Trump Wants Two Weeks to Review 64 Documents; DOJ Expects Review of 500 Documents a Day

Yesterday, Judge Raymond Dearie submitted his draft work order to the two sides in the Trump Special Master review and then they responded (DOJ; Trump). Dearie didn’t release his draft publicly but Trump’s wails about it hint at some of its contents.

As a number of people have noted, Trump objects that Dearie has set a deadline for Trump’s initial designation of materials by October 7, thereby allowing the debate over the seized materials to end by November 30. But Trump wants to ignore that there’s going to be an extended debate about this and clearly would like to extend this past Judge Aileen Cannon’s November 30 deadline.

The District Court’s order indicates a presumptive end-date of November 30, 2022. The proposed calendar, circulated today to the parties only, compresses the entirety of the inspection and labeling process to be completed by October 7, 2022.

To be fair to Trump, the government’s plan seems to envision this process taking an extra week, until October 15 or so.

Trump wails even more shrilly about the fact that Dearie first asked why any Rule 41(g) litigation would happen in this Special Master proceeding rather than the docket where the warrant was issued and then asked for a list of documents Trump had declassified.

[W]e are concerned that it contemplates resolving issues that were not raised by Judge Cannon in her order, her order denying the stay, or oral argument. Specifically, Judge Cannon was aware of the likelihood of eventual Rule 41(g) litigation and established a process by which the Special Master would evaluate any such claims before reporting and recommending to the Court. While the Plaintiff is, of course, willing to brief anything ordered by the Court under the auspices of the Special Master, we are concerned that the Draft Plan directs the Plaintiff to address whether Rule 41(g) litigation should be litigated under Case No. 9:22-MJ-08332-BER. The Plaintiff respectfully sees no indication the District Court planned to carve out related litigation for a merits determination by the issuing magistrate for the warrant in question. Most importantly, none of the District Court’s Orders have ever indicated that this was even a consideration.

Similarly, the Draft Plan requires that the Plaintiff disclose specific information regarding declassification to the Court and to the Government. We respectfully submit that the time and place for affidavits or declarations would be in connection with a Rule 41 motion that specifically alleges declassification as a component of its argument for return of property. Otherwise, the Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.

Trump’s response to this is telling. He refuses to reveal which documents he declassified because (he claims — remember none of his lawyers are NatSec lawyers) it would be a defense to the merits of any subsequent indictment.

That ignores, of course, the obstruction statute, which asked for documents marked classified, not classified documents. But it’s also a confession that Trump’s lawyers don’t understand how classification works. If these documents were declassified, there would need to be a record.

This effort is significantly an attempt, pre-indictment, to make an argument about the classification status of the documents. If Cannon were to treat Trump’s claims of declassification seriously, for example (and everything we’ve seen from here says she would happily do so to help Trump out of his legal jam), it would make it far harder to sustain a claim that the documents were National Defense Information. But this stunt may soon meet diminishing returns, unless and until Dearie (who knows more about national security than any of Trump’s lawyers and Cannon) is fired.

As I noted in this post, in her order appointing Dearie, Cannon edited the boilerplate language in Special Master orders to give herself the authority to remove Dearie, unrelated to whether his process gets bogged down.

More interesting still: It says Trump won’t submit any declarations until he’s doing so in the process of claiming he owns these formerly classified documents. Cannon, of course, should have demanded that he at least assert that he had declassified some of these documents to sustain her usurpation of Executive Branch authorities, if not a log of which ones. If and when Cannon fires Dearie for overstepping her neat plan to stave off a Trump indictment, this point of dispute will become central. But by then, Cannon’s own nonsensical rulings may also be exposed.

There’s an even more telling dispute between the government and Trump, though. The government’s filing basically enters into this process with so much good faith that it squeaks: not contesting the conflicts of his lawyers, not disclosing what other parts of Cannon’s order they may still appeal, not even suggesting they’ll continue to appeal the order on classified documents if the 11th Circuit does not issue a stay. On that point, they say simply, they’ll return to it.

1 The government applied to the Eleventh Circuit for a stay last week and Plaintiff’s response is due tomorrow at noon, before the Master’s preliminary conference. If the Eleventh Circuit stays Judge Cannon’s order with respect to documents with classification markings, then the Special Master will not review the documents with classification markings. If the Eleventh Circuit does not stay the review of the documents with classification markings, the government will propose a way forward.

The government is approaching this review as if Dearie will quickly resolve all these issues and they can move on with their investigation. It’s worth noting, to the extent that the NSD lawyers involved have been involved in FISA proceedings, they may well understand how Dearie likes to work in consultative discussions not dissimilar from this one.

Much of the rest of the government filing basically addresses practicalities: How to share these documents. It proposes to get Relativity (a legal discovery software tool) to scan and upload everything within days. Trump will have to pay for the license, because he has to pay for all of this.

The government proposes that Trump’s team review 500 documents a day, which will result in a 22-day review time period after the documents are scanned, which would complete them all by around October 15, with a few days to start the scanning process.

But it’s clear Trump wants to do none of this work (indeed, he likely wants to delay until they’ve seen all the documents at once). That’s evident because he’s proposing a two week deadline for the 64 potentially privileged documents that (all sides note) the government provided Trump on September 16.

Plaintiff to create privilege log (with basis) for Exh. A documents: TBD (two weeks?)

This is insane! Trump wants two weeks to delay reviewing 64 documents he had already had three days to review by yesterday. According to both the government and Dearie proposals, Trump should have finished with that document review on Saturday.

I think there’s a non-zero chance Dearie gets fired, and I assume Trump just hopes that happens before the government has won a stay of Cannon’s order prohibiting them from accessing the classified records and before he has admitted that most if not all of these potentially privileged documents are not.

Axios reported that Trump believed Dearie would be suspicious of the FBI based on his experience with the Carter Page order, something I had already contemplated in this thread. Even if he were, though, he’d be suspicious within the context of the law. Moreover, as I noted, there was still plenty in the application to sustain suspicion in Page, including that he seemed to know in advance of the October surprise that WikiLeaks delivered on October 7 and he destroyed a phone as soon as the investigation into him became clear.

And unless and until he gets fired, Dearie seems to plan to make these legal issues public — something that never works out well for Trump.

55 replies
    • massappeal says:

      Thanks for your comment. For what it’s worth, I don’t think the issue is “until people wake up in the US”. Trump’s always been unpopular. He’s never won the popular vote in an election. After an extraordinarily (due to his own actions) brief “honeymoon” period, his approval ratings quickly fell below 50% and remained there for the rest of his presidency. An additional segment of those who’d stayed with him throughout those four years split from him after the Jan. 6 insurrection. The month of public hearings by the Jan. 6 House Committee earlier this summer further dented his support.

      To the extent public opinion influences the actions of the federal government, the public has been “awake” and calling for action against Trump for years. What’s needed, politically speaking, is for the government (legislative, executive, judicial) to catch up (which, to their credit, they appear to be doing).

      • TXphysicist says:

        lol no no, the issue of “awakeness” is a timezone issue, here!

        pcpablo is talking on timescales of minutes to hours, not a cultural asleepedness (though such a thing does for sure exist).

        If that was a troll, I loved it, sorry not sorry, hahah

      • Yorkville Kangaroo says:

        “… his approval ratings quickly fell below 50%…”

        His approval rating NEVER broke 50%. At least not in any reputable surveys.

  1. JonW says:

    I’m curious about the comment in the post about “so much good faith it squeaks”. Is this a continuation of DOJ playing their hand poorly, or does it help move things along faster?

    • emptywheel says:

      I think, though am not certain, that it keeps their options open. If they continue this “if it squeaks” stance and Dearie (for example) confirms their determinations on privilege, then it’ll begin to rebut Cannon’s lies about mistakes being made.

      Plus it gives them a few days to figure out what tone they want to adopt for the eventual appeal. Now they’ve seen Dearie’s first play and Trump’s, which will likely influence their next decisions.

      • Spencer Dawkins says:

        Dr. Wheeler, I had interpreted “so much good faith it squeaks” through the lens of comments about DoJ writing for Judge Cannon assuming that the REAL audience was an appeals court (and, because Trump is Trump, the Supremes) – so that the DoJ response to Dearie would also be written with a secondary audience in mind, making sure that they don’t give Cannon or any appeals court a weapon to justify siding with Trump because Trump was “being treated so unfairly”.

        Was that also in the back of your mind, when you wrote this post?

    • Critter7 says:

      IANAL, but I would think it also indicates DOJ is looking at the long game, expecting this case will eventually get beyond Cannon’s jurisdiction; so to whatever court later becomes involved, DOJ’s good faith would be evident and in contrast to Team Trump.

    • Ginevra diBenci says:

      I was hearing bmaz in my head insisting that Garland has misplayed every hand he’s been dealt, and wondering if squeaky cleanliness fits that pattern.

  2. DavidO says:

    I suspect… Dearie didn’t like getting bullshit from the FBI on Carter Page. The Trumplings mistook that for, “He’s on our side,” because that’s how they think. So they handed him bullshit, and I think they’re finding out he’s primarily opposed to getting bullshit.


    • BigHank53 says:

      It may also have been a mistake to pick someone who has spent most of his career in NYC, and is well aware of Trump’s long history as a grifter, fraud, and conman.

  3. Jimmy Anderson says:

    “Otherwise, the Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment….”

    Is this Trump filing a little like a Special Master response version of ‘pleading the 5th’ ?

    • Ginevra diBenci says:

      That strikes me as one more tautological mole-hole. “We want a special master to review the documents *not* as a Rule 41 process because our plaintiff is not under indictment, but for all these other reasons” goes to “We don’t want this special master to undermine/expose our potential Rule 41 response to a future indictment.”

      They got what they asked (with Cannon’s help) for. Now they want to change the game. And Corcoran The Witness is still signing their submissions.

  4. Bears74 says:

    “This is insane! Trump wants two weeks to delay reviewing 64 documents he had already had three days to review by yesterday.”

    Cut Trump’s lawyers some slack, they have to wait until their Shutterfly order is delivered!

  5. waban1966 says:

    Does this posture give DOJ a better set-up in CA11 any possible outcome? Four scenarios (maybe other see more?).

    First, Judge Dearie orders Trump to say now what and when he declassified. If Trump complies (under seal), as MTW points out, Trump has a huge problem. Maybe even more if there really is a document that is protected by the Atomic secrets statute, where there is no presidential discretion over secrecy, IIRC. But those problems are only at the end of a very long prosecution, and Trump has already bought more than a month of delay and could get a couple more if SM tells the they have to disclose. Trump might comply under seal with super-vague facts, so as not to put Judge Cannon (their advocate) in a very tough spot right away. Counting on other later rulings (or contesting such an SM ruling) to keep delaying for a long time. I wonder if this is most likely. And Trump gets another argument for any appeal of a conviction (forced early disclosure of a defense). Factor opposed to this — Trump personally wanting to fight everything.

    Second, SM rules for the government on the timing of declassification arguments, and Judge Cannon removes or overrules Judge Dearie. DOJ then has better merits arguments on appeal. This could create some room to say that Judge Cannon was arbitrary and capricious, if Trump claims that is the standard of review. This could help an appellate court to make any overrule of Judge Cannon fact-specific. And Judge Dearie may be offended at his first ruling being overturned (if not fired). Moreover, other District Judges in any later actual prosecution could be offended.

    Third, Judge Dearie rules for DOJ and Trump goes to Judge Cannon for an overrule. She delays making a ruling. That gives DOJ a better argument on the stay, as the block of their investigation becomes much longer, very concretely.

    Fourth, out of caution for an immediate removal, Judge Dearie rules for Trump on the declassification argument timing, at least delaying it significantly within the SM review period. Again, the stay argument becomes better for DOJ. As earlofhuntington pointed out to me yesterday, judges are very jealous of their authority to rule. So this seems least likely because Judge Dearie likely believes (rightly) that he is supposed to be the decider given de facto deference of supervising District Judges (even though Judge Cannon’s order goes further that is typical).

    For any appellate specialists, at some point is there a DOJ argument for mandamus?

    More generally, it also occurs to me that J Alito is a big advocate for magistrate judge power. Could that be a sleeper vote for DOJ and referral of many decisions to the MJ?

  6. Peterr says:

    From Trump’s filing:

    [W]e are concerned that it contemplates resolving issues that were not raised by Judge Cannon in her order, her order denying the stay, or oral argument.

    Hmmmm . . .

    Trump had no problem when Cannon appointed a Special Master based on facts that were not presented and sworn to, and issues that were not claimed by Trump in court, but THIS bothers him now?

    • jhinx says:

      I imagine Dearie’s draft work order and the parties’ responses will play out like this:

      Cannon: While this Court itself has issued orders that the Plaintiff never contemplated, putting the Government at a disadvantage in their criminal investigation and security assessments, in order to remain equitable, the Court finds on all points related to the Special Master’s work order in favor of the Plaintiff. In addition, Special Master Dearie is henceforth terminated.

    • Ginevra diBenci says:

      Trump’s money grab should never be underestimated. Especially now that he’s signalling explicitly to the QAnon faithful, his genius for milking an adversarial situation, with pleas of victimhood and shared persecution (“They’re doing it to YOU!”), remains unmatched.

  7. Peterr says:

    From the conclusion of Trump’s filing, with emphasis added:

    In short, the Plaintiff has every interest in expeditiously moving forward on the document review, characterizations, and any ensuing litigation. With the Government’s help, in terms of access to the materials and clearance for Plaintiff’s attorneys, we believe the parties can meet the expected deadline of November 30.

    Trump’s team has realized that they may have a problem here.

    Of course, it’s a problem of Trump’s own making, as he could have hired counsel who (a) are not witnesses to the crime of obstruction, and (b) have already been through some level of security screening.

    Instead, Trump has gone with lawyers from the firm of Political Ambulance Chasers R Us.

    • Tech Support says:

      You get the sense that Trump’s team (and Cannon) are arguing that the govt. can just wave a magic wand and give clearance to whoever they want (or who the court orders them to) by fiat.

      I tend to think that if and when it reaches that point, the govt. is simply going to refuse to disclose materials to unqualified parties.

      At which point… what? Does Cannon attempt to hold the govt. in contempt?

  8. Legonaut says:

    Dear Special Master (whoever ye may be),

    By accepting this appointment and the duties thereby, you have two options:

    1) Join the corruption chorus, singing MAGA (Make Attorneys Get Attorneys) hymns and giving the Plaintiff everything He wants (especially delays) without asking obvious, uncomfortable questions. You will be exalted in the halls of Trumphalla, and He won’t forget you, you betchy.
    2) Or, don’t. Your underbussed carcass will be nailed to the gates as a message for all others of your ilk, who will run screaming into the night at your fate. (We still get the delays we wanted all along; resistance is futile!)

    You have one Scaramucci to decide.

    Judge Aileen “Akasha” Cannon

  9. RobertS says:

    This whole thing gets crazier by the day. Trumps lawyers get a judge that ignores the facts and the law to rule in his favor, then they get the Special Master that is supposed to tangle this up for years, and now that they have gotten what their special master, its like “What, you meant we’re supposed to have the special master review documents?”

    From my admittedly non-lawyer perspective, it sure looks like they know he’s screwed if this ever gets in front of a jury and their only hope is to drag it out long enough for some corrupt jurist or politician to save him.

  10. ssatty says:

    For what it’s worth, there is a valid distinction in measuring review based upon the number of pages vs. the number of documents. A doc review platform like Relativity unitizes based upon each “document” which could have huge numbers of pages. And if a “document” is actually a compilation of lots of things from within a file folder, it may need to be re-unitized using a script run by the discovery vendor. Presumably what constitutes a “document” is dictated by how the DOJ is treating each record and this is unlikely to be something that would be contested by Trump’s attorneys because it probably would play out in his advantage if something is partially privileged due to being part of a compilation. But, Judge Cannon’s order doesn’t really offer guidance on that.

    In a typical electronic document review, especially one where there are only one or two issues that a reviewer is considering, the review pace can be fairly quick because reviewers can flip through the docs quickly and then tag them. Scanned documents that may have handwriting and lack recognized text take longer to review.

    But even so — unless these documents are thousands of pages long, 64 documents typically can be reviewed in a matter of a few days.

    • GWPDA says:

      I’m going to bet that the term ‘document’ in this instance is what the National Archives says it is. Each of the ‘documents’ is going to have some kind of NARA category marking on it in addition to any security or classification marking. When the documents were initially dispensed to Trump or the President’s Office in the White House they carried a cataloguing notation. Every NARA document I have ever handled, every Imperial or Commonwealth document I have ever handled has some kind, and generally multiple, cataloguing marks on them and those marks are ineradicable. That is why in the United States security doctrine demands that classification marks be ‘struck thru’ and initialed, not somehow removed. All these documents are set up to be tracked. Their very electronic creation is tracked. A major point that Trump and his inexpert advisors and lawyers do not consider is that their possession of a paper record is the smallest part of the record’s existence. They can take papers out of a file and flush them down a toilet or burn them in a fireplace, but the trace of the record can and will continue, ending at Trump’s delicate hands.

      • rip says:

        There have been a few prior discussions here about whether the versions of the documents stolen/removed by the FPOTUS to MaL (and possibly other places) were the only copies of the documents. I agree that there are likely other machine-readable and probably other paper copies residing with the issuing agencies or other sources.

        Will the classification marking exist on all of the other copies? I don’t know. In my limited exposure the machine-readable versions were stored within very tightly controlled containers using access control, security levels, and encryption. Obviously someone like Snowden could bypass many of these controls.

    • emptywheel says:

      Thanks. That’s really helpful.

      The 64 docs at issue (and they call them document sets, which may be another Relativity term) make up 500 pages or less.

  11. Paulka says:

    Correct me if I’m wrong, but if even 1 document marked classified makes it through this process (SM review, etc. DoJ winning it’s appeal), the Trump’s goose is cooked on the Obstruction charge (I know, I know way oversimplification), but the obstruction charge is that he didn’t return every document marked classified-not documents NOT declassified, but simply marked classified. So, if one document makes it through the process, obstruction largely proven.

    • quickbread says:

      Are the SM documents in question even needed for an Obstruction charge? There’s the signed statement from June falsely stating that no more documents were in Trump’s possession. There’s video footage that likely shows people going in and out of the storage room after that, possibly with papers in hand. And there are dozens of empty classified folders that housed documents, now unaccounted for. Even if the documents themselves are tied up with the SM, the folders are not, right? All NARA would need to do is reconcile the folders with the voluntarily returned classified documents and note the discrepancy.

      • Paulka says:

        Cannon’s stay prevents the DoJ from using the “classified” documents in any criminal investigation (including I would assume indictments). So, point being if even one of the documents is released for use by the DoJ for that purpose his goose is cooked in terms of obstruction or would be if he were anyone but Trump.

  12. Taxesmycredulity says:

    “there’s a non-zero chance Dearie gets fired”:

    In your post of 9/16 on the Special Master, I commented that it was likely Dearie was a decoy, a sitting duck. He was hired to be fired, and Cannon’s ruling confirmed she could and would do it for any reason she deemed necessary. Once he’s gone, Huck, TFG’s real choice for SM, steps in to do his bidding.

    Already, as in the draft filing you posted above, we see TFG’s tattle-tailing attempts to the judge that Dearie is doing it wrong, not following her rules. Now that Dearie has asked to know which docs were declassified, it’s likely the axe will fall sooner…

    With regard to Cannon’s rulings thus far: we’re all familiar with TFG’s use of stall tactics to delay proceedings, but he also is a master of bizarre court filings that really gum up the works (google his “bizarre court filings”). I think it possible this tactic works as well for bizarre court rulings. Cannon has successfully inserted confusion into the proceedings, and I can’t help but wonder it she has some guidance in that regard.

    • Spencer Dawkins says:

      “Once he’s gone, Huck, TFG’s real choice for SM, steps in to do his bidding.”

      We might end up there, but I’m not sure why that’s a foregone conclusion. Huck was one of four proposed SMs, and the proposed SM with the least relevant background.

      • Taxesmycredulity says:

        The only relevant background TFG was looking for was someone who would work on his behalf. He nominated Dearie, a well-respected jurist, only so that DOJ would acquiesce to his choice rather than lengthen the process by pushing for one of their own 2 choices. Dearie is a place holder for the political person TFG really wants, Paul Huck, who is not only politically right wing (he has been called “the Godfather of the Federalist Society in Miami), his wife just happens to be a justice on the 11th Circuit Court. While this may preclude her from sitting the case herself, there is a striking familiarity of actors here.

        As has been covered thoroughly in many EW posts and comments over the past week, Cannon’s bizarre rulings have benefitted TFG and now that she has positioned herself to fire the SM without cause, Dearie will have served his dual purpose of decoy and place holder and will disappear. The odds that Cannon would then select one of DOJ’s choices defies my belief. Thus, Huck is the new SM.

      • atriana smith says:

        I think the plan was/is to fire Dearie, then rinse repeat with the DOJ’s recs, until finally Cannon appoints TFG’s other choice.

        This lets them add delays and more delays before they get to who they actually want to be SM.

        • bmaz says:

          I’m sorry, do you have one shred of evidence for that statement? Am pretty sure you do not, and please do not do that here. We do not have time for that garbage.

  13. L. Eslinger says:

    Any bets on how soon will Judge Cannon claim that Judge Dearie has exceeded his authority and shut down his stint as Special Master?

    Guess we’ll know more after today’s hearing in Brooklyn.

  14. Spencer Dawkins says:

    “I think there’s a non-zero chance Dearie gets fired”

    I know nothing about Dearie, but I DO find myself wondering how long a federal judge with senior status will be willing to go along with this charade, before he quits with a scathing public statement. He knows what passes for “normal” when a Special Master is appointed, and he clearly sees things that are not normal in his own case (just based on his initial orders to the plaintiff).

  15. Frank Anon says:

    Do you think its possible that the attorneys for Trump, or even Trump himself, have no idea exactly which documents were seized, and are looking to see what they are? Trump could conceivably have moved documents around multiple locations throughout the years out of office, and has proven himself sloppy enough to not have kept track of what and where documents were. The Trump team seems to be eager to see documents with time to do something about them before moving to a next phase.

    • rip says:

      I can just imagine him insisting on maintaining a spreadsheet of which documents, what classification level, author, when spirited away, estimated value on the market, if sold – how many $$$, etc. It could even be in some cloud-based sheet in the cloud right now.

      More likely someone who is handling his affairs has their own little black book of assets and distributions. Wouldn’t suggest any names from overseas or even in the US.

    • timbo says:

      Well, certainly they can’t know which documents were seized because any given document might have gone missing prior to DOJ arriving and seizing what it did find.

      • Yorkville Kangaroo says:

        Personally, I don’t believe The Donald or his minions, especially since leaving 1600, have kept a cogent record of anything in the boxes. He notoriously dislikes leaving a paper trail and wouldn’t know a spreadsheet from a goose.

        The best The Donald will be able to do would be to say, “Now, where’s that dick pic of Macron and where are my Time Magazine covers?”

        The DoJ’s insistence that The Donald tells them what he wants that he believes belongs to him is a solid strategy since if he can’t enunciate it he can’t have it and, secondarily and more importantly, if he gives them an actual document that’s not allowed to be in his possession his spreadsheet is cooked.

    • Ginevra diBenci says:

      Raven Eye, your name is apt: This article by Gerstein and Cheney provides a concise yet illuminating window into the proceedings this afternoon. Thank you for spying it so quickly, and sharing it even quicklier!

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