I’ll just bet you couldn’t have seen this coming: In his first hearing about the 11,000 government documents Trump took with him to Mar a Lago when he left the White House in January of 2020, Judge Raymond Dearie, the special master appointed by Trump’s own special pet judge, Aileen Cannon, has expressed frustration and impatience with the way Trump’s lawyers are proceeding.
The special master is supposed to be reviewing the documents to determine whether any of them qualify for protection by attorney-client privilege or executive privilege. The telephone conference today was concerned with only a small batch of documents that had already been set aside by the DOJ’s “filter team,” a group of prosecutors and agents who had previously been separated from the main team of DOJ prosecutors and FBI investigators conducting the criminal investigation of Trump. They had been tasked with reviewing the documents before the special master was appointed. The group had determined that a set of the documents might be subject to attorney-client or executive privilege and collected them for further review.
The first issue raised by Dearie was a discrepancy about the number of documents under review. Trump’s lawyers had previously told Dearie that the 11,000 documents consisted of about 200,000 pages. Today it emerged that the actual page count was only 21,792. A lawyer for the DOJ explained that the larger number was provided by a company that had been hired to scan the documents into a database that could be shared with both Trump’s lawyers and DOJ attorneys.
Moving on, Dearie complained that a log of the documents over which Trump is seeking to claim either attorney-client or executive privilege that had been submitted by Trump’s lawyers had not provided enough information for the judge to determine the grounds for the privilege being claimed.
If Trump’s claim of privilege over the documents is granted, they cannot be used by the DOJ in its criminal investigation into Trump’s handling of both classified and unclassified documents and whether or not he had obstructed justice in his refusal to turn them over to the government. Dearie told Trump’s lawyers that they had not been specific enough in their claims of privilege. He singled out one document that Trump’s lawyers had claimed was Trump’s personal property and was also claimed to be subject to executive privilege. Executive privilege cannot be claimed to cover items that are not presidential records. A document cannot be personal property and a presidential document at the same time.
The New York Times last night reported that Dearie reacted to the Trump claim by saying, “Unless I’m wrong, and I’ve been wrong before, there’s certainly an incongruity there.”
Dearie was also skeptical about some of the documents Trump claimed were subject to attorney-client privilege. Apparently, Trump’s lawyers had made the claim without listing the names of attorneys who had been consulted with respect to the documents or had been involved in their creation. “Mr. Trump’s team had asserted privilege over other records even though a third party was involved, suggesting they were not confidential,” the Times reported. “Where third parties are involved in the document, I need some understanding why the presence of the third party doesn’t defeat the privilege,” Dearie told Trump’s lawyers, clearly indicating that you yield your claim to attorney-client privilege when you share a document with another person who is not one of your attorneys.
The Times quoted one of Trump’s lawyers saying that the Trump legal team will “certainly take you up on it,” referring to Dearie’s questions about the privilege claims.
The whole special master thing may become moot if the 11th Circuit agrees with the DOJ’s appeal that the appointment never should have been made by Cannon in the first place, and all of the government documents Trump removed from the White House should have been available to the DOJ investigation all along.
Until that happens, however, Dearie is saddled with Trump’s halting, stumbling legal maneuvers, most of which seem to be intended to slow down the DOJ investigation, given the way the hearing over the batch of documents under consideration today ground on and on as the judge attempted to get Trump’s lawyers to lay out their case for privilege in a more professional and forthcoming manner.
Meanwhile, over in Congress, the House January 6 Committee is said to be readying its subpoena for Trump to both give testimony to the committee and provide it with certain documents. Punchbowl News (yearly subscription: $300) reported this evening that the committee will not issue the subpoena “until Wednesday at the earliest. One of the issues being discussed internally is a response date for the subpoena… usually there’s one date for documents and another for testimony. The response date for both in this case will be after the November 8 elections. However, the exact dates haven’t been agreed upon yet.”
Just as we figured, the beat and the Trumpian bullshit go on.
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