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Under Seal, Trump Accuses Hand-Picked Special Master of Not Following Orders

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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.

Trump Wants Two Weeks to Review 64 Documents; DOJ Expects Review of 500 Documents a Day

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Yesterday, Judge Raymond Dearie submitted his draft work order to the two sides in the Trump Special Master review and then they responded (DOJ; Trump). Dearie didn’t release his draft publicly but Trump’s wails about it hint at some of its contents.

As a number of people have noted, Trump objects that Dearie has set a deadline for Trump’s initial designation of materials by October 7, thereby allowing the debate over the seized materials to end by November 30. But Trump wants to ignore that there’s going to be an extended debate about this and clearly would like to extend this past Judge Aileen Cannon’s November 30 deadline.

The District Court’s order indicates a presumptive end-date of November 30, 2022. The proposed calendar, circulated today to the parties only, compresses the entirety of the inspection and labeling process to be completed by October 7, 2022.

To be fair to Trump, the government’s plan seems to envision this process taking an extra week, until October 15 or so.

Trump wails even more shrilly about the fact that Dearie first asked why any Rule 41(g) litigation would happen in this Special Master proceeding rather than the docket where the warrant was issued and then asked for a list of documents Trump had declassified.

[W]e are concerned that it contemplates resolving issues that were not raised by Judge Cannon in her order, her order denying the stay, or oral argument. Specifically, Judge Cannon was aware of the likelihood of eventual Rule 41(g) litigation and established a process by which the Special Master would evaluate any such claims before reporting and recommending to the Court. While the Plaintiff is, of course, willing to brief anything ordered by the Court under the auspices of the Special Master, we are concerned that the Draft Plan directs the Plaintiff to address whether Rule 41(g) litigation should be litigated under Case No. 9:22-MJ-08332-BER. The Plaintiff respectfully sees no indication the District Court planned to carve out related litigation for a merits determination by the issuing magistrate for the warrant in question. Most importantly, none of the District Court’s Orders have ever indicated that this was even a consideration.

Similarly, the Draft Plan requires that the Plaintiff disclose specific information regarding declassification to the Court and to the Government. We respectfully submit that the time and place for affidavits or declarations would be in connection with a Rule 41 motion that specifically alleges declassification as a component of its argument for return of property. Otherwise, the Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.

Trump’s response to this is telling. He refuses to reveal which documents he declassified because (he claims — remember none of his lawyers are NatSec lawyers) it would be a defense to the merits of any subsequent indictment.

That ignores, of course, the obstruction statute, which asked for documents marked classified, not classified documents. But it’s also a confession that Trump’s lawyers don’t understand how classification works. If these documents were declassified, there would need to be a record.

This effort is significantly an attempt, pre-indictment, to make an argument about the classification status of the documents. If Cannon were to treat Trump’s claims of declassification seriously, for example (and everything we’ve seen from here says she would happily do so to help Trump out of his legal jam), it would make it far harder to sustain a claim that the documents were National Defense Information. But this stunt may soon meet diminishing returns, unless and until Dearie (who knows more about national security than any of Trump’s lawyers and Cannon) is fired.

As I noted in this post, in her order appointing Dearie, Cannon edited the boilerplate language in Special Master orders to give herself the authority to remove Dearie, unrelated to whether his process gets bogged down.

More interesting still: It says Trump won’t submit any declarations until he’s doing so in the process of claiming he owns these formerly classified documents. Cannon, of course, should have demanded that he at least assert that he had declassified some of these documents to sustain her usurpation of Executive Branch authorities, if not a log of which ones. If and when Cannon fires Dearie for overstepping her neat plan to stave off a Trump indictment, this point of dispute will become central. But by then, Cannon’s own nonsensical rulings may also be exposed.

There’s an even more telling dispute between the government and Trump, though. The government’s filing basically enters into this process with so much good faith that it squeaks: not contesting the conflicts of his lawyers, not disclosing what other parts of Cannon’s order they may still appeal, not even suggesting they’ll continue to appeal the order on classified documents if the 11th Circuit does not issue a stay. On that point, they say simply, they’ll return to it.

1 The government applied to the Eleventh Circuit for a stay last week and Plaintiff’s response is due tomorrow at noon, before the Master’s preliminary conference. If the Eleventh Circuit stays Judge Cannon’s order with respect to documents with classification markings, then the Special Master will not review the documents with classification markings. If the Eleventh Circuit does not stay the review of the documents with classification markings, the government will propose a way forward.

The government is approaching this review as if Dearie will quickly resolve all these issues and they can move on with their investigation. It’s worth noting, to the extent that the NSD lawyers involved have been involved in FISA proceedings, they may well understand how Dearie likes to work in consultative discussions not dissimilar from this one.

Much of the rest of the government filing basically addresses practicalities: How to share these documents. It proposes to get Relativity (a legal discovery software tool) to scan and upload everything within days. Trump will have to pay for the license, because he has to pay for all of this.

The government proposes that Trump’s team review 500 documents a day, which will result in a 22-day review time period after the documents are scanned, which would complete them all by around October 15, with a few days to start the scanning process.

But it’s clear Trump wants to do none of this work (indeed, he likely wants to delay until they’ve seen all the documents at once). That’s evident because he’s proposing a two week deadline for the 64 potentially privileged documents that (all sides note) the government provided Trump on September 16.

Plaintiff to create privilege log (with basis) for Exh. A documents: TBD (two weeks?)

This is insane! Trump wants two weeks to delay reviewing 64 documents he had already had three days to review by yesterday. According to both the government and Dearie proposals, Trump should have finished with that document review on Saturday.

I think there’s a non-zero chance Dearie gets fired, and I assume Trump just hopes that happens before the government has won a stay of Cannon’s order prohibiting them from accessing the classified records and before he has admitted that most if not all of these potentially privileged documents are not.

Axios reported that Trump believed Dearie would be suspicious of the FBI based on his experience with the Carter Page order, something I had already contemplated in this thread. Even if he were, though, he’d be suspicious within the context of the law. Moreover, as I noted, there was still plenty in the application to sustain suspicion in Page, including that he seemed to know in advance of the October surprise that WikiLeaks delivered on October 7 and he destroyed a phone as soon as the investigation into him became clear.

And unless and until he gets fired, Dearie seems to plan to make these legal issues public — something that never works out well for Trump.

Judge Aileen Cannon Thinks 64 Tax and Medical Records No Investigator Has Read are More Important than 11,282 Stolen Government Documents

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I’ll have a lot to say about Judge Aileen Cannon’s outrageous order enjoining the government from conducting a criminal investigation into violations of the Espionage Act. I want to start with the way that she has chosen to risk Donald Trump’s attorney-client privilege in order to vindicate it.

Cannon didn’t just order a Special Master be imposed to review a subset of 520-pages of material set aside as potentially privileged (something that would be unexceptional, but something that would actually give Trump’s lawyers less involvement than the filter team was preparing to give his lawyers last week, when they wanted to hand these documents over directly to Trump’s lawyers).

Those amount to 64 sets of documents out of the 11282 seized on August 8 — less than 4.6% of the seized documents (and likely close to .5%).

She said that because the filter team worked better than mandated by the warrant, it was proof the filter team wasn’t working, and so a Special Master would have to go over everything again.

To begin, the Government’s argument assumes that the Privilege Review Team’s initial screening for potentially privileged material was sufficient, yet there is evidence from which to call that premise into question here. See In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, 11 F.4th at 1249–51; see also Abbell, 914 F. Supp. at 520 (appointing a special master even after the government’s taint attorney already had reviewed the seized material). As reflected in the Privilege Review Team’s Report, the Investigative Team already has been exposed to potentially privileged material. Without delving into specifics, the Privilege Review Team’s Report references at least two instances in which members of the Investigative Team were exposed to material that was then delivered to the Privilege Review Team and, following another review, designated as potentially privileged material [ECF No. 40 p. 6]. Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process.13

13 In explaining these incidents at the hearing, counsel from the Privilege Review Team characterized them as examples of the filter process working. The Court is not so sure. These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material. The Government’s other explanation—that these instances were the result of adopting an overinclusive view of potentially privileged material out of an abundance of caution—does not satisfy the Court either. Even accepting the Government’s untested premise, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the Investigative Team. Perhaps most concerning, the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team [see ECF No. 40]. In sum, without drawing inferences, there is a basis on this record to question how materials passed through the screening process, further underscoring the importance of procedural safeguards and an additional layer of review. See, e.g., In re Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006) (“In United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), for instance, the government’s taint team missed a document obviously protected by attorney-client privilege, by turning over tapes of attorney-client conversations to members of the investigating team. This Noriega incident points to an obvious flaw in the taint team procedure: the government’s fox is left in charge of the appellants’ henhouse, and may err by neglect or malice, as well as by honest differences of opinion.”).

What happened, we can tell from context and the available inventory, is that after an initial privilege review released material to the investigative team, the investigative team found two individual documents seized from the storage room that might be privileged, and then turned them over to the filter team. That complies, to a T, to the requirements of the law and the warrant (which only required the filter team review stuff from Trump’s office). This is what happens in every single criminal case in the US. But Cannon deemed it as proof of failure, and so used it to require a Special Master review everything anew.

According to her ruling, the government must halt their criminal investigation into 103 stolen government documents with classification marks, 11,179 stolen government documents that lack classification marks, and 1,673 press clippings (she gets these numbers wrong in her order), because 64 sets of documents that the investigative team has not seen yet includes potentially privileged information as well as, “medical documents, correspondence related to taxes, and accounting information” — details that she chose to make public for the first time even while premising the primary grave damage to Trump as leaks to the public.

She won’t let DOJ investigate a crime. But she will let the Office of Director of National Intelligence investigate the damage the crime did.

[T]he Court determines that a temporary injunction on the Government’s use of the seized materials for investigative purposes—but not ODNI’s national security assessment—is appropriate and equitable to uphold the value of the special master review.17

She doesn’t explain how that would work — how the government would (among other things) investigate any damage done by letting uncleared people move these boxes around — without continuing the investigation.

Edelstein: And in addition to the criminal investigation which is obviously a legitimate interest, as the Supreme Court has recognized, there is also the ongoing damage assessment by the intelligence community. This is not an effort that we just undertook. In fact, in that same May 10th letter that I referenced, there is an April communication to Plaintiff’s counsel that emphasizes that the materials had to be reviewed by the FBI in part so that it could coordinate an assessment of the damage that could have resulted from the improper storage of these materials. And if a special master was appointed at this point, that would — and the Government was not able to continue —

THE COURT: So would your position change, for example, if the special master were permitted to proceed without affecting the ODNI’s ongoing review for intelligence purposes but pausing temporarily any use of the documents in criminal investigation? So what I’m saying is no effect on the DNI review, which is ongoing and has been asserted as necessary for national security but then providing a temporary period of time, like I said, for orderly review of the documents seized?

MS. EDELSTEIN: It would not change.

[snip]

BRATT: And I will tell the Court, you know, how it does slow down because in addition to the damage assessment that ODNI is doing, in any retention case, as we call these types of cases, in any illegal retention case under the Espionage Act, we also start looking at, all right, are these documents still classified? So there is a classification review. Classification is different from national defense information under the case law, okay. So even if it is classified, does it contain national defense information even if it is not classified? Does it not contain national defense information? As the Court is aware, we are dealing with over 300 records here. That process has begun. That process needs to continue.

If the Court says only ODNI can look at this for purposes of damage assessment, that is going to interfere with the investigation, and that’s something the Court, I think, has to enjoin us from doing.

Importantly, ODNI cannot do a damage assessment of all the documents stolen by Trump.

That’s because at least three of the classified documents are in the potentially privileged batch. Two are in box 4.

One — a Top Secret document — is in box 29.

The top Espionage experts in the government are investigating this. They will need to be part of any damage assessment. But by taking part in that discussion, they risk tainting the entire investigation because Aileen Cannon thinks that Trump’s privacy interest in a few MAGA hats and tax records his lawyers could have gotten back last week are more important than the 103 classified documents Trump stole.