Margot's Must Read On The Special Master Win
Last night I was in a rush to post about the general nature of Trump’s win on the Special Master—as you’ll recall, the 25 words or less version is that Judge Aileen Cannon rejected DoJ’s request that she stay her decision to appoint a Special Master. Having rejected DoJ’s motion, Cannon went ahead and appointed as Special Master a senior federal judge, Raymond Dearie. As we noted last night (via tweets by Jonathan Turley) the Reagan appointed Dearie is by way of being a victim of FBI criminality, in that he signed off on the 4th FISA on Carter Page (the 3rd renewal), which contained the false statements/altered document by former FBI lawyer Kevin Clinesmith—who is nevertheless currently a lawyer in good standing in DC, despite his felony conviction for lying to the FISA court. Given that background, Dearie may well be inclined to hold the DoJ/FBI feet to the fire.
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Two points. First, something I missed last night. Judge Cannon specifically brings up the matter of leaks to the media, and she does so in a way that strongly suggests that she’s well aware that it’s the government doing the leaking and that that shows bad faith. This comes in the section where Cannon is addressing DoJ’s claims that it will suffer irreperable harm because the Special Master could somehow result in disclosure of super secret information. Cannon’s response indicates that she clearly would be laughing out loud at this notion, but for the obvious bad faith exhibited by DoJ:
First, there has been no actual suggestion by the Government of any identifiable emergency or imminent disclosure of classified information arising from Plaintiff’s allegedly unlawful retention of the seized property. Instead, and unfortunately, the unwarranted disclosures that float in the background have been leaks to the media after the underlying seizure."
Secondly, this morning Margot Cleveland really goes to town on the instructions that Cannon gives to Dearie. I’d say this aspect of the ruling explains why Cleveland includes the word “Huge” in the title. The point is that the practical implications of the appointment of the Special Master could take on a life of their own. DoJ may come to regret the MAL Raid as the Special Master starts digging:
First, Cannon directed Dearie to “review all of the materials” seized …, something the DOJ desperately wanted to avoid, especially for the documents it segregated as marked classified.
There will be no possibility of holding back documents.
Second, Dearie must verify that the property listed in the “Detailed Property Inventory” “represents the full and accurate extent of the property seized.” …
As Margot points out, the added fact that Cannon specifically suggests that the Special Master obtain affidavits from the Raiders is important. To me, it’s another strong indication that she distrusts DoJ, based on what she already knows about the way the warrant was obtained and the Raid was conducted.
This next is also an important victory, because it implicitly rejects a key DoJ position. As we noted last night, Cannon stated that Trump’s status as former President is a key part of the equities involved in this situation:
Judge Cannon also directed the special master to review the documents for privilege, including for formal assertions of “executive privilege.” This represents another victory for Trump because the DOJ has been adamant that Trump has no right to assert “executive privilege.” ...
Cleveland argues persuasively that the biggest victory for Trump is that DoJ will be forced to divulge exactly what was seized—specifically. Supposedly classified docs will be made available for review, and copies of all other docs must be provided. This is where those affidavits could prove important going forward. No surprises. Cannon will decide on any areas of disagreement as to the status of the docs—which is where the rubber will hit the road. The Special Master will make the initial determination, but his recommendations won’t bind the judge. Trump’s lawyers will be able to present their position and will do so from the position of full knowledge of what was seized, rather than surmise.
Finally, but also importantly:
... The entirety of the review must be completed by November 30, 2022, according to Judge Cannon’s order.
While Dearie could complete his review before November 30, 2022, that hard deadline suggests the court is cognizant of the possibility the DOJ intends to use the raid of Trump’s home and future developments in their criminal investigation as an October surprise. Putting the deadline for the special master’s review of the documents after the midterm elections lessens the chance that the Biden administration can use its investigation of Trump to interfere in the elections.
I’m guessing that the judge may take a very dim view of further leaks, and may take action if further leaks occur.