Former President Donald Trump has learned time and again that the best way to kill legal action is to first delay it. And while Trump’s “special master” gambit initially showed promise in that regard, the tactic may have actually backfired and put him on a fast-track collision course with the federal government he once led.
Two separate court decisions last week have empowered the FBI to move swiftly in its investigation against Trump for mishandling classified information.
“Who knows what’s still at Mar-a-Lago? Who knows where the rest of it is? It’s obvious that Trump can’t be trusted—and neither can his lawyers. But at least the bluff has been called on using the courts to delay this,” said Carl W. Tobias, a University of Richmond law school professor.
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Trump’s preemptive strike last month—a lawsuit against the feds—tried to block the FBI from reviewing the documents seized at his oceanfront Mar-a-Lago mansion. That legal fight has now been split in two. On one end, a court-appointed “special master” in Brooklyn is combing through some of the seized materials to figure out if any of them can be held back from the feds due to the former president’s “executive privilege.” On the other end, a Trump-friendly federal judge in South Florida has gone out of her way to stop the FBI from even touching the classified files, a decision that just reached a highly conservative appellate court.
But neither one is going well for Trump.
A very special master
His insistence on slowing down the investigation by forcefully inserting an independent referee has blown up in his face. Raymond Dearie, the semi-retired Brooklyn federal judge specifically brought in to second-guess the Justice Department, has actually used his special master role to speed up the review.
On Friday, Dearie set an Oct. 28 deadline to know what documents Trump actually wants to hold back from the DOJ on the head-scratching theory that a former president can cite “executive privilege” that somehow supersedes the current executive branch.
In doing so, Dearie is moving significantly faster than the instructions he received to wrap things up by the end of November from the Trump appointee down south who played along with the intended delay tactic, US District Judge Aileen M. Cannon.
Dearie is even bringing in reinforcements. In an order Thursday, Dearie said he’s tapping retired magistrate judge James Orenstein to help sort through the gargantuan mountain of 11,000 documents—and without hesitation ordered Trump to pay him $500 an hour to do it.
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Tobias called Dearie’s decision to recruit Orenstein “a master stroke.”
“That will expedite matters exponentially, and that’s all good. The whole point of this litigation is to delay,” Tobias said. “[Dearie] has a reputation as a no-nonsense, very professional, very experienced jurist… he has cut through the bullshit offered up by Trump’s lawyers and gotten to the point,” Tobias said.
The sped-up timeline means the DOJ will know sooner which non-classified documents it can access—and use as evidence that Trump kept and altered government records that don’t belong to him.
For example, previous court filings disclosed that investigators recovered documents showing that “certain pages of presidential records had been torn up,” a violation of 18 US Code § 2071 that bars anyone from ever again holding a political office in the United States. Those same documents could also support the other federal charge they’re considering against the former president, 18 US Code § 1519, because the feds “developed evidence that government records were likely concealed and removed from the [Mar-a-Lago] storage room and that efforts were likely taken to obstruct the government’s investigation.” That second criminal charge carries the threat of a 20-year prison sentence.
“Judge Cannon tried to throw a lifeline of delay, and it didn’t work… [Dearie] is the kind of judge who’s been around a long time. He’s not going to tolerate wasted time. And he’s not going to be played,” said George Washington University law school professor Stephen A. Saltzburg, who has twice served as a special master himself.
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Dearie is wasting no time and already set up a follow-up court hearing on Oct. 6 to ensure the review is moving along. The compressed timeline puts Trump in the position where any legal games—and obvious delay tactics—happen just as the dozens of Republicans he’s endorsed enter their final weeks of political campaigning before the general election.
appeal to reason
Meanwhile, the more threatening aspect of the FBI’s investigation is now free to proceed at full speed. Special agents can now once again access the classified files they seized, the evidence at the very heart of the most serious criminal charge Trump faces: violating the Espionage Act by keeping “Top Secret” documents lying around at his busy club and putting the security of the nation at risk. That law, US Code § 2071, comes with the threat of prison time and could also bar him from ever running for president again.
Last week, the 11th Circuit Court of Appeals took a close look at Cannon’s decision to halt the FBI and sided with the DOJ—despite the fact that two of the three judges on the panel were appointed by Trump himself.
The court even called out Trump for publicly claiming it was fine for him to have classified records because he’d already declassified them—maybe even in his head, as he mused to Fox News. The appellate panel noted that Trump’s lawyers have yet to make that argument before Dearie (perhaps, as some have pointed out, because lying to a judge would cost them their license to practice law).
“[Trump] suggests that he may have declassified these documents when he was president. But the record contains no evidence that any of these records were declassified. And before the special master, [Trump] resisted providing any evidence that he had declassified any of these documents,” the panel wrote.
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And they added this scathing line, toppling future arguments that Trump had any excuse.
“In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal. So even if we assumed that [Trump] did declassify some or all of the documents, that would not explain why he has a personal interest in them,” they wrote.
Saltzburg said Trump’s legal team, still high from the victory in front of Cannon, “completely miscalculated with the 11th Circuit.”
Legal scholars told The Daily Beast that last week’s court decisions had the effect of tightening the noose around Trump’s neck.
“It looks a lot different than it did last week thanks to Judge Dearie and thanks to the two Trump appointees on the 11th Circuit who cut through the garbage. I think they have some measure of self-respect. And they understand what’s going on here. Maybe they actually care about national defense and national security. What a concept,” Tobias said.
“These decisions will make it go much faster,” said Noah Bookbinder, president of the watchdog group Citizens for Responsibility and Ethics in Washington, which has spent considerable time and effort seeking to hold Trump accountable for years.
However, Bookbinder warned that the DOJ isn’t likely to actually give the American public what so many people crave.
“I cannot imagine that, even if they were ready, that the Justice Department would bring charges in this case before the election,” he said, citing the agency’s vague, 60-day principle to not intentionally interfere in elections. “There’s not a reason under the Justice Department’s policy—Donald Trump’s not a candidate for anything in November 2022—but construing the policy broadly, an indictment could affect the election. And I can’t imagine they would go there.”
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