Tuesday Talk*: Unclassy or Declassified?

It’s not as if the government came up with Raymond Dearie’s name as one of two potential special masters, and almost certainly the only one of the two with any potential whatsoever to be appointed special master. But whichever genius on Team Trump told the rest of the tap room at Mar-a-Lago that he was the perfect choice is going to be forced to spend the rest of his career as Bill Barr’s virtual assistant. Trump asked for Dearie, a very serious guy, and he got him. Uh oh.

The court-appointed “special master” reviewing documents the FBI seized during the Aug. 8 search has asked the former president to disclose details about any materials he claims to have declassified before calling them his property.

At issue are about 100 documents with classification markings, which would presumptively be proof that they were what the marking said they were if the presumption of regularity applied in Judge Cannon’s courtroom. Trump and his proxies have claimed that these documents, top secret, top shmecret, were declassified, as is the authority of a president to do. There are protocols to do so, though they were not made mandatory as what sort of blithering idiot wouldn’t respect the protocols, and even without protocols, the declassification of documents needs to, in fact, happen.

Can it be that a president merely thinks to himself, these docs should be declassified? Or should post hoc be their vibe, that the president ponder any revelation of classified docs as being inherently declassified because anything else would be wrong?

But since the issue is coming before Trump’s pick, Judge Dearie, putting the judge in the position of having to decide whether these classified docs are classified at all, or merely the property of the United States government which not even a former president can take as his own, Judge Dearie decided it would be necessary for him to have Trump establish the parameters of his claim. Team Trump had issues.

In a court filing Monday, Trump’s attorneys urged Raymond Dearie, the senior federal judge based in Brooklyn, to drop a component of his plan that includes asking Trump for those details. Disclosing those during the review, Trump’s attorneys said, was not a requirement of U.S. District Court Judge Aileen Cannon’s order appointing Dearie as special master.

The initial argument is that Judge Cannon never included a requirement in her appointment of Judge Dearie. This is true, but then again, there was a lot that wasn’t included in Judge Cannon’s appointment, such as how Judge Dearie should determine executive privilege for a person who is not the president. Did the appointment limit Dearie to seeking nothing outside of what Judge Cannon expressly required, or to accomplish the end result, the only thing Judge Cannon bothered to mention, in whatever normal and appropriate means he chose?

But Team Trump’s second argument is the more curious one.

[T]he 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.

There are various arguments as to why Trump would object to stating which documents were declassified, and when and how they were declassified. Some have argued that by specifically asserting, under penalty of perjury, that certain documents were declassified, it would be an admission that other documents were not, essentially confessing to a crime for which the search warrant was issued. This argument, of course, anticipates a clear, serious, detailed and thoughtful response to Judge Dearie’s inquiry.

Another theory is that Trump’s lawyers, in anticipation of an indictment, do not want to find themselves locked into facts that may later be critical to the criminal defense. What seems like a good argument at the moment, at least for the purpose of Judge Dearie’s determinations, might end up being a terrible decision in a criminal case. The more flexibility they have to make up whatever stuff best works for them in the moment, the greater the likelihood of creating reasonable doubt.

Yet another theory is that this is all a steaming pile of bullshit created to deflect attention on social media and to assert declassification in an affidavit now would expose Trump to yet another line of criminal prosecution, and he’s run out of criminal defense lawyers if not money to pay them from silly sycophants who eat Ramen noodles five times a week.

Should Trump be required by Judge Dearie now to state, under oath, whether any of the documents at MAL bearing classification markings were declassified, as claimed? Is this a put up or shut up moment? Should it matter for his likely criminal defense later that he was constrained by a factual “truth” before knowing the precise charges against him? Or should Trump be allowed to throw out claims such as declassification without putting himself in a position of accountability?

*Tuesday Talk rules apply.

20 thoughts on “Tuesday Talk*: Unclassy or Declassified?

  1. Mike P.

    Loyalty, it’s a huge thing for Trump. Not so much for Dearie though who by all accounts is the serious type who follows the letter of the law. It would seem that with this request Dearie is telegraphing a clear signal that he’s not going to be the Rubber Stamp that Team Trump thought he’d be.

    When I first read that Garland had approved Trump’s request for Dearie I could almost imagine the odor that permeated the room when Team Trump realized they had overplayed their hand. The fact is I wondered if Trump’s attorneys had set their client up for failure since a quick view of Dearie’s bio would have confirmed his loyalty was to the law and not to a political party.

  2. C. Dove

    Whatever the reason, it’s a *chef’s kiss* example of the idiot, er, idiom: Be careful what you wish for, it just might come true.

    1. Kirk A Taylor

      As a dude with a clearance, this makes my head twitch.
      Regardless of the criminal case, the idea that there is any lack of certainty as to the classification level of a document is insane.

  3. Bryan Burroughs

    It’s a strange legal theory, indeed, that the gov’t should just “take your word for it” ans give you what you want in a legal proceeding, much less one which potentially involves documents related to national security. I get that Trump’s lawyers don’t want to perjure themselves, and that their only hope of saving their client is to get these documents fully removed from consideration in a criminal indictment, but they are gonna need more than bluster in a courtroom.
    I guess the Hail Mary was worth a try, but if you want to claim that documents are your personal property and the gov’t should leave you alone about them because X, you better be prepared to actually show X is true. I assume his lawyers have to know it’s not gonna work, but maybe they are hoping for more Canon treatment.

  4. Miles

    Be careful what you wish for, something, something.

    They tried a gambit and didn’t think it all the way through. There was no possibility that Judge Dearie could perform his function without this information, so unless they assume they had him in the bag (stupid, but possible), they did everything they could to create this untenable situation for themselves and now they find themselves exactly where any competent lawyer should have expected them to be.

    Well done, Team Trumpers.

  5. jay

    I’m not sure I follow. If he were my client, I would be working toward a plea deal. It seems likely at least something he had was not declassified. If my client insisted on trial, then I’d probably tell him to say nothing at least for now, realizing that his only real hope is to take the stand at trial and get a jury to absolve him based on whatever reasoning he gave them.

    but I tend to agree with emptywheel, this isn’t about legal strategy. His lawyers are simply trying to run out the clock until the GOP retakes the whitehouse and shuts this down.

    1. norahc

      In my wanderings across fly over country, I’m hearing another alternative being discussed. Some people are saying this is nothing more than an effort to keep Trump in a negative news cycle prior to elections. Apparently they believe that there is no way Trump packed the documents himself, and the lack of effort to find who really did shows (at least in their mind) that this is nothing more than a witch hunt.

      This whole thing may backfire in multiple and unexpected ways…for both sides.

  6. A Concerned Citizen

    It sounds like the Bad Orange Man, like the proverbial blind squirrel, has finally stumbled upon some competent legal representation. It is appropriate to request that Judge Dearie not compel a potential defendant to place a statement under oath that would likely later be relevant to any subsequent criminal proceeding. Would any competent criminal defense attorney advise his clients to sign affidavits prior to the trial? Only in the rarest of circumstances to establish an irrefutable fact.

    I think that there was a good argument to be made by plaintiff’s team that such a request would be more appropriate regarding specific documents subsequent to their review by the special master. If the special master finds that some documents seized appeared classified in nature, he could request that each party set forth their arguments as to each document. They couched their argument as being appropriate under W.R.Cr.P. 41 to compel the return of the property, but a stronger argument would have been that it would be premature to demand the position of the parties regarding specific documents prior to review by the special master and facing a preliminary finding regarding classification.

    Because Merrick Garland thinks that Judge Dearie is the bee’s knees, should we expect the Department of Justice to withdraw its appeal to the Circuit Court?

    1. SHG Post author

      It’s entirely reasonable not to want to take a position that could be ruinous in a subsequent criminal defense, but then, don’t make a motion that will certainly require you to do what you least want to do. They chose a path. Now they’re going to have to deal with the obvious ramifications of it.

      1. A Concerned Citizen

        I think that the motion to appoint a special master was the right call, even if it led to this particular conundrum. Otherwise, the former president would be entirely at the mercy of the DOJ as to what the definition of “classified” would be for purpose of what they present to the grand jury.

        The DOJ hasn’t exactly covered themselves in glory with their constant leaking (nuclear codes! secrets about a foreign country’s nuclear capabilities!), and I will reiterate that it would best for the republic if they simply took their one hundred documents, whatever they are, and did a victory lap. They could give the Bad Orange Man his paddle-ball back and whatever other detritus they took.

        1. Bryan Burroughs

          He’s going to be at the mercy of what the actual law says is a classified document. The DOJ won’t be making this shit up as they go, pal.

          You gotta work really hard to get bitch-slapped by the bartender here on a Tuesday Talk like you just did. I suggest you quit while you are behind.

  7. Bryan Burroughs

    It would seem that Dearie has weighed in: put up or shut up! According to CNN:
    “If the government gives me prima facia evidence that they are classified documents, and you don’t advance any claim of declassification, I’m left with a prima facia case of classified documents, and as far as I’m concerned, that’s the end of it,” Dearie said.

    Sounds about right to me. I don’t see how a rationally acting court could treat the issue any other way. You are more than welcome to preserve the details of a possible defense for another forum, but you can’t then rely upon the wholly unsupported vagaries of such a defense in this venue.

  8. Mark Dwyer

    My recollection is that it doesn’t (legally) matter to the potential charges whether the documents were classified. Am I remembering correctly? If so, I don’t know what this is all about — except delay.

    1. Bryan Burroughs

      For the possible charges, no it doesn’t matter. It’s a delaying tactic, yes. But the game is if they can get another Canon-level decision, maybe this fella rules that these documents are actually his property (spoiler: they aren’t), then they could remove the worst-case scenario of charges he would be facing. More likely, they were hoping to get into a protracted argument over it and still eventually lose the issue, but it seems Dearie isn’t willing to play ball.


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