 8: Election Day

10 days after receiving designations (November 14): Both sides provide disputes to Dearie

30 days after DOJ appeal (November 18): Trump reply to 11th Circuit

21 days after Trump reply (December 9): DOJ reply to 11th Circuit

December 16: Dearie provides recommendations to Cannon

January 3: New Congress sworn in

No deadline whatsoever: Cannon rules on Dearie’s recommendations

Seven days after Cannon’s no deadline whatsoever ruling: Trump submits Rule 41(g) motion

Fourteen days after Cannon’s no deadline whatsoever ruling: DOJ responds to Rule 41(g) motion

Seventeen days after Cannon’s no deadline whatsoever ruling: Trump reply on Rule 41(g)

I’m going to write up what really happened yesterday — as predicted, virtually all outlets I’ve seen simply quoted what Aileen Cannon claimed she had done, rather than describing what she had actually done.

Before I do that, I want to note that Judge Cannon is stiff-arming the same press that is reporting so credulously on her interventions.

Back on August 31, the press coalition that does such things moved to intervene in the case. Most of it was the same boilerplate the coalition uses for all such motions, but they did cite both sides in the matter calling for transparency.

Former President Trump himself has called for greater transparency. See, e.g., ECF No. 1, at pp. 2-3 (noting personal desire for more openness). The Government has stated likewise. See, e.g., ECF No. 1, at pp. 9-10 (detailing Attorney General Merrick Garland’s statements on why the Government sought to unseal certain search warrant records); see also ECF No. 48, at p. 2 n.1 (noting that the Government is “prepared . . . to unseal the more detailed receipt”).

They described that the government did not oppose the motion and Trump took no position on it. They asked to be heard on the matter on September 1.

The next day, Judge Cannon released the detailed inventory the government had submitted (it has since submitted a slightly revised inventory, but didn’t address the press access.

After the government moved to unseal the privilege status report on September 8, the press coalition submitted their own request for unsealing.

Then, after two weeks had elapsed since their initial motion, the press coalition tried again. They pointed out that if anyone wanted to oppose their intervention, the two week deadline to do so had expired. And they noted that the privilege review status report still remained under seal.

The News Media further note that certain records remain under seal in this matter, namely those docketed at ECF No. 40. The News Media understand ECF No. 40 to contain the Government’s submission regarding its Privilege Review Team’s Notice of Status of the Filter Process. The Government filed a motion to unseal that document (less Exhibits A and B to that filing) on September 8, 2022. See ECF No. 71. The News Media filed a further motion to unseal that court record on September 9, 2022. See ECF No. 79.

But Judge Cannon has simply ignored those requests.

There’s an obvious reason she did so: In her September 5 order first appointing a Special Master, she made claims based on that sealed status report. The claims are not only probably false, but she effectively double counted the potentially privileged materials as both potentially privileged and personal. That was the means by which she found that Trump had a possessory interest in the items seized on August 8. So she likely can’t allow that status report to be unsealed, because if it were, her deceit would become evident.

Ironically (or perhaps cynically), Cannon cited the importance of the perception of fairness in that same ruling relying on the status report she won’t let the press see.

A commitment to the appearance of fairness is critical, now more than ever.

[snip]

As Plaintiff articulated at the hearing, the investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness. See supra Discussion III–IV; see also In re Search Warrant Issued June 13, 2019, 942 F.3d at 182 (“[A]n award of injunctive relief in these circumstances supports the ‘strong public interest’ in the integrity of the judicial system.” (quoting United States v. Hasting, 461 U.S. 499, 527 (1983) (Brennan, J., concurring in part and dissenting in part))).

[snip]

“[E]fficient criminal investigations are certainly desirable,” In re Search Warrant Issued June 13, 2019, 942 F.3d at 181, but so too are countervailing considerations of fair process and public trust.

But she only maintains this perception by stiff-arming the press and hiding that status report.

Thus far, she has gotten away with it. Not only isn’t the press calling her out for stiff-arming them, but they continue to quote what she says rather than reporting on what she does.

Update, 10/4: After she ordered the status report unsealed, Judge Cannon granted the motion to intervene prospectively.

Aileen Cannon, without explaining why she was intervening, just rewrote Judge Raymond Dearie’s work plans regarding the Special Master review. This was effectively a de novo review before Dearie issued his final decision in the matter.

With no justification (particularly given the way Dearie has ceded to multiple issues Trump has raised), and after having been scolded by the 11th Circuit for her improper claims of jurisdiction, she effectively just eliminated any claim that the Special Master Trump picked and she appointed is a neutral observer.

Altogether she:

• Excused Trump from having to lodge challenges to the inventory (while misrepresenting the current deadlines for doing so)
• Accepted Trump’s claims about the timing of vendors even though DOJ assumed that part of the task
• Bought Trump’s dodgy claim there are 200,000 pages of documents before DOJ could lodge a correction
• Ignored Trump’s own hints they missed the one deadline they’ve faced so far
• Invented claims about how long it took DOJ to conduct an initial review
• Extended her own deadlines to make sure that nothing would happen until after midterms
• Claimed (even after the 11th Circuit said differently) that there was no jurisdictional dispute over Rule 41(g) motions

I’ll further substantiate these details tomorrow.

It’s an obvious power grab to ensure her own intervention doesn’t backfire on Trump.

Nothing is surprising about this. It’s not even surprising how shamelessly she has intervened.

The only matter of suspense is how honestly reporters will report this naked power grab.

SDNY just unsealed an indictment against Oleg Deripaska and three others for sanctions violations. Just one person — naturalized US Citizen Olga Shikri — was in the US to be arrested. The other main consequences from this indictment will be the forfeiture of property related to the sanctions violations. The indictment lists the three properties that were searched last year.

The central allegations in the indictment pertain to efforts — successful with a first child, and unsuccessful with a second — to set up Deripaska’s girlfriend to give birth in the US and via that process, obtain US citizenship for the child.

Then, in or about 2020, SHRIKI and BARDAKOVA helped DERIPASKA’s girlfriend, VORONINA, travel from Russia to the United States so she could give birth to DERIPASKA’s and VORONINA’s child in the United States.  Despite DERIPASKA’s ongoing support for the Russian regime, he funded hundreds of thousands of dollars of transactions so that his child could take advantage of the U.S. healthcare system and U.S. birthright.  SHRIKI orchestrated the payment of approximately $300,000 worth of U.S. medical care, housing, childcare, and other logistics to aid VORONINA and DERIPASKA’s efforts to help VORONINA give birth in the United States, which resulted in the child receiving U.S. citizenship.  DERIPASKA counseled VORONINA on obtaining a visa to travel to the United States, including by telling her to be “careful” ahead of an interview by U.S. immigration authorities.  VORONINA thereafter applied for and obtained a U.S. visa for a purported ten-day tourism visit without disclosing her intent to travel and stay in the United States for approximately six months to give birth to DERIPASKA’s child.  Following the birth, SHRIKI, BARDAKOVA, and VORONINA conspired to conceal the name of the child’s true father, DERIPASKA, going so far as to change, slightly, the spelling of the child’s last name.

Later, in or about 2022, at DERIPASKA’s further behest and for his further benefit, SHRIKI and BARDAKOVA attempted to facilitate VORONINA’s return to the United States to give birth to DERIPASKA’s and VORONINA’s second child.  This second attempt included BARDAKOVA and VORONINA’s attempt to use false statements to conceal DERIPASKA’s funding and secure VORONINA’s entry into the United States – an attempt that was thwarted, and VORONINA was denied entry and returned immediately to Istanbul, through which she had flown from Russia to the United States.

In addition to a music studio sold in 2019, the indictment refers to other purchases in the US, including Easter flowers for a US TV host.

BARDAKOVA – largely based in Russia – directed SHRIKI to engage in particular illegal transactions on DERIPASKA’s behalf.  These instructions included directing SHRIKI to obtain U.S. goods and technology for DERIPASKA.  Moreover, between in or about May 2018 and in or about 2020, BARDAKOVA instructed SHRIKI to purchase and send flower and gift deliveries on behalf of DERIPASKA to DERIPASKA’s social contacts in the United States and Canada.  The deliveries included, among others, Easter gift deliveries to a U.S. television host, two flower deliveries to a then-former Canadian Parliament member, and two flower deliveries in 2020 to VORONINA while she was in the United States in 2020 to give birth to DERIPASKA’s child.

Perhaps most interesting to me is that the investigation was active in 2020, in the wake of Geoffrey Berman’s firing. Shriki is accused of destroying records in advance of a September 23 grand jury appearance. This was the period when Barr was furiously cleaning up all remaining traces of the Russian investigation (and it was the same month when Yevgeniy Prigozhin’s Interpol red notice was withdrawn, even though the indictment against him in the US remains).

In Berman’s book (which I’ll write about one of these days), he makes it quite clear Barr was protecting Rudy in this period. Was he also protecting Deripaska?

Update: Interesting timing! Andy Beshear announced he has recouped the $15 Million Matt Bevin dumped in Deripaska’s aluminum venture in KY.

Yesterday, Trump filed the complaints he had originally filed under seal as well as another bid to delay the Special Master process.

I’ll return to both. But I want to look at the basis Trump offers to request a delay: that the documents seized from Trump amount to 200,000 pages.

At the status conference before the Special Master, the Plaintiff suggested that the dates put forth in the Draft Case Management Plan were unlikely to prove feasible in terms of both the likely start of the document flow and the man-hours necessary to review more than 11,000 pages or documents. Indeed, the Plaintiff suggested that a rough rule of thumb in document reviews is 50 pages per hour. Building into his calculations the review and categorization of the filter team documents; the successful recruitment, retention, and start-up operation of a data vendor; and the requisite review and categorization of that many documents led the Plaintiff to suggest mid-October as a completion date. Government counsel assured Your Honor that a minimal adjustment of “a couple of days” was all that was needed, but that otherwise the Plan was perfectly acceptable.

Trump has, so far, never shied away from spinning the facts. And this is the first filing made without Chris Kise’s signature, increasing the likelihood of shenanigans.

This universe of documents reflects the contents of 27 boxes plus the contents of Trump’s desk drawer (ignoring the 520 pages of potentially privileged documents, some of which came from the desk drawers, and all but one email of which Trump has had for 13 days). If the 200,000 number were accurate, every box and the drawer would have, on average, over 7,000 pages of documents, which is far more than even a large case of paper would include (10 reams of paper at 500 pages each, or 5,000). And some of these boxes include books (33 altogether) and clothing or gifts (19 total), which would fill space really quickly.

But even assuming that someone in government told him that the 27 boxes of documents plus the contents of Trump’s desk drawer amount to 200,000 pages of material, even assuming Trump would need to review every page of every government document he stole, this is still misleading.

That’s because the boxes also include clippings, up to 121 in a box, for 1,671 total. A typical news article printed out can run 10 pages or more (recall that Trump’s White House cut his NYT subscription). One “clipping” — in box 27 — spans over four years, July 2016 to September 2020.

This is not a single newspaper article. It might well be an entire blog or website, printed out.

And if these boxes resemble the ones delivered to NARA at all, they are largely clippings, with documents interspersed.

The NARA Referral stated that according to NARA’s White House Liaison Division Director, a preliminary review of the FIFTEEN BOXES indicated that they contained “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records, and ‘a lot of classified records.”

In other words, there’s a lot of fluff in these boxes. Fluff that will not need extensive review, because they’ve been seized because they help investigators understand the other items in those boxes.

And Trump is using that fluff to draw out the Special Master process.

I wasn’t going to weigh in on the latest kerfuffle over Maggie Haberman. She wrote a book. It reveals things that would have been useful to know years ago. On several key points (such as what Trump did with the Strzok and Page texts), she seems unaware of related details that undermine her claims to exclusive smarts. The kerfuffle is not that interesting to me.

But Dan Drezner said two things in defense of her that are so fascinating, I couldn’t resist.

His most substantive defense of Maggie, bullet point 1, halfway into his post, is that most other politicians would not have remained standing after her stories.

Haberman is a pretty great reporter! Her stories on Trump were chock-full of tidbits that would have destroyed the standing of most other politicians. That Trump remained standing (sort of) after every one of her bombshell stories is a source of frustration to many, but Haberman is hardly to blame for this.

Drezner, who is a news-savvy political science professor with a column, not a journalist, spends much of the rest of his post lecturing about how journalism works.

For all the lecturing, he doesn’t note the most curious journalistic fact about Maggie’s book tour, at least to me: not that she delayed stories for the book, not necessarily that she’s telling stories she could have told in 2016 or 2018 or 2020 but did not, but that none of the teaser exclusives are being published at the NYT. The Atlantic, CNN, Axios, WaPo’s own Trump-whisperer — they’re the ones getting traffic from Maggie’s tidbits this week, not the NYT. After I started this, Joe Klein — better known as Joke Line!! — did a fawning review of the book in the NYT, but that’s not news or even, given that it was written by Joke Line, marginally reliable (though it may nevertheless be the most unintentionally insightful piece on the book).

When James Risen’s book about George Bush’s war on terror abuses was shunned by the NYT, it was a symptom of far more significant problems at the newspaper, problems that had to do with that outlet’s relationship to the Presidency (or perhaps Vice Presidency). Who knows whether that’s the case here. But it does raise questions about whether something is going on that explains NYT’s choice to let their star Trump-whisperer scoop them in virtually all the competing outlets — or whether they even had a choice in the matter.

Like I said, Drezner is a political science professor, so perhaps it was no surprise he missed what I find to be a more interesting curiosity about Maggie’s book blitz.

But he’s a political science professor, and so I would have welcomed some reflection about why he believes most other politicians, but not Trump, would have been destroyed by Maggie’s tidbits. Do Maggie’s strengths and weaknesses as a journalist offer any insight into Trump’s unique resilience? Is she a symptom of it? Or one of the causes? Those seem like utterly critical questions for political science professors as we try to stave off fascism in the United States.

As an access journalist, Maggie rises and falls with the subjects of her access. And this book — the payoff for years of access — is not just a story about Trump. It’s a story of her access, the transactional relationship it entailed, what Trump does with those he has selected to be witnesses to his power.

In the Atlantic excerpt of her book, Maggie famously described Trump likening her to his psychiatrist. She used that as a cue to close the piece with her wisdom about Trump — written in the first person but often, not always, quoting Trump’s direct speech, heightening both her own status as omniscient narrator but also the degree to which she is a manufactured character in her own book.

Then he turned to the two aides he had sitting in on our interview, gestured toward me with his hand, and said, “I love being with her; she’s like my psychiatrist.”

It was a meaningless line, almost certainly intended to flatter, the kind of thing he has said about the power of release he got from his Twitter feed or other interviews he has given over the years. The reality is that he treats everyone like they are his psychiatrists—reporters, government aides, and members of Congress, friends and pseudo-friends and rally attendees and White House staff and customers. All present a chance for him to vent or test reactions or gauge how his statements are playing or discover how he is feeling. He works things out in real time in front of all of us. Along the way, he reoriented an entire country to react to his moods and emotions.

I spent the four years of his presidency getting asked by people to decipher why he was doing what he was doing, but the truth is, ultimately, almost no one really knows him. Some know him better than others, but he is often simply, purely opaque, permitting people to read meaning and depth into every action, no matter how empty they might be.

We’re all like Maggie, omniscient narrator Maggie explains, all just bit players serving as a sounding board to witness him ramble for 20 minutes, all the while cutting us off so he can find the precise word he wants. But maybe not. In the next paragraph, first person Maggie reminds us that everyone else asks her, the sounding board Trump likens to his shrink, to “decipher” him. And this woman who stages herself as a participant in three interviews in this piece, concludes not that she’s got no insight, but that he’s simply opaque, something that we — including Maggie the character portrayed interviewing Trump — project our interpretations of depth onto.

Maggie sells herself as the false promise that you might get to know Trump through his quoted lies and not through his means or his deeds, not through understanding how those lies and the way they are circulated wielded power.

And that, Drezner observes, didn’t end up sticking to Trump the way it would other politicians. That seems like a really important insight.

Which brings me to the other thing Drezner set me off with.

The best explanation of Maggie’s work he offers — and it’s a frightfully good explanation — is the way he starts his post:

When I was curating the Toddler-in-Chief thread on Twitter and adapting it into The Toddler in Chief, I leaned pretty hard on Maggie Haberman’s reporting for the New York Times. I literally said, “Maggie Haberman’s reportage… is all over that thread.”

Drezner was talking about his interminable chronicle of Trump’s tantrums. Each tweet screen capped an example of Trump’s closest aides bitching to someone — and yes, that someone was often Maggie — about how they had to coddle Trump, how they built the entire Administration to cater to Trump’s every mood or emotion. In each tweet, Drezner the political science professor would categorize this report as yet more proof that Trump was not “growing into the presidency.” I took the observation as shorthand for false expectations of normality after Trump’s election, a hope that it wouldn’t be so bad after Trump came to understand the gravity of the office. Drezner contines to cling to that observation, even after Trump’s failed coup attempt.

I found the series funny and occasionally baited Drezner on it. It was a worthy observation about false reassurances certain pundits made about Trump. But it ended up being an inadequate rubric for understanding the damage Trump could do as we all laughed at his ineptitude.

In retrospect there were probably better ways to try to convey the danger posed by Trump than to serially mock him on Twitter, reinforcing the editorial decisions that treated his tantrums but not his actions as the news, even while exacerbating the polarization between those who identified with Trump’s tantrums and those who with their fancy PhDs knew better.

And Drezner’s first impulse, when defending Maggie’s journalism, was to point to the sheer number of times she obtained a hilarious quote that served as another artifact in a never-ending string of news stories that treated Trump’s tantrums as the news, rather than the actions Trump pulled off by training people to accommodate his tantrums.

Those stories, individually and as a corpus, revealed Trump to be a skilled bully. But those stories of Trump’s bullying commanded our attention, just like his reality TV show did, and reassured him that continued bullying would continue to dominate press coverage.

That press coverage, I’m convinced, not only was complicit in the bullying, but also served as a distraction from things that really mattered or levers that we might have used to neutralize the bullying.

It was power by reality TV. And Maggie Haberman was and remains a key producer of that power.

Update: Drezner did a really thoughtful response here. I totally agree with this point:

The part unique to Trump is his abject lack of shame. Some scandals that bring politicians down involve illegality, but most involve the revelation of actions or statements that are either embarrassing or completely at odds with their public positions. Most politicians are human beings who embarrass easily, and so are vulnerable to scandal. They will withdraw from the stage to avoid further unwanted attention. Trump’s entire career, by way of contrast, gloried in scandal. During the 2016 campaign he contradicted himself constantly, said and did repugnant things, and did not care a whit. As Ezra Klein noted way back in 2015, that was Trump’s political superpower: “This is Donald Trump’s secret, his strategy, his power…. He just doesn’t fucking care. He will never, ever give an inch. Better to be a monster than a wuss. You cannot embarrass Donald Trump.”

This would not have mattered if two other trends that I discussed at length in The Ideas Industry had not also kicked in: the rise in political polarization and the erosion of trust in institutions. These two trends created a permission structure in which ordinary Republicans could dismiss damning Maggie Haberman stories in the New York Times as fake news. Even if Haberman (and every other reporter) had published absolutely everything she knew in real time, it would not have affected this dynamic.

His discussion of how great stories reporting on scandal barely blip in the coverage, however, goes right to my biggest gripe with Maggie. Drezner denies that Maggie’s reporting serves to distract from real crimes.

The part unique to Trump is his abject lack of shame. Some scandals that bring politicians down involve illegality, but most involve the revelation of actions or statements that are either embarrassing or completely at odds with their public positions. Most politicians are human beings who embarrass easily, and so are vulnerable to scandal. They will withdraw from the stage to avoid further unwanted attention. Trump’s entire career, by way of contrast, gloried in scandal. During the 2016 campaign he contradicted himself constantly, said and did repugnant things, and did not care a whit. As Ezra Klein noted way back in 2015, that was Trump’s political superpower: “This is Donald Trump’s secret, his strategy, his power…. He just doesn’t fucking care. He will never, ever give an inch. Better to be a monster than a wuss. You cannot embarrass Donald Trump.”

This would not have mattered if two other trends that I discussed at length in The Ideas Industry had not also kicked in: the rise in political polarization and the erosion of trust in institutions. These two trends created a permission structure in which ordinary Republicans could dismiss damning Maggie Haberman stories in the New York Times as fake news. Even if Haberman (and every other reporter) had published absolutely everything she knew in real time, it would not have affected this dynamic.

But Maggie’s access and the way Trump’s associates exploit her — gleefully — makes it really easy to play her to kill a story. Her limited hangouts then become the breaking news, rather than the real details disclosed by an investigation.

Both on specific parts of the Russian investigation — such as Paul Manafort’s sharing of campaign strategy in the same meeting where he talked about $19 million in financial benefits to him — and more generally — such as Maggie and Mike Schmidt’s demonstrably false claim that Trump was only investigated for obstruction — stories involving Maggie helped Trump and his associates cover up his criminal exposure.

Trump appears to be accusing his hand-picked Special Master, Raymond Dearie, of violating Judge Aileen Cannon’s rules under seal.

In a government request for an extension of deadlines that appears to be necessitated because document review vendors either refuse to work with Trump, or Trump has made himself impossible to work with, it lays out three objections Trump made to Dearie’s September 22 case management plan under seal (such objections were due Tuesday). At least one of the complaints appears to accuse Dearie of violating Judge Cannon’s September 15 appointment order.

Below, I’ve shown passages from Cannon’s order, Dearie’s implementation of that order, and DOJ’s response to Trump’s objection; that helps to show what Trump’s complaints must be.

Cannon order:

Verifying that the property identified in the “Detailed Property Inventory” [ECF No. 39-1] represents the full and accurate extent of the property seized from the premises on August 8, 2022, including, if deemed appropriate, by obtaining sworn affidavits from Department of Justice personnel;

Dearie order:

No later than September 30, 2022, Plaintiff shall submit a declaration or affidavit that includes each of the following factual matters:

a. A list of any specific items set forth in the Detailed Property Inventory that Plaintiff asserts were not seized from the Premises on August 8, 2022.

b. A list of any specific items set forth in the Detailed Property Inventory that Plaintiff asserts were seized from the Premises on August 8, 2022, but as to which Plaintiff asserts that the Detailed Property Inventory’s description of contents or location within the Premises where the item was found is incorrect.

c. A detailed list and description of any item that Plaintiff asserts was seized from the Premises on August 8, 2022, but is not listed in the Detailed Property Inventory.

Sealed Trump objection?

DOJ response:

First, contrary to Plaintiff’s objection, the verification required by Plaintiff of the Detailed Property Inventory is a condition precedent to the document categorization and privilege review. The Special Master needs to know that that he is reviewing all of the materials seized from Mara-Lago on August 8, 2022 – and no additional materials – before he categorizes the seized documents and adjudicates privilege claims.

Cannon order:

Plaintiff’s counsel shall review the materials, allocate each of them to one of four mutually exclusive categories listed below, and prepare and provide to the Special Master a log stating, for each item or document, the particular category claimed and on what basis.

The four categories are as follows:

aa. Personal items and documents not claimed to be privileged;

bb. Personal documents claimed to be privileged;

cc. Presidential Records not claimed to be privileged; and

dd. Presidential Records claimed to be privileged.

Dearie Order:

Plaintiff shall provide the Special Master and the government with an annotated copy of the spreadsheet described above that specifies, for each document, whether Plaintiff asserts any of the following:

a. Attorney-client communication privilege;

b. Attorney work product privilege

c. Executive privilege that prohibits review of the document within the executive branch;

d. Executive privilege that prohibits dissemination of the document to persons or entities outside the executive branch;

e. The document is a Presidential Record within the meaning of the Presidential Records Act of 1978, 44 U.S.C. § 2201, et seq. (“PRA); see id. § 2201(2); and/or

f. The document is a personal record within the meaning of the PRA; see id § 2201(3).

Sealed Trump objection?

DOJ response:

Second, that the Amended Case Management Plan has six categories (ECF 112, at 3) and the Appointment Order four (ECF 91, at 1) is entirely a function of the fact that the four categories in the Appointment Order speak of “privilege” in general and do not (as the Amended Case Management Plan does) differentiate between attorney-client and Executive privilege. The Amended Case Management Plan is entirely consistent with the Appointment Order. Plaintiff’s objection has no logical basis.

Cannon order:

Evaluating claims for return of property under Rule 41(g) of the Federal Rules of Criminal Procedure;

Dearie order:

Once the Court has reviewed the Special Master’s recommendations and ruled on any objections thereto, the Special Master will, if necessary, consider Plaintiff’s motion for the return of property under Federal Rule of Criminal Procedure 41(g). Plaintiff shall submit a brief in support of the motion no later than seven calendar days after the Court’s ruling on the Special Master’s recommendations. In addition to addressing the merits of the Rule 41(g) motion, Plaintiff’s brief should address specifically whether the motion may properly be resolved in this action or must instead be decided as part of the docket in the action in which the relevant warrant was issued, 9:22-MJ-08332-BER.

Sealed Trump objection?

DOJ response:

Third, the Special Master’s request for briefing on a particular point of law is similarly consistent with the Appointment Order. The government will brief that point of law. It behooves Plaintiff to brief that point as well.

It’s fairly clear why Trump has leveled these objections, and equally clear why he filed them under seal.

If Trump complies with the order to confirm or deny the inventory, it will require him to admit there are 103 documents bearing classification marks that he didn’t turn over in response to a subpoena, an element of the obstruction and possibly the Espionage Act offense. To make any claims about the inventory, Trump will quite literally either have to confess he committed at least one crime or his lawyers will have to affirmatively lie (and do so without access to the other FBI evidence documenting their search protocol that would disprove the lie).

With regards the designations, labeling documents with six non-exclusive labels effectively amounts to declaring the basis underlying Cannon’s four “mutually exclusive” designations, but it also requires Trump to lay out where he disputes the law as it actually exists. Adhering to the meanings of “personal” and “Presidential” records as laid out in the Presidential Records Act would accept the legal guidelines imposed by that. Requiring Trump to label something as both Presidential and Executive Privileged requires him to accept that personal items cannot be the latter. Making claims of Executive Privilege — which must be made to treat such things as privileged — would make any appeal easier. Distinguishing between Executive Privileged documents that can and cannot be shared within the Executive branch will similarly make DOJ’s appeal easier and help prove that Trump withheld the latter to obstruct the function of the Archives. And to distinguish between Attorney-Client and Executive privilege would be to concede that government lawyers didn’t work for Trump. To be sure: Cannon did say Dearie should use four mutually exclusive categories, but these six are the ones that Dearie would have to adjudicate and (as noted) Trump would always need to affirmatively claim both attorney-client and Executive Privilege. Dearie can’t do his job if Trump won’t specify what kind of privilege he is claiming here. But by suggesting Dearie’s order is inconsistent with Cannon’s order (as DOJ’s response suggests Trump is doing), Trump may be trying to hasten to the point where Cannon fires Dearie and replaces him with someone who’ll hold Trump to a standard other than that required by a Special Master review, not to mention the Presidential Records Act.

Briefing the 41(g) issue will make it easier for DOJ to show, on appeal, that Judge Cannon overstepped by asserting jurisdiction.

By keeping all these objections under seal, Trump makes it harder for the press to call him (and Cannon) out for — as Dearie noted in the hearing — “having his cake [of a civil suit] and eating it too,” demanding relief without being willing to put in writing what claims he himself is making. His objections, whatever they are, must be written forms of the same complaint that Jim Trusty made in the hearing.

James Trusty, one of Trump’s attorneys, called it “premature” for Dearie to consider that issue right now. “It’s going a little beyond what Judge Cannon contemplated in the first instance,” he said.

In one of several moments of palpable tension with the Trump team, Dearie replied: “I was taken aback by your comment that I’m going beyond what Judge Cannon instructed me to do. … I think I’m doing what I’m told.”

By attempting to do this under seal, then, Trump is also attempting to hide the nature of his complaints in case Cannon decides to respond by firing Dearie. If she fires Dearie with this public (and she might!), it’ll make it all the easier for the 11th Circuit to reverse the entire appointment as an abuse of civil procedure.

Cannon is still hiding the filter team status report that would show that she made false claims about its contents to even claim jurisdiction, and she may well hide Trump’s objections for the same reason: because they make her own actions all the more improper.

DOJ repeated the same point Dearie made in the hearing: as the plaintiff before Cannon, Trump bears the burden of proof, not DOJ.

Plaintiff brought this civil, equitable proceeding. He bears the burden of proof. If he wants the Special Master to make recommendations as to whether he is entitled to the relief he seeks, Plaintiff will need to participate in the process by categorizing documents and providing sworn declarations as the Amended Case Management Plan contemplates.

But somehow, none of the crack lawyers representing Trump or Judge Cannon thought through that if this is really treated as a civil suit, to prevail, Trump will need to make affirmative assertions that DOJ can then use in a criminal case against him.

Update: Trump has now released his objections, which he stated he didn’t want to release. He submitted it with this letter, which claims the government seized 200,000 pages of documents from his home.