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Even by the standards of Donald Trump’s sparklemagic lawyers, last night’s reply to prosecutors’ objections was a spectacular debacle. From the first page where they described the search pursuant to a warrant as “legally unsupported,” to the last where they impugned the Justice Department’s ethics while admitting that they still hadn’t managed to effect service on the US Attorney’s Office, Trump’s counsel was, to put it bluntly, off the f-cking chain.
In contrast to the sober response filed the night before by the prosecutors, in which they pointed out that the former president has no right to possess government documents and cannot assert executive privilege as against the executive branch, Trump’s legal team unleashed a torrent of abuse unmoored from reality and the Federal Rules of Procedure.
It is the reasonable expectation of privacy in one’s home that triggers the obvious standing of the homeowner to contest a search on those premises. To suggest that the seizure of allegedly “illegally possessed” items negates standing literally distorts the entire concept of the Wong Sun “fruit of the poisonous tree” doctrine into the bizarre notion that, if the recovered property is potentially illegal to possess, then the homeowner can never challenge the basis of the intrusion. This argument by the Government is premature and deeply flawed, as more described in more detail below
In fact, the former president never challenged the “the basis of the intrusion.” What he did was ask for a special master to sort through the evidence seized. Only he waited a full two weeks to do it, by which time the government filter team had already weeded out anything that was attorney-client privileged, and the FBI went through the rest, handing off the classified documents to the Director of National Intelligence to assess the damage from highly sensitive information which might have leaked out of the very secure pool shed at the former president’s private club.
Their theory appears to be that this is all just a silly dispute under the Presidential Records Act, which has no criminal enforcement mechanism, and anyway Trump retains some residual executive power and so it’s fine, actually that the former president made off with highly classified documents. The National Archives (NARA) should have continued asking nicely for Trump to return them, more or less forever, and had no right to refer the matter to the Justice Department at all.
Indeed, the warrant intentionally blurs important distinctions in referring to the ability of FBI agents to seize “Presidential Records” (the PRA never concerns itself with traditional classification labels) while wrongfully suggesting the applicability of the Espionage Act and referring to expectations of recovering classified or highly classified documents. For the moment, counsel for Movant can only speculate on how the affidavit in support of the search warrant characterized the Government’s intended escape from the PRA paradigm. What is also noteworthy here is that, as admitted in the Response, just weeks after President Trump voluntarily complied with a National Archives and Records Administration (“NARA”) request for Presidential records and turned over 15 boxes, NARA simply ignored the PRA and initiated a criminal investigation.
There is a procedure to assert executive privilege under the PRA, and it does not involve simply absconding with government documents and refusing to give them back. Nonetheless, Trump demands that US District Judge Aileen Cannon appoint a special master to conduct a review not just for attorney-client privilege, but also for documents potentially covered by executive privilege. Despite the fact that the sitting president has not asserted any such privilege, and anyway the DOJ is part of the executive branch. And if the special master could be a pal and save Trump the trouble of filing a Rule 41 motion for the return of personal property, that would be swell.
In a word the whole thing was preposterous.
And yet, Judge Cannon, a 41-year-old Trump appointee who was confirmed a week after Trump lost the election, seemed inclined to grant at least some of the relief requested.
“Ultimately, what is the harm of appointing a special master to review these materials?” she asked at today’s hearing, as reported by Reuters. “What I’m wondering from the government — what is the harm beyond delaying the investigation?”
Note that this conveniently elides the question of whether there are grounds to appoint a special master at all, which, as a terrific amicus brief on behalf of multiple former government officials points out, there are not.
But Politico confirms that Judge Cannon, who already announced her preliminary intention to appoint the special master, might go so far as to grant the request for a review which includes executive privilege.
While signaling that she will probably allow the DNI to conduct its intelligence assessment, Judge Cannon remarked that the issue of the former president’s power to assert executive privilege was not settled. This would appear to conflict with a recent ruling, which the Supreme Court refused to block, permitting NARA to turn documents over to the January 6 Select Committee despite Trump’s assertion of executive privilege — and that case actually did involve a “release” to a party outside the executive branch.
Judge Cannon agreed from the bench to release a more particularized list of the items seized. She will issue her ruling on the master issue in writing later.
U.S. judge signals willingness to appoint special master in Trump search case [Reuters]
Judge considers temporary limit on DOJ access to Trump documents [Politico]
Trump v. United States [Docket via Court Listener]
United States v. Sealed Search Warrant [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
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