"You can't have your cake and eat it."
That is what Judge Raymond Dearie told Trump’s lawyers yesterday when they objected to his demand that they submit a sworn affidavit attesting to any actions Trump had taken to declassify the 100 folders of top-secret documents the government is seeking permission to use in its criminal investigation of Trump. Dearie, acting as special master, pressed Trump’s lawyers repeatedly on whether Trump had actually declassified the documents Trump removed from the White House and took with him to Mar a Lago.
The meeting, held in Dearie’s court in Brooklyn, was supposed to address the schedule he proposed for reviewing the 11,000 documents and other materials Trump removed from the White House when he left office on Jan. 20, 2021.
Instead, the session devolved into a lengthy back-and-forth between the judge and Trump’s attorneys over Trump’s repeated claims that he had declassified the secret documents seized by the FBI during its August search of his hotel/club/residence in Palm Beach, Florida.
Part of the subject of the meeting was Dearie’s plan for both sides to examine all the documents and submit their proposed labels for each one – personal, privileged, or unprivileged – by October 7. Trump’s lawyers objected to that schedule and asked for more time, possibly until the end of the month, before the documents have to be categorized.
The primary issue, raised by the government in its motion to Judge Cannon over a week ago and in its appeal of the judge’s order last Friday, is the status of the 100 folders with various classification markings that hold an unknown number of classified documents. The Department of Justice has asked that Judge Aileen Cannon’s order restricting their use by the government in its criminal investigation be lifted. Trump’s lawyers claimed to Cannon last week, and yesterday in their answer to the DOJ appeal, that the documents should not necessarily be considered classified, and neither court should accept the government’s word that they are classified.
In yesterday's filing to the appeals court, Trump’s lawyers wrote, “The government again presupposes that the documents it claims are classified are, in fact, classified and their segregation is inviolable. However, the government has not yet proven this critical fact. The president has broad authority governing classification of, and access to, classified documents.”
During the initial stages of the meeting, Dearie appeared to accept that the documents are classified, referring to the markings on them showing various levels of classification, including Secret and Top Secret/Sensitive Compartmented Information. He told Trump’s lawyers that in effect, Trump was trying to have things both ways: He is refusing to certify that he declassified the documents while asking Cannon and the Circuit Court as well as Dearie, the new special master, not to accept the DOJ’s contention that all of the documents remain classified.
Trump’s lawyers contended that having to certify that the documents were declassified would cause them to “disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.” Responding to that, Dearie proclaimed, “I can’t allow litigation strategy to dictate the outcome of my recommendations to Judge Cannon. What am I looking for? As far as I am concerned, that’s the end of it,” Dearie said. “What business is it of the court?” The “it” Dearie referred to is the contention of Trump’s lawyers that the classification status of the documents should remain in question.
Responding to an assertion by one of Trump’s lawyers that Dearie was “going a little beyond what Judge Cannon contemplated,” the judge replied testily, “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 Judge Cannon].” Trump’s lawyers said the issue was not about “gamesmanship,” and told the judge, “We shouldn’t have to be in a position to have to disclose declarations and witness statements.”
It was at that point that Judge Dearie told the Trump legal team, “You can’t have your cake and eat it.” He then announced that henceforth he will operate on the assumption that the documents are classified according to their markings and proceed accordingly. Dearie’s decision raised the possibility that he will move quickly to review the classified documents and that he may recommend to Cannon that she lift her order restricting their use by the government. After all, he seemed to indicate, after both the DOJ and the Trump legal team have reviewed the documents and labeled them as private, privileged or not privileged, everyone will have seen the documents, classified and otherwise, so the issue of restricting the use of their content will be moot.
Dearie’s meeting lasted only 40 minutes, and based on his attitude about his duties as a special master and the way he dismissed the contentions of Trump’s lawyers, it may turn out to have been the longest 40 minutes of the former president’s life.
Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.
Reprinted with permission from Lucian Truscott Newsletter
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