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Tag: special master

Latest Hearing On Stolen Documents Didn't Go Well For Trump's Lawyer

This is my umpteenth report on the Trump stolen documents case. To continue following my peregrinations through the courts covering this nonsense, consider becoming a paid subscriber and help me find my way.

In addition to losing at the Supreme Court on Tuesday in his appeal to keep his tax records out of the hands of Congress, Trump had a bad time at the 11th Circuit Court of Appeals, too.

Three Republican-appointed judges – two put on the bench by Trump and one by George Bush – expressed barely concealed skepticism of arguments put forth by James Trusty, the attorney for Donald Trump, who faced off against the Department of Justice in its appeal seeking to cancel the special master appointed by another Trump judge, Aileen Cannon of Florida.

The case has been dragging its way through the courts since Trump petitioned Cannon to appoint a special master to review the thousands of documents seized by the FBI last August from Trump’s residence and office at his Mar-a-Lago resort/hotel/club in Palm Beach, Florida. This is the second time the DOJ has appealed to the 11th Circuit about the matter.

In its first appeal, the DOJ sought to have 103 folders of classified documents released from the review by the special master so they could be used as evidence in its criminal investigation of the former president. The 11th Circuit granted that appeal in September. Two of the judges who heard the case today signed the decision in September – Judges Andrew L. Brasher and Britt C. Grant – in ruling unanimously against Trump. They were joined on Tuesday by the chief justice of the 11th Circuit, William H. Pryor Jr., the former attorney general of Alabama.

Trump went to court today with an argument the DOJ called “novel and erroneous” in the brief filed last week. The Trump position on the documents he removed from the White House when he left office in January of 2021 and took with him to Mar-a-Lago was that because he was president at the time when the boxes of documents were put on a truck and driven to Florida, they were ipso facto his property.

As the DOJ pointed out in its brief last week and on Tuesday during oral arguments, that argument flies in the face of the Presidential Records Act, a federal law passed by Congress after Watergate, which mandates that all documents and materials produced or used by a president while in office are the property of the government, not the individual serving as president. Perhaps realizing the ”I took them, so they’re mine” argument wasn’t holding much water, Trump’s lawyers took another slant on the case. The appointment of the special master was necessary and should be maintained, they said, because the search warrant executed in August was a “general warrant” and thus illegal.

“You didn’t establish that it was a general warrant,” Pryor told Trusty bluntly.

Judge Pryor didn’t think much of Trump’s lawyer’s arguments, and neither did the other two Trump-appointed judges, who ruled in September that Trump had failed to establish that the government had shown “callous disregard” for his constitutional rights in seeking the warrant from a federal judge and searching his home and office. The failure by the former president to prove callous disregard was “reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here,” the 11th Circuit wrote in September.

Judge Pryor told Trump’s lawyer that he had to accept that not even Cannon had ruled that the government had shown callous disregard for Trump’s rights. “Your brief doesn’t even attempt to argue that it [callous disregard] was satisfied,” Pryor told Trusty.

Trump’s lawyers told the court that the search of Mar-a-Lago was illegal because the FBI had taken Trump’s golf shirts and a photo of Celine Dion along with the classified documents it seized in August. Pryor dismissed that argument with this: “The problem is, you know, the search warrant was for classified documents, and boxes, and other items that are intermingled with that. I don’t think it’s necessarily the fault of the government if someone has intermingled classified documents and all kinds of other personal property.”

At another point, Trump’s lawyer was cut off abruptly by Judge Grant when he called the search of Mar-a-Lago a “raid.” “Do you think a raid is the right term for the execution of a warrant?” Grant asked Trusty, who quickly apologized for using what he called “a loaded term.”

Trusty tried to argue that a search of a former president’s residence was a special case. Pryor wasn’t having that, either. “Other than the fact that this involves a former president, everything else about this … is indistinguishable,” Pryor told Trusty, referring to the search warrant. “We’ve got to be concerned about the precedent that we would create that would allow any target of offense of a federal criminal investigation to go into district court and to have a district court entertain this kind of petition…and interfere with the executive branch’s ongoing investigation,” Pryor said.

He then went even further. “If you can’t establish that it [the search] was unlawful,” Pryor said, “then what are we doing here?” Trusty replied that the former president had asked for the appointment of the special master hoping that by going through that complicated process, he could prove that the search was unlawful.

Pryor expressed amazement at the brazenness of the argument: “The end object of the search [through the records by the special master] is to establish it was an unlawful seizure?” Pryor asked Trusty. A CNN reporter who observed the arguments described the incredulity frequently expressed by the judges this way: “Pryor’s facial expressions throughout suggested exasperation with the Trump team’s arguments, as he repeatedly shook his head as Trusty attempted to answer his questions.”

Folks, it’s never a good sign when the chief judge in the court of appeals hearing your case is shaking his head in disbelief.

Stay tuned. We’ll be watching for the court’s ruling and will report on it here.

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.

Please consider subscribing to Lucian Truscott Newsletter, from which this column is reprinted with permission.

Trump Is His Own Special Master

Let’s see if we can sum up the situation surrounding the decision by a Federalist Society judge in Florida appointed by Donald Trump allowing a so-called special master to examine the documents taken by Donald Trump from the White House.

Trump does not own the documents. They were taken by him from the White House on or before January 20, 2021 when he left office. Trump admitted as much when he returned 15 boxes of documents and other materials to the National Archives in February of this year, and when he had his lawyer, Christina Bobb, hand over to the Department of Justice some 50 classified documents from the Mar a Lago storage room in June. So the documents he voluntarily returned, at least, cannot be assumed to be subject to either attorney-client privilege or executive privilege because Trump gave them back to the government, which owns them.

Then there are the documents that were seized pursuant to a legal search warrant issued by a different federal judge who examined a request from the DOJ that included a long section of evidence obtained from witnesses and other methods as to why there was probable cause that the documents were present at Mar a Lago. This assertion in the application for the search warrant that was borne out by the fact that the FBI found them where they said they would be.

The FBI application for the search warrant cited the fact that the documents had not been returned to the government was itself evidence of potential obstruction of justice. The seized documents, and the documents turned over previously, are evidence in a criminal investigation. Even if some of the documents end up being found somehow, for some reason, subject to executive privilege, there is no provision in the law or in the rules regarding executive privilege that would exempt those documents from being used as evidence that a crime was committed, such as obstruction of justice or violations of the Espionage Act.

There is no provision in the law for a president to shield himself from prosecution by asserting executive privilege or attorney-client privilege over evidence. In this case Trump’s removal of the documents from the White House, is itself an apparent violation of the Presidential Records Act. A good analogy would be the provision in the law, long upheld by the courts, that a client cannot assert attorney-client privilege over evidence that a crime was committed in the communications between the suspect and the attorney. Neither can the attorney assert protection of attorney-client privilege for the same reason.

In short, if there are communications that may prove that a crime has been committed, there are no provisions in the law to shield that evidence. For example, if a suspect asked his lawyer to call a compatriot and tell him to pick up the proceeds of a drug sale so that money could be used for any reason including paying the attorney, that communication would not be protected as a privileged communication between the attorney and the suspect.

The same would apply to any assertion of executive privilege that would seek to deny to the government evidence that a crime had been committed. In the Trump case, that evidence is the documents Trump removed from the White House. They are, at the very least, potential evidence of violating the Presidential Records act. The documents could be evidence that Trump sought to obstruct justice by hiding them from the government, which owns them, and refusing to turn them over. The classified documents could also be evidence of violations of the law regarding the improper storage, movement, and release of national defense information, or NDI, which is covered under U.S. Code 793 involving the improper gathering, storage, transmission, or loss of national defense information. It is not necessary for so-called NDI to be classified, only that the information involve the national security of the United States.

Judge Cannon, who Trump appointed in May of 2020 and who did not take office until several days after Trump had lost he election, also asserted in her order that Trump might suffer “reputational damage” due to some documents that might be subject to executive privilege if they were used as evidence in the FBI criminal investigation. The good judge ignores, of course, that any person under investigation by the FBI and the DOJ for committing a crime, and any person whose home is searched for evidence of crime pursuant to a legal search warrant, has his or her reputation damaged. So the judge appears to have put Trump in a class of exactly one as someone a federal judge has to protect from having his reputation harmed by the fact that he is under investigation by the DOJ. Her move to appoint a special master to “review” the documents Trump took from the White House, as well as to bar the DOJ even from interviewing witnesses about the documents while the special master is completing his or her review, is clearly an attempt to protect Trump from the DOJ’s investigation of his potential criminal behavior.

There is also the matter of whether Trump, as a former president, can assert executive privilege at all. Richard Nixon tried to use executive privilege in his assertion of ownership over the White House tapes, an assertion that was denied by the Supreme Court unanimously. Another court decision found that the power to assert executive privilege belongs to the sitting president, and in this case, President Biden has not asserted executive privilege over the documents Trump took to Mar a Lago.

And then there is the very odd portion of the judge’s order where she specifically allows the review of the Trump documents by the Director of National Intelligence (DNI) to continue. The DNI, along with the Central Intelligence Agency, National Security Agency, and Defense Intelligence Agency, are reviewing the documents to assess any risk to national security that may have resulted from Trump storing classified documents in insecure locations in Mar a Lago and having them moved around and potentially seen by persons who do not have the security clearances necessary even to be in the presence of the classified documents.

The judge has essentially ruled that one part of the executive branch, the part that deals with enforcing the law, cannot see the documents until they have been reviewed by the special master, but another part, which deals with matters of intelligence and national security, can see them.

Judge Cannon has let us know that while national security matters to her, the security of the man who appointed her, Donald Trump, matters even more. That is what she has done by allowing the appointment of a so-called special master to review the documents Trump illegally removed from the White House. She has protected Trump, at least for the time being, from the DOJ’s investigation and potential prosecution.

With the Federalist Society, the Republican Party, and Donald Trump, you get what you pay for, and Judge Aileen M. Cannon is clearly bought and paid for by all of the above, and as of today, they are getting their money’s worth.

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 read 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

#Endorse This: Colbert Roasts Trump's Pet Judge With Tuneful Parody​​

Late Show host Stephen Colbert came roaring back and immediately laid into the judge who ruled in favor of a “special master” for the Donald Trump classified documents case with another “fake news alerts” installment.

Colbert started the bit with a broadcast TV segment of the news, including the headline “Judge Aileen Cannon to Appoint ‘Special Master'” below mugshots of the Florida federal judge and her patron Trump, as well as images of what appeared to be pages from Cannon’s ruling. Then came a funny accordion riff of 80's hit Come On Eileen -- but with parody lyrics to play off the judge's first name.

“Oh screw you Aileen, he stole top secret things

"And then mixed theem, with Time maaaagaziiines.”


Watch the entire segment below:


Finding Special Master In Trump Documents Case Is Stiff Challenge

By Sarah N. Lynch, Jacqueline Thomsen and Karen Freifeld

WASHINGTON (Reuters) - A federal judge has given the Justice Department and Donald Trump's lawyers until Friday to come up with a list of potential candidates to serve as a special master to review records the FBI seized from the former president's Florida estate.

But finding people who have the necessary experience and security clearances to handle the highly classified documents -- and the willingness to enter the political brushfire surrounding the probe -- will be no small task, legal experts said.

"If we're talking about highly classified material, there's only a relatively small number of individuals who would satisfy the requirements of the job," said attorney Kenneth Feinberg, who served as a special master for the 9/11 Victims Compensation Fund.

"It would have to be somebody willing to take on the hurricane. It's not purely a security issue. It's become a political issue," he said.

One illustration of the challenge: the nonprofit law firm National Security Counselors last week provided the court with a list of four potential candidates with expertise on executive privilege. All four have since made public comments that either suggest they don't want the job or that could be used to argue against them by lawyers for the Justice Department or Trump.

U.S. District Judge Aileen Cannon on Monday ruled that a special master should review the records seized from Trump's Palm Beach home to weed out anything that should be kept from prosecutors, either due to attorney-client privilege or executive privilege - a legal doctrine that shields some White House communications from disclosure.

The Supreme Court last year side-stepped the question of how far a former president's privilege claims can go in rejecting Trump's bid to keep White House records from the January 6 select committee.

However, the National Archives, after conferring with the Justice Department, told Trump's lawyers earlier this year that he cannot assert privilege against the executive branch to shield the records from the FBI.

Special Master

A special master is an independent outside expert who is sometimes tapped to review records seized by the government in sensitive cases where some of the material might be privileged.

Whoever is picked will likely need to have a top-level security clearance because more than 100 of the 11,000-plus documents are marked as top secret, secret or confidential.

A special master has never before been called on to determine whether records are covered by executive privilege, particularly in the unique circumstance of a former president asserting the right over the prerogative of the current president, Joe Biden.

"Appointing a special master I think may be harder than people think," said John Bolton, Trump's former national security adviser who previously also served at the Justice Department. "How many people with TS/SCI clearance are out there? And how many of them are experts on executive privilege?"

Potential Candidates Opt Out

None of the four potential candidates identified by National Security Counselors in a court filing last week have openly embraced the idea.

One of them, Mark Rozell, the dean of the public policy school at George Mason University, has asked for his name to be removed from the list, telling Reuters: "Flattered that someone thinks I’m qualified, but I prefer analyzing from the outside of events."

A second, former Justice Department attorney Jonathan Shaub, has not said whether he would take the job, but criticized Cannon's order in an interview with Reuters on Monday, saying it was "filled with inaccuracies about the law" and that the judge seemed to be "bending over backwards to help Trump."

Northwestern University law professor Heidi Kitrosser, the third, told Reuters that she believes she is unlikely to be selected, after some conservative media outlets and Trump supporters on social media pointed to her prior political comments.

The fourth person, Mitchel Sollenberger of the University of Michigan-Dearborn, said he does not have a security clearance.

A Justice Department spokesman on Monday said the government is reviewing Cannon's order without commenting on next steps. Attorneys for Trump did not respond to requests for comment.

Most prior cases involving special masters related to practicing attorneys who had a duty to keep their clients' records confidential.

A special master was appointed, for instance, after the FBI searched the homes and offices of former Trump attorneys Rudy Giuliani and Michael Cohen.

Some legal experts said the best bet is to look for recently retired judges from Washington, D.C., or Florida who have handled national security cases and could easily get their clearance restored.

Robert Costello, an attorney for Giuliani, said that after the FBI seized items from his client's home and office, the government and the defense team were able to quickly agree on a special master candidate: retired judge Barbara Jones.

"They will try to whittle it down to one," he said, noting that they will look for someone who can be "neutral and fair."

If they can't agree, he said, the judge can pick someone herself.

"The judge would be wise to make sure that it's a consensus candidate," said Feinberg. "She may end up appointing somebody over the objection of one side or the other, but at least she's made an effort to determine and calibrate the degree of opposition."

(Reporting by Sarah N. Lynch and Jacqueline Thomsen in Washington and Karen Freifeld in New York; editing by Scott Malone and Mark Porter)

Trump's Hand-Picked Judge Orders Absurd 'Special Master' In Documents Case

It should have been possible to see what was coming, when Donald Trump’s team of highly unqualified attorneys managed to submit Trump’s complaint incorrectly, and the judge gave them a do over. Then the complaint came in missing everything necessary, and the judge sent instructions on exactly what she wanted to see. And now the Trump-appointed judge has broken with all legal precedent, and written wholly new law in the process, to give Donald Trump exactly what he wanted—a special master.

Judge Aileen Cannon didn’t stop with saying she intends to appoint a special master, she insists that the federal government provide a more detailed list of the documents taken, a list to be shared with Trump. Only she seems to have missed even more steps than Trump’s attorneys, like even sending the suit to the supposed “defendant,” or giving any reason why her could T can intervene in any way.

how any of this would work, and how anyone would appoint a special master to review documents classified at the highest possible level … seems not just impossible, but ridiculous. But then, this is entirely new legal ground … the kind that should only exist in the Twilight Zone.

Actual legal experts have some opinions about this ruling.



Reprinted with permission from Daily Kos.