Tuesday, 4 Oct 2022

Special master in Mar-a-Lago case appears skeptical of Trump 'declassification' claims

The special master appointed to review documents seized by federal agents who searched former President Donald Trump's Florida estate appeared doubtful Tuesday about Trump's contention that he had declassified the various top secret and other highly sensitive documents found there.

The special master, Senior U.S. District Judge Raymond J. Dearie, had previously asked Trump's attorneys for more information about which of the over 100 sensitive documents federal agents found at his Mar-a-Lago estate might have been declassified. Trump's attorneys had told the judge in a letter Monday night they didn't want to disclose that information yet because it could force them to prematurely "disclose a defense to the merits of any subsequent indictment."

During a hearing in a Brooklyn federal court, Dearie noted the current case is a civil dispute, not a criminal one, but that he was taking the government's concerns about national security seriously.

"Let's not belittle the fact that we are dealing with at least potentially legitimately classified information. The government has a very strong obligation, as do all of us, to see to it that that information doesn't get in the wrong hands," Dearie said. While Trump's filing claimed neither side had provided a showing that the documents are classified, Dearie said the government had presented "prima facie evidence" that the documents are, because they bear classification markings.

"As far as I'm concerned, that's the end of it," Dearie said, unless Trump's team has some evidence to the contrary.

Trump has claimed on social media that he declassified all the records he had in his possession, but his lawyers have yet to formally make that argument in any sworn court filings in the case.

Trump attorney James Trusty maintained that "we should not be in a position to have to disclose declarations" and witness statements on the classification issue. Dearie suggested their not doing so could be problematic for their current case.

"My view is you can’t have your cake and eat it," Dearie said.

Justice Department lawyer Julie Edelstein noted that some of the documents that were recovered "are so sensitive that even members of the team that is investigating possible offenses here have not yet been provided the clearances to see these documents." She noted that while Trusty has a top-secret clearance, even that "would not be sufficient to see a number of the documents at issue in this case."

Trusty called Edelstein's argument "kind of astounding." "It's kind of an amazing juncture to be dismissive of even one attorney having access to the documents that form the justification for their raid," he said.

The judge told Trump's lawyer, "It is a matter of need to know. And if you need to know, you will know.” He also suggested he would try to avoid reviewing some of the most sensitive documents in the case – and would keep Trump's lawyers from seeing them too.

"I don't want to see the material — it's presumably sensitive material," he said, adding if he can make his recommendations to the judge who asked him for his recommendations "without exposing myself or to you to that material, I will do it. On the other hand, if I can't, we have to take another alternative."

Dearie said he would issue a scheduling order in the case later Tuesday, and noted that "there are 11,000 documents" at issue in the case and "we have a short period of time" to review them for privilege issues.

Trusty urged Dearie not to move too quickly. He said Trump's team is “starting from scratch" and would benefit from having "the time to look at all the documents."

Aileen Cannon, a Trump-nominated federal judge in Florida, granted the former president's request to appoint a special master to review the evidence earlier this month, and ordered DOJ to halt the criminal investigation into the recovered documents while that review is pending. Cannon said a damage assessment into any mishandling of the documents could proceed, but the Justice Department said the criminal investigation is a necessary part of the assessment and appealed her order.

In a court filing Tuesday, lawyers for Trump argued the 11th Circuit Court of Appeals should reject the government's request for a stay of Cannon's ruling, and called the probe "both unprecedented and misguided" and "a document storage dispute that has spiraled out of control."

The Trump bid was backed in a filing to the appeals court by a coalition of 11 Republican attorneys general, who suggested the "ransacking" of Trump's home was politically motivated and argued Cannon's order should be left as is because of the Biden administration's "gamesmanship." The bulk of those involved had previously backed a lawsuit challenging the 2020 election results that was dismissed by the U.S. Supreme Court.

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