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.