August 22, 2022
Trump’s special master request is senseless.
As noted in Vice News: “Trump’s request to freeze the review of the documents seized by the FBI is ‘factually baseless and legally frivolous,’ one former federal prosecutor said.”
Vice offered this description of Trump’s request:
“Former President Donald Trump has pulled plenty of odd moves in the courtroom over the course of his turbulent career.Even by those standards, his latest legal filing is pretty out there.
On Monday, August 22, 2022, Trump’s attorneys asked a Florida judge to freeze the government’s review of documents seized by the FBI from Trump’s Mar-a-Lago club two weeks ago. But the request his attorneys delivered was downright weird, surreally late, plagued by sloppy errors, probably futile—and possibly self-defeating, according to lawyers who looked at the filing.
‘I think it’s factually baseless and legally frivolous, and I’m surprised lawyers would sign their names to this,’ Barbara McQuade, the former top federal prosecutor in Detroit, told VICE News.
‘This move just seems completely bizarre, and it’s either because his lawyers are incompetent or this is a public relations effort rather than a legal one,’ said Rebecca Roiphe, a former New York prosecutor and now an expert on prosecutorial ethics at New York Law School.
The stakes are high for Trump, who is being criminally investigated for possible violation of the Espionage Act after reportedly hiding 300 classified documents in his private Palm Beach club. The resulting political and legal battle over the Mar-a-Lago search has the potential to determine whether Trump ends up in prison if he’s criminally charged—or help send him back to the White House, if he can turn outrage among his supporters into campaign momentum.
Despite the urgency of the situation, Trump’s request arrived very, very late.
The FBI pulled 11 sets of classified documents and a total 26 boxes worth of materials from Mar-a-Lago on August 8—meaning the feds have had plenty of time to flip through the documents at a leisurely pace, even if they have weekends off.
In the meantime, Trump’s lawyers had time to appear frequently on TV news segments railing about the search, while Trump and his allies warned of payback when Republicans are back in power.
Even if the filing was submitted for PR purposes rather than as part of a sober legal strategy, it could still blow up in Trump’s face, lawyers pointed out.
That’s because it opens the door for a response from the Department of Justice that could make Trump look worse than he already does.
The DOJ and FBI have been reluctant to speak openly about the case, and Attorney General Merrick Garland recently stressed his department ‘will speak through its court filings’ rather than issue press releases.
Trump’s latest filing invites exactly that kind of court filing in response, which could prove damaging for Trump, according to Andrew Weissman, a former federal prosecutor and member of the Mueller investigation into Trump’s ties to Russia.
‘New Trump Florida filing opens a wide door for DOJ to walk through,’ Weissman wrote on Twitter, adding that Garland can now “address all the factual lies and misrepresentations.”
Trump’s lawyers asked the judge to appoint a third-party ‘special master’ to inspect the files taken from Mar-a-Lago, and to order the FBI and DOJ to stop reviewing the files in the meantime.
Special masters are commonly used when the FBI searches a lawyer’s office to filter out documents to be shielded for attorney-client privilege. For example, judges appointed special masters when the FBI raided Trump lawyers Rudy Giuliani and Michael Cohen in past criminal probes.
But in this case, even the judge who received Trump’s filing declared herself confused about exactly what he’s seeking.
Judge Aileen Cannon, a Trump appointee, responded Tuesday afternoon with a list of questions in an order instructing Trump’s lawyers to clarify exactly what they want and why they believe they have a legal basis to ask for it.
Judge Cannon’s tone seemed ‘skeptical,’ tweeted New York Times journalist Charlie Savage. And little wonder: Lawyers called the legal reasoning in the document baffling.
Trump based his demand for a special master on his claim of executive privilege, which is the legal principle that some White House documents and conversations can be kept private.
But here, Trump is making executive privilege claims against the executive branch itself, in the form of the DOJ and the FBI. In doing so, he’s blithely ignoring the fact that he’s no longer the president.
‘Executive privilege is meant to protect certain internal statements from disclosure to the public or even another branch of government,’ said Roiphe. ‘Executive privilege documents belong to the executive and are supposed to be in the national archives—and by claiming executive privilege he’s effectively admitting these documents are not supposed to be in his possession.’
Then there are the downright silly errors. Two Trump attorneys, Evan Corcoran and Jim Trusty, had their requests to appear in the Florida court from out of state denied because they didn’t fill in the paperwork correctly. The judge invited them to submit again.
‘This document is something that, if a first-year lawyer in my law firm submitted it to me, I would not allow it to be filed, or put my firm or my name on it. It is embarrassing,’ Renato Mariotti, a former federal prosecutor, told CNN.
While former presidents are always likely to be given a serious and deferential hearing in any court, the end result of this particular legal wrangle is unlikely to be a win for Trump, said Roiphe.
‘As a legal matter, this just isn’t going to succeed,’ she said. ‘I don’t think he’ll get a special master. I don’t think he’ll get a second review of the search warrant and a return of his documents.’
Trump might be able to slow down the proceedings, she said. ‘It could create delay, but I don’t think even that is very likely,’ Roiphe said.”
The full text of Trump’s “Motion For Judicial Oversight And Additional Relief” can be viewed in the online reader below or viewed in a larger format by clicking on the link “Trump’s Special Master Motion.” Clicking the “Download” button allows the full text of the document to be downloaded to your device. You can also share this post on Twitter and Facebook.
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