Cause the Harm, and Then Say Nothing: Trump Has Had Aileen Cannon’s Proof of His Injury for a Week and Said Nothing

As I have repeatedly laid out, to intervene (improperly, the 11th Circuit has ruled) in the search of Trump’s home, Aileen Cannon created an injury, and then intervened to fix it.

When DOJ asked for permission on August 30 to share with Trump the potentially privileged documents separated out by the filter team, she prohibited them from doing so. She wanted to deal with this all “holistically.” Then, in all her subsequent rulings in this case, she pointed to the fact that Trump didn’t have possession or insight into those privileged documents as one of the only harms suffered by the seizure of the documents at his home.

[T]wenty days ago, DOJ asked for permission to share the items they had determined to be potentially privileged with Trump’s lawyers so they could begin to resolve those issues. Twenty days!!

But Cannon prohibited DOJ from doing so, because she wanted to deal with this all “holistically.”

MR. HAWK: We would like to seek permission to provide copies — the proposal that we offered, Your Honor, provide copies to counsel of the 64 sets of the materials that are Bates stamped so they have the opportunity to start reviewing.

THE COURT: I’m sorry, say that again, please.

MR. HAWK: The privilege review team would have provided Bates stamped copies of the 64 sets of documents to Plaintiff’s counsel. We would like to seek permission from Your Honor to be able to provide those now, not at this exact moment but to move forward to providing those so counsel has the opportunity to review them and understand and have the time to review and do their own analysis of those documents to come to their own conclusions. And if the filter process without a special master were allowed to proceed, we would engage with counsel and have conversations, determine if we can reach agreements; to the extent we couldn’t reach agreements, we would bring those before the Court, whether Your Honor or Judge Reinhart. But simply now, I’m seeking permission just to provide those documents to Plaintiff’s counsel.

THE COURT: All right. I’m going to reserve ruling on that request. I prefer to consider it holistically in the assessment of whether a special master is indeed appropriate for those privileged reviews.

In her order denying DOJ’s request for a stay of her injunction (and several times before that), Cannon pointed to precisely these reserved potentially privileged items to find a harm to Trump that she needed to address.

To further expand the point, and as more fully explained in the September 5 Order, the Government seized a high volume of materials from Plaintiff’s residence on August 8, 2022 [ECF No. 64 p. 4]; some of those materials undisputedly constitute personal property and/or privileged materials [ECF No. 64 p. 13]; the record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials [ECF No. 64 p. 14]; and there are documented instances giving rise to concerns about the Government’s ability to properly categorize and screen materials [ECF No. 64 p. 15]. Furthermore, although the Government emphasizes what it perceives to be Plaintiff’s insufficiently particularized showing on various document-specific assertions [ECF No. 69 p. 11; ECF No. 88 pp. 3–7], it remains the case that Plaintiff has not had a meaningful ability to concretize his position with respect to the seized materials given (1) the ex parte nature of the approved filter protocol, (2) the relatively generalized nature of the Government’s “Detailed Property Inventory” [ECF No. 39-1], and (3) Plaintiff’s unsuccessful efforts, pre-suit, to gather more information from the Government about the content of the seized materials [ECF No. 1 pp. 3, 8–9 (describing Plaintiff’s rejected requests to obtain a list of exactly what was taken and from where, to inspect the seized property, and to obtain information regarding potentially privileged documents)] [my emphasis]

I’ve written about how Cannon outright invented the claim that the medical and tax records were personal property. Both inventories thus far provided to Trump comply with the law (and, importantly, Custodian of Records Christina Bobb signed the first with no complaint about the accuracy or level of detail, arguably waiving any complaint).

But the single solitary reason why the filter protocol remained unavailable to Trump’s team on September 15, when Cannon wrote this order, is because she prohibited DOJ from sharing it with Trump over two weeks earlier.

Cannon, personally, created the harm, then used that harm to justify her intervention to address it.

On September 16, the day after her order, DOJ repaired that alleged injury. As they explained in their filing before Raymond Dearie, they provided this material to Trump the day after Judge Cannon’s order.

With respect to the Filter Materials, and consistent with the Appointment Order, on September 16, 2022, the Privilege Review Team provided Bates-stamped copies of the Filter Materials, as well as a list of the materials with short descriptions and Bates ranges, to Plaintiff’s Counsel.

Trump has in hand the basis of Cannon’s claim DOJ accessed materials improperly. Trump has in hand the materials pertaining to medical, tax, and accounting matters that formed the basis of Cannon’s claim DOJ had seized personal material. Trump has in hand materials that would reflect DOJ’s filter protocol.

Nevertheless, Trump has said nothing about what’s in those materials.

By the time Trump submitted his proposed topics to Dearie on September 19, Trump had had those documents for at least 48 hours. Nevertheless, he asked for two more weeks to make any privilege determinations over them — until after they had first seen the classified documents.

Plaintiff to create privilege log (with basis) for Exh. A documents

By the time Trump submitted his response to the 11th Circuit, Trump had had at least three days to review that material. Nevertheless, in his response, he still claimed to be uncertain over whether those really were attorney-client privileged.

The material seized from President Trump’s home includes not only “personal effects without evidentiary value” but also approximately five hundred pages of material that is likely subject to attorney-client privilege, as well as medical documents, and tax and accounting information. [my emphasis]

Trump has now had those documents — 64 sets of documents, amounting to 520 pages — for almost a week.

Importantly, since Tuesday, a proposed protective order has been before Judge Cannon, but she has taken no action. Which is to say, for almost a week, Trump has had those potentially privileged documents in hand, without any restrictions from Cannon on whether Trump could speak of them publicly.

Relatedly, Cannon has still not acted on DOJ’s September 8 request that she unseal the filter team’s status report, from which she drew her claim that some of these potentially privileged documents pertained to Trump’s personal medical, tax, and accounting issues, rather than (as I suggested they might pertain to) discussions with government lawyers about legal action pertaining to things like his COVID diagnosis, his challenge to various Mazars subpoenas, and matters pertaining to the Old Post Office building. Cannon has not let the rest of us see out of what discussion she manufactured that harm.

Trump’s lawyers have had access to the filter status report for over three weeks. Trump’s team has had those potentially privileged materials for a week.

And neither Trump nor his lawyers has said anything about the grave harm done by the seizure of those documents.

Trump has had the ability for a week to tell us all about the harm on which Cannon hung her intervention. He even had that material — with no protective order! — when he wailed about his victimhood with Sean Hannity. And he has been silent about the core imagined harm that Cannon used to intervene.

Go to emptywheel resource page on Trump Espionage Investigation.

109 replies
        • nedu says:

          Huh? Color me slow, but I just compared today’s document (DE 104) against what I saw it modifying (DE 91)(*), and I did not comprehend that it struck “the requirement that Mr. Dearie report back in periodically.”

          Which paragraph did that?

          I saw para 5(b)(i)(bb) stricken. And I saw para 6 stricken.

          But I did NOT see para 10 stricken from DE 91.

          ((*) Of course, DE 104 also noted the stay of DE 64.)

        • TimB says:

          Thanks nedu. Perhaps I wrote too fast. I was looking at paragraph 6:
          “The Special Master and the parties shall prioritize, as a matter of timing, the documents marked as classified, and the Special Master shall submit interim reports and recommendations as appropriate. Upon receipt and resolution of any interim reports and recommendations, the Court will consider prompt adjustments to the Court’s orders as necessary. ”
          So a more precise version of my remark would have been that it strikes the requirement that Mr. Dearie report back regularly for purposes of the Court adjusting its order. That seems to me a serious strike-out.

        • nedu says:

          Oh. Rather, that should be thank you. I think I read too fast.

          I had done my comparison before I came over here and saw your comment.

      • Beth H says:

        Did Judge Cannon strike the parts of her order that egregiously prevented DOJ from using seized materials in criminal investigation?

        • nedu says:

          In responding to your question, I’m mentally striking your characterization “egregiously” as unhelpful surplusage here.(*)

          In today’s DE 104, Judge Cannon did not in precise words “strike” any part of her order in DE 64. She noted that the 11th Circuit had partially stayed her order “to the extent it enjoins… and requires…”

          However, she otherwise left intact the paragraph marked “2” on pp.23-4 of DE 64, with respect to all materials seized which are not describable as “the approximately one-hundred documents bearing classification markings”.

          ((*) Your characterization may be warranted, but it’s not helpful to an objectively-observed answer to your fair question.)

        • RJames says:

          I’ll admit my ignorance at how to find these documents. Would someone be so kind as to briefly describe the process? I tried a couple of simple searches on the site to no avail.

        • greenbird says:

          very helpful and clear.
          i recently was reminded that RECAP has no appellate function for documents as pdfs, but one can find a docket listing PACER documents, which is fine … except it seems the docket updates are not current.
          i used nedu’s ‘advanced’ method, just in case, but already had same result:

          any appeal docs provided by reporters as pdfs are, i guess, via their PACER accounts.
          the Court Listener docket is helpful, though not current SFAICT.

        • civil says:

          FWIW, I had an email exchange with someone at Court Listener recently, and he said “unfortunately, we don’t update our circuit dockets the way we do our district court ones. It’s on our list to get going” but beyond their capacity right now.

        • nedu says:

          There’s an advanced search page at–

          I’ve generally found that the quickest way to use that somewhat wonky search is–

          “Select Jurisdictions” — in this case, clear all, then go to the “Federal District” tab and select “S.D. Florida”, then “Apply”.


          “Docket Number” — in this case, you can grab “9:22-cv-81294” from my comment.


          Result that I just got was: “1 Case — 198 Docket Entries”. YMMV.

        • RJames says:

          “You give a poor man a fish and you feed him for a day. You teach him to fish and you give him an occupation that will feed him for a lifetime.” (Chinese proverb.)

        • TimB says:

          nedu, another very interesting remark from you but this one is harder to follow for me at least. If there are some ambiguities introduced by the Order Following Partial Stay (104) in what domain will they play out? In the appeal, in the special master process? Any enlightenment much appreciated.

        • nedu says:

          Sorry I didn’t get back to this earlier (off on personal errand).

          What I was thinking when I wrote that particular comment was– if I just write something like “DE 104” (as I had when I asked you my question), a lot of folks may not have the context to make any sense out of that abbreviated term. It’s really important to share context for effective communication. And environmental context needs to be repeated and re-established from time to time.

          So that’s what I was thinking. Going to your question about ambiguities raised by DE 104…

          In general, I believe that parties may request clarification from the district judge regarding her order. IIRC, I’ve seen this done by letter on the docket. The worst that I’ve ever seen happen from that is the judge clams up and tersely writes something like, “The terms of the order stand as written.” Period. Signature.

          (Conceivably, a party may read an ambiguity in a way that the judge thinks contemptuous, but then there’s some kind of show cause… with or without fireworks.)

          If the special master has questions, well, then there’s para 10, isn’t there.

          My speculation is that’d we’d probably see something in the district court’s docket before anything outside DE 64 played out in the 11th Circuit. But I have been known to be wrong before… So maybe ask someone else here.

    • emptywheel says:

      Yup. Noted in last post.

      It makes the appeal less of slam dunk. It may be an attempt to sustain her role until such time as she can claim some kind of 4A violation of Trump’s rights.

      • earlofhuntingdon says:

        Will be interesting to see how Cannon, in a civil matter, gets round that Reinhart should hear challenges to the issuance and execution of the search warrant. Not that snow, sleet, law, or process will keep her from making her appointed rounds.

      • Robot17 says:

        Can’t imagine a normal Supremes even taking it up but who knows with this one, yes?

        Is there any chance of an “In plain sight” seizure of additional evidence related to other crimes NYS/Tax returns for exaample?

      • P J Evans says:

        Figured people would want a link that didn’t go through Twitter or elseweb.
        I can’t help wondering if she really understands the message that the 11th was sending her.

        • earlofhuntingdon says:

          As EW describes her, Cannon is “smartly corrupt.” That would suggest she understands the 11th Cir.’s position full well, doesn’t agree with it, and has not stopped looking for ways around it to help Trump.

        • L. Eslinger says:

          A conjecture without basis in any hard evidence is that Judge Cannon has consulted with unnamed advisors before and throughout her association with this case.

          It seems unlikely that, after engineering her nomination and installation, the Federalist Society would simply say “Okay, you’re on the bench, but now you’re on your own, kiddo!”

          A career in big companies (and some small operations, too) has only inflamed my natural cynicism. Put me in the timeout box if I’m being over the top here.

        • FiestyBlueBird says:

          Bmaz doesn’t take kindly to conjecture. Until now, I’ve not done that, and after this, it will not become habit. One and done.

          But…knowing what we’ve already observed of Trump, I don’t think it is unreasonable to conjecture that Trump himself may have contacted her. He has no limits. He has shown that.

          But this is one we’d almost certainly never become aware of if it did happen.

          I’ll behave after this. My apologies to bmaz. You’re a good guy. A good teacher. As is Marcy.

        • Yorkville Kangaroo says:

          I’ll do it for bmaz.

          I know that the Donald is certfiably off the charts but in what universe does he pick up a phone and call a judge hearing his own case?

          Seriously. You guys need to get off the Interwebs and find rational thought. At least you’re in the right place here for a start.

    • Arteberry says:

      Meanwhile, back at the ranch, the special master’s work will continue, without worry about the classified records. Dearie’s work will probably be complete before the 11th Cir. resolves DOJ’s full appeal of Cannon’s order appointing a special master. And at that point I’m not sure DOJ cares much. The main things not covered by yesterday’s grant of the stay are the need for a special master at all—again, an issue that will be moot—and, more importantly, whether there is legal viability in any Trump claim of executive privilege over any particular document. I think Dearie is going to reject EP in summary fashion for all the subject records because it really is a pure question of law, not fact. But if Cannon overrides Dearie then DOJ must press forward with the full appeal.

      Another interesting thing to watch for will be the attorney-client privilege claims. Now, it may be that any AC communications that have been filtered are really of no case-building value to DOJ. On the other hand, some of those communications might be pretty juicy and, if they look like some furtherance of Trump’s criminal conduct, very much worth litigating under the crime-fraud exception. We likely will have little visibility into the AC questions, at least until the end of Dearie’s work…maybe not then, if Cannon keeps this matter sealed.

      • Ewan says:

        On the positive side, this Special Master is being paid by Trump, together with other costs, such as the vendor that they will choose to digitalize the documents etc. The DOJ has already seen all the documents that were to be seen, outside the potentially A/C privileged ones fenced off during the search, so barring extraordinary documents there, they already know what is there, and cannot unsee it. Since they now have all the classified documents from the search, the rest is a merely distraction rather than a roadblock…and it is costing Trump money the longer it takes. Or am I missing something?

      • BirdGardener says:

        Speaking of the special master’s work, he’s asked for Magistrate Judge James Orenstein help with the process @ $500/hr, paid by Trump, fees which the article noted “must be paid in full and on time or Trump could face court sanctions.”

        “In 2016, Orenstein issued a controversial ruling rejecting prosecutors’ arguments that a two-century-old federal law gave the government the right to command Apple to assist in unlocking an iPhone used by an alleged drug dealer. The judge’s pro-privacy stance in that matter may have led the secretive Foreign Intelligence Surveillance Court to appoint him to a list of approved friends of the court who provide their perspective on surveillance requests.”

      • njbill says:

        Even if any of the documents are covered by EP, which seems questionable at best, the government still should be able to use them in any criminal prosecution of Trump under U.S. v. Nixon in which the court said:

        “We conclude that, when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

        418 U.S. 683, 713 (1974).

        Now there isn’t a pending criminal trial as to Trump, but it would pervert the holding in the case to distinguish the Trump matter simply because charges haven’t been filed. Fundamentally, EP documents (even if they are such) should be able to be used in a criminal prosecution.

  1. Badger Robert says:

    Ms. Wheeler is staying on top of things. Now that the FBI and DofJ have the classified documents, there is almost no benefit of the Sp Mstr process in terms of creating delay.
    I think the alleged A/C material can be reviewed in a matter of days. I doubt Judge Dearie is going to review the 11,000 non classified documents. He can respond to claims of Executive Privilege in a summary manner.
    The former President has no catalogue of the documents and has no cognition of particular documents. I don’t anticipate the court appointed expert doing what the claimant declined to do when the claimant had the documents. Why would Judge Dearie incur the expense?

    • earlofhuntingdon says:

      I think your comment misreads the position this case is now in. Dearie has probably already reviewed the potentially A/C privileged material.

      He will review those 11,000 documents, as quickly as their contents permit and within the timeline Cannon gave him. That will be faster than Trump wants. What he does then will depend on what he finds, including any patterns in it.

      He is likely to recommend that a SM is not the appropriate person to decide matters of EP, because that’s a matter for the sitting president. Plus, Trump’s normal recourse to delay publication of his presidential records was to have put a hold on specific records, which the PRA allows him to do for up to twelve years. Trump would have had to do that while he was still president. I suspect he failed to do that, because he hates the restrictions of law and process, his ego would have told him those were all still his, and he was obsessed with staying in office, despite his electoral loss.

      Any delay, however legally unfruitful, is helpful to Trump. It’s his fundamental and sometimes only legal strategy.

      • DaveV says:

        Actually to me is seems that now there are 2 parallel actions taking place – 1.) Investigating the crime and 2.) haven already completing all of the 41(g) discovery so as to have Trump on record, before an indictment even takes place. And Trump is paying for the expedited review. Probably saves time for all the delays that would occur post indictment.

      • Badger Robert says:

        There won’t be very much delay due to the Sp Mstr review, per Dearie’s Case Management Order.
        Thanks for expanding on my post. I don’t like to post anything too long. I just want to show interest in the blog.

        • BirdGardener says:

          [Removing content but leaving comment as placeholder so that commenter’s reply will remain visible. /~Rayne]

        • BirdGardener says:

          Don’t know if anyone will see this, but I deleted my post above with over a minute left on the timer. This is the second time I’ve attempted to delete a pending post, and the second time it posted anyway, a considerable time later (after refreshing the page more than once to be sure it’s gone.)

          Anyone know why deletions don’t stick? thanks in advance!

          [The clock on your computer, the network clock, and the clock on the server aren’t completely in sync. There may be enough difference between them that in spite of appearing to have a minute left to edit, the comment may already have closed for editing on the emptywheel hosting server. /~Rayne]

        • matt fischer says:

          From my experience, it’s a longstanding bug. If you’re not happy with your comment after it’s been posted I suggest modifying — rather than deleting — it.

  2. paul lukasiak says:

    excellent observations!

    IMHO, the DoJ should notify Dearie that they will be providing Team Trump with none of the “Presidential Records” until there is a ruling by Cannon on the protective order request (and that should she fail to issue the order, an appeal of that ruling).

    And if Team Trump objects, the DoJ should just say that without the protective order, that the DoJ has to do a review to determine if (like with Hillary’s emails) there is information in the documents that should now be classified, and that Biden’s people will have to review each document to determine if THIS administration wants to assert Executive Privilege over any of the documents recovered

    • Fran of the North says:

      One of my hobbies is hunting for freshwater monsters with lures and line. Very infrequently you get lucky and not only do you see a tail fin above the surface, but a bow wave at the front.

      It certainly send the heart rate skyrocketing!

  3. earlofhuntingdon says:

    Even “personal items” can be properly seized and kept pursuant to a valid search warrant. They could be catalogued and returned – or kept, if their presence provided necessary context for the crime being investigated.

    Had Trump, for example, kept his shaving gear and the daily cartoon he reads on the toilet in the same drawer as TS/SCI information, that would suggest that he knew he had it, he read it, he improperly stored it and kept it despite repeated government requests for its return, and that he lied about keeping it. In which case, the government should be allowed to retain it. The same would be true had he kept personal tax filing information in the same drawer, next to his Trump Tower Shaving Lotion ($220.00, in a genuine gold foil-wrapped bottle).

    • Robot17 says:

      For “the” crime or “a” crime? For instance, the warrant has a specific purpose set out and approved by the Magistrate but if evidence of a separate and unrelated crime were included among the seized materials (say crushed Ritalin from a bottle prescribed to someone else) they couldn’t very well return that. In this instance (seriously now) the FBI I’m sure knows every jot and tittle of what’s in all of the seized items and for some reason I doubt seriously evidence of other crimes (if any) is excluded as they didn’t have the foresight to separate out the obvious security stuff. Maybe I’m getting greedy.

  4. Joe Stewart says:

    Regarding Judge Cannon’s striking of paragraphs in her order, I’m told that once the order was appealed, she lost jurisdiction to substantially change her order. She doesn’t strike me as being stupid so I’ve concluded that her original order was prepared by someone else, she signed it, and then the subsequent order was also written by somebody else, which she signed, and the purpose of all this is simply delay. How’s that for a conspiracy theory?

    • nedu says:

      Just adding a detail (while reserving any comment on the substance of your related assertion):

      If you look at the district court’s docket entry (DE) 76, which is the “Acknowledgment of Receipt of NOA from USCA re 74…”, on p.3, you find a copy of the defendant (USA)’s notice of appeal, in which it is clear that the order being appealed is DE 64.

      Looking at today’s DE 104, on its face, I see modifications to the order in DE 91, but I don’t see modifications of the order in DE 64.

      (Again, I’m reserving all comment on the substance of your related assertion. This is just an observation of detail.)

    • earlofhuntingdon says:

      It doesn’t matter whether Cannon or any judge personally prepared a draft order. When she signed it, it became hers.

      Even assuming the process you mentioned was true, Cannon would have resumed control sufficiently to modify her order, so as to comply with the appeals court’s decision.

  5. Scott Rose says:

    One of the outstanding questions of the Trump era regarding psychology is why certain persons, to appearances respectable, risk their reputations, for no evident good reason, to aid and abet a transparent flimflam man.

    That is even more curious for Cannon, because, as a judge, she is insulated from the kinds of political pressures that may be causing somebody like Congressman Turner to embarrass himself in public for Trump.

    If it’s true that there’s a certain wiliness in Cannon’s first two Trump-related decisions, it’s equally true that her demonstrated wiliness suggests she had the intelligence sufficient to anticipating the reputational harm this abuse of discretion would cause her.

    I think that for reasons presently unknown to us, in dealing with this “hybrid motion” Cannon’s emotional brain overruled her rational brain.

    • OldTulsaDude says:

      I admit to no special knowledge, only rank speculation, but speculation based on living in a bright red religious state and seeing the results of a new poll that said 61% of Republicans are in favor of declaring the U.S. a Christian nation, although they also admit that act unconstitutional.

      When you are on a mission from Gawd, niceties like law and order take a back seat to eternity.

        • Eastern Ash says:

          In a Boston Globe column in early July 2003, James Carroll addressed this very fear, though shifting the terror context, in anticipating with extraordinary prescience the blank check moral transgressions of George Bush’s “war against evil”:

          What the president may not know is that the worst manifestations of evil have been the blowback of efforts to be rid of it. If one can refer to the personification of evil, Satan’s great trick consists in turning the fierce energy of such purification back upon itself. Across the distance of history, the most noble ambition has invariably led to the most ignoble deeds. This is because the certitude of nobility overrides the moral qualm that adheres to less transcendent enterprises. The record of this deadly paradox is written in the full range of literature, from Sophocles to Fyodor Dostoyevski to Ursula K. LeGuin, each of whom raises the perennial question: What is permitted to be done in the name of ”ridding the world of evil”?

        • earlofhuntingon says:

          Something Carroll would know about. Former Catholic priest James Carroll wrote an award winning history, Constantine’s Sword, about how the Catholic Church became the successor to Rome’s empire, and the violence inherent in its definitional conflict with Judaism.

          He wrote two on how nuclear weapons became the central focus of US military, government, and life. The first used the lens of his father’s work as the first head of the DIA: American Requiem and House of War.

  6. earlofhuntingdon says:

    Cannon is young and apparently very ambitious. She thinks she’s at the start of a long and powerful career. But I don’t think she cares about what the wider judiciary or the US Senate, for example, thinks of her. She cares about what the closed loop of her patronage network thinks of her, which is a radical departure, but seems here to stay.

    Her network appears to be composed of radical right Republicans and their wealthy patrons; the FedSoc and its principal backers, with an endowment newly enlarged by $1.6 billion; and her specific patrons. The rest of us are just visiting.

    • Paulka says:

      Apropos of nothing, or something, this reminds me of how our country was saved after the 2020 election by a few decent, law-abiding, patriotic republicans who refused to swallow the Big Lie. We are witnessing the efforts of the fringe republicans to rectify that.

      Hopefully, the judiciary has far more patriotic republicans who refuse to give up on the rule of law.

  7. Ewan says:

    On the docket, Judge Dearie has appointed retired Judge Orenstein to work on the SM, at $500 per hour. So even though Judge Dearie will work for free, it will still cost Team Trump to have a Special Master.

      • earlofhuntingdon says:

        That rate seems appropriate for a retired federal judge, who could be a partner in many big law firms. If he were the latter, the rate would likely be much higher. You could find staff from a general legal staffing agency for a fraction of that hourly rate, but you really don’t want just anybody looking at and characterizing these documents.

        Dearie’s choice is testament to Dearie taking this work seriously and wanting to get it done as quickly as possible. That’s generally not good for Donald.

    • skua says:

      If in DJT’s shoes I’d be unsettled by Dearie casting his SM work as nothing outside his work as a judge and him not wanting any of my money, as clearly safeguarding my interests is very special and of utmost importance, and it’s all about money and an honest man would want extra money, so what is Dearie about? Is he trying to shake me down? For how much?

    • DaveV says:

      So Trump cannot come back later and say anything different. This is true for all the privileges listed that court thought of that Trump could/has publicly asserted and might be an issue later in later proceedings.

      • Spencer Dawkins says:

        Note well that I’m out of my league here, but I have to admire Trump’s thoroughness in publicly claiming so many mutually exclusive self-justifications simultaneously, allowing Judge Dearie to anticipate many of the objections Trump might raise in court(*) in his orders.

        (*) Yes, Trump could raise additional objections that he’s never told Hannity on camera, but if we’re already at “maybe the FBI was looking for Hillary’s emails”, Trump may have reached the point of diminishing returns.

    • jhinx says:

      Trump: We don’t know exactly which documents were planted, because we never saw them.

      Dearie: Then you’re asserting something with no evidence.

      Trump: Yes! Wait- I mean no! Maybe, and that’s final!

      • timbo says:

        This is actually an interesting ambiguity in how the rights of folks being investigated in the US work when planted evidence is alleged. And, yep, IANAL, but my understanding is that Cannon’s intervening here at this juncture was waaay out of bounds based on Federal court precedent with regard to civil suit standing.

  8. paul lukasiak says:

    Here is a link to the document Ewan referenced above

    Its Dearie’s “Case Management Plan”, and it gives the DoJ another chance to ask for an emergency stay pending appeal, because Dearie is ordering that Trump is being allowed to assert executive privilege, and requiring the DoJ to respond as if Trump has any basis to do so.

    But I think the most important part is that Dearie is saying that the review for Executive Privilege should go forward regardless of any “objections filed with the Court” (“To the extend that the parties file objections with the Court as to this Case Management Plan, the deadlines set forth above shall remain in effect while such objections are pending”).Footnote page 7

    Considering the fact that the Appeals Court pretty much just ruled that Cannon abused her discretion in doing anything other than rejecting Trump’s suit out of hand, the DoJ should be insisting that, at the very least, the question of whether Trump has any executive privilege claims at all under the law should first be resolved before taxpayers are forced to pay to respond to erroneous claims of privilege by Trump.

    • paul lukasiak says:

      It may be a good read, but its a bad plan.

      Before any executive privilege claim can be asserted, ownership of the documents should be established. Trump can ONLY claim privilege over documents he admits don’t belong to him, because personal documents cannot be privileged.

      Dearie, is, in fact, trying to allow Trump to ‘have his cake and eat it to” but allowing Trump to simultaneously assert both personal ownership and Executive Privilege. (note the language on page 3… “For any document that Plantiff designates as privileged AND/or personal…”) [emphasis on “and” added]

      • DryHeat says:

        Just above the “privileged and/or personal” language you quote, Dearie lists the privileges he wants identified. They include attorney-client communications, attorney work product, and two flavors of executive privilege. (sub. para. a-d).

        I think the reference to a document being personal AND privileged relates to the possibility of one of the attorney-type privileges.

        • earlofhuntingdon says:

          Essentially, yes.

          Dearie’s instructions apply to each document Trump identifies as privileged “and/or” personal, meaning Trump needs to give a reason for each document/claim.

        • paul lukasiak says:

          I’m hoping that is what Dearie INTENDED, but its not what he wrote. He doesn’t restrict the the “privileged and personal” documents to only the obvious atty/client ones.

          And, it should be noted, that Cannon specifically included “personal and privileged documents” as one of her four “mutually exclusive categories” in her order appointing Dearie as Special Master: (Dearie, btw, has six categories, not the four specified by Cannon — and as noted above by you, Dearie’s categories are NOT mutually exclusive when it comes to atty/client documents).

          aa. Personal items and documents not claimed to be privileged;
          bb. Personal documents claimed to be privileged;
          cc. Presidential Records not claimed to be privileged; and
          dd. Presidential Records claimed to be privileged.

          and I personally have little doubt that Cannon herself would see “personal and subject to Executive Privilege claims” as something that would be possible. (its also important to note here that Dearie’s decisions are merely recommendations, and Cannon retained her power to completely ignore what Dearie said (” the dispute shall go to the
          Special Master for a report and recommendation and, if either party objects
          to the report and recommendation, to the Court for DE NOVO REVIEW and
          decision”) [emphasis added]

      • earlofhuntingdon says:

        I disagree. Dearie is telling Trump to put up or shut up, cutting through both his fog and Cannon’s. He is doing that by requiring Trump to make his claims with respect to each unclassified document – or lose the right to do so.

        To meet Dearie’s schedule, Trump would have to review some 11,000 documents by October 14, about 525/day. That’s a generous schedule by government standards, but almost certainly more work than Trump or his lawyers are prepared to do, and possibly more disciplined work than Trump has done in his life. That’s not letting Trump eat his cake and have it.

        Trump has to identify with respect to each document whether he thinks it’s personal or a presidential record. Obfuscating the distinction is a fundamental part of Trump’s legal strategy.

        Trump has to claim whether he thinks any document is subject to A/C or work product privilege. The latter applies to records an attorney creates specifically in contemplation of litigation for Trump. There will be precious few such documents. But the process eliminates the fog on this issue Trump has spread.

        Lastly, Trump has to identify whether he claims any document is subject to EP – and whether that would prohibit disclosure within or outside the executive branch. Trump will need a legal argument for each claim, arguments he might not have formulated yet. (That doesn’t necessarily mean Trump has to argue whether he or Biden gets to make that call.) That, too, cuts through Trump’s fog.

        Dearie is trying to cut through Trump’s shit in a matter of weeks. It’s possible no one has ever succeeded in doing that before, but as an old New Yorker, Dearie knows exactly what he’s dealing with. He’s also doing what he should do: narrow the range of disagreement over facts and the law, in preparation for final resolution, in the first instance, by Cannon.

        • njbill says:

          I agree. While arguably he could decide the global EP privileges first, I think the approach spelled out in his order is the better way to go, and is in line with how reviews of this nature (well A/C, not EP since those are rare if not unprecedented) proceed. Make each party take a specific position on each document. Then deal with any disputes.

          As I read the order, it preserves all EP-related arguments for the government which I presume they will assert in objecting to Trump’s EP designations.

          The number of documents that must be reviewed and the time frame that has been imposed likely will require Trump to use a review team of at least several people (or more). Without seeing the documents, it is impossible to know how long the review will take. In a “normal” document review, some documents can be reviewed very quickly, some not. One of the risks involved with multiple reviewers is inconsistent determinations. In the ideal world, the review team would work to resolve any inconsistencies. Whether Trump’s will do so remains to be seen. Wouldn’t shock me if Trump grossly over designates docs as EP.

          It will be interesting to me to see which specific arguments the government makes in opposing Trump’s EP designations. I’m sure we’ll see the ones they have raised already, plus maybe some more. Not sure this would be the appropriate point (before Dearie) to raise the U.S. v. Nixon argument that the government can use EP docs in a criminal prosecution. Cannon may try to rule on that, but I’d think the court handling the actual trial would be the appropriate court to decide that issue.

        • Yorkville Kangaroo says:

          And where is The Donald today? Sure as hell not reviewing documents.

          Who here does NOT think The Donald is just going to tick everything on the spreadsheet as EP, A-C or some other class to submit he has an overarching right to hold the material in question?

    • earlofhuntingdon says:

      Trump’s lawyers are probably not remotely staffed or ready for this schedule and the amount of work it entails. How will they divvy up the work managing what amounts to discovery in a complex case?

      Kise’s purported three million payment is either likely to be used up faster than everyone but Kise might have thought, or Trump’s other lawyers should be asking the Don for a lot more money. The Don, naturally, will be shouting and having a bad hair day.

      • earlofhuntingdon says:

        It’s hard to overstate how steep the learning curve is in managing complex litigation. If Trump’s lawyers don’t already have the experience, staff, and IT resources, to handle it, and experience in pricing the work, the Don will be in even more trouble.

        • earlofhuntingdon says:

          Not necessarily. Depends on whether Kise was hired for his personal attributes or because he’s also part of a firm that has and is willing to bring to bear the experience, staffing, and IT resources needed to handle digital discovery of any magnitude. There are many law firms for which this sort of thing is their daily bread, but Trump tends not to hire them.

          It appears that many of Trump’s lawyers are hired for their looks, their hard right-wing pedigree, and their faith in Trump’s decidedly unChrist-like persona. Christina Bobb, for example, appears unable to lawyer or manage her way out of a wet paper bag.

        • bmaz says:

          Yeah, I’ll take the wet paper bag in that battle. But will note that Bobb has managed to go mostly dark and to ground lately, which actually is smart for once. She, more than the others, has some real exposure.

      • L. Eslinger says:

        Gosh, this sounds like a wonderful opportunity for young go-getters to put down their avocado toast and get some real-world experience to put on their resumes! No, not an unpaid internship…they should pay Trump!

        Ope…I broke the exclamation point key on my computer [exclamation point, exclamation point]

    • John Paul Jones says:

      The speed with which the judges expect first inventory to be compiled suggests DOJ has already completed most of this work on its side; which puts pressure on team Trump to respond equally promptly. To me it looks like the SM wants this wound up as quickly as is practical.

      • newbroom says:

        Yes, delay is basically obstruction in this case at least. It’s the former guy’s entire strategy. This time his opponent has the resources to finally put this obstruction of justice into its proper light.

  9. Doctor My Eyes says:

    In all the excitement, I fear I’ve been caught up in speculation. Apologies, but I’ve been wondering if one reason Trump is so interested in getting the documents back is so he can figure out which of the things he stole have been taken by the DOJ and therefore, by process of elimination, which stolen documents are still lying around his various properties somewhere. Or perhaps there is one item in particular that he now wonders where the hell it is.
    “Melania, have you seen that list of spies I was working on the other night.”
    “Have you looked in the pool shed?”
    “Yes, I had Evan do a thorough search.”
    “Maybe the DOJ took it.”

    • Yorkville Kangaroo says:

      That conversation is even better if you imagine Alec Baldwin doing The Donald and Laura Benanti doing Melania.

    • timbo says:

      The ex-President’s lawyers seem to be more interested in finding something they can claim was planted. And Cannon appears to have gone out of her way to given them that opportunity. Now those same lawyers are on court managed schedule to put up or shutup with such accusations on the record and under oath. God speed, Judge Dearie!

  10. punaise says:

    WaPo just now:

    Dearie asks Trump lawyers whether they believe FBI lied about seized documents

    Order by Mar-a-Lago special master is the first time Donald Trump’s attorneys have been asked to confirm or deny his claims in court

    ETA: so it appears that Dearie is calling the shots now, but how long a leash will Cannon grant him?

    • paul lukasiak says:

      Unsurprisingly, the reporting on the Post thread has it wrong.

      All that Dearie is demanding is that Team Trump verify the Detailed Property Inventory (aka ECF-1) that was released by Cannon. He asks whether any of the SPECIFIC ITEMS found on the Inventory (of which there are precious few) were not actually taken from Mar-a-lago. (“A list of any specific items set forth in the Detailed Property Inventory that Plaintiff asserts were not seized from the Premises on August 8, 2022).

      The Post thread is ambiguous, in that it refers to ” any items on the inventory list were not in fact taken from the premises”, but the people who are using the Post thread as the basis have clearly not read the document itself.

      The Post DOES get it wrong by claiming that Trump has to say whether documents were classified or not. Dearie specifically excluded, pursuant to Cannon’s order in response to the Appeals Court decision, that his order is “excluding documents bearing classification markings (the “Seized Materials”). See Appointing Order ¶ 2(a); Order Following Stay ¶ 1”

      • DryHeat says:

        Trump’s people have floated the idea that the FBI planted documents at Mar-A-Lago.

        By including an item in the Detailed Property Inventory, the government is unambiguously saying that such item was in fact seized at Mar-A-Lago on 8/8/2022.

        Dearie requires the Plaintiff to provide a list of “any specific items set forth in the Detailed Property Inventory that Plaintiff asserts were not seized from the Premises on August 8, 2022.” (Case Management Plan, p.1)

        That seems like a pretty clear demand that Trump lawyers say “whether they believe FBI lied about seized documents.”

        • timbo says:

          I can’t wait for Team Twitler to claim that the documents that were planted don’t appear in the full inventory submitted by DOJ to Dearie… *facepalm* Ugh!

  11. Doctor My Eyes says:

    Dearie says

    This submission shall be Plaintiff’s final opportunity to raise any factual dispute as to the completeness and accuracy of the Detailed Property Inventory.

    Ahhhh. Whew. The power of this statement, the authority to make it and back it up, that’s what we lose when the judiciary is corrupted.

    This will be your final opportunity to raise any factual dispute as to the completeness and accuracy of

    – the 2020 presidential election results
    – antifa causing or participating in the J6 attack on the capitol
    – HILLARY’S EMAILS!!!!!!!!!
    – Democrats drinking baby blood or whatever the fuck it is
    – And so much more

    Prospect of the loss of this power to prevent lies from leading to results–this is what makes my stomach churn and begins to take days off my life.

  12. MT Reedør says:

    “When you send the documents to Mar-a-lago, or wherever you send them…” they are automatically declassified.-DT

    • pdaly says:

      “to Mar-a-lago, or wherever you send them”

      I heard that, too, and assumed he was talking about his actions instead of the general sense that ‘someone would declassify and send documents.’ At first I thought he meant his other properties, but I suppose Russia or Saudi Arabia or some intermediary was not ruled out in his sentence.

    • Thomas Paine says:

      Yeah – one of the scariest things I’ve ever heard Trump say. What missing documents did he send where… Moscow or Riyadh ??

      • Doctor My Eyes says:

        Yeah to all that. Was it a conscious threat? Or a kind of boast, reminding the IC that he knows things that they don’t know and wish they did. Nyah na na na. Expression of dominance using his habitual mafia code.

        Is it a coincidence that Putin and Trump are going to be feeling increasingly cornered on a remarkably parallel schedule? Cornered narcissists: Yikes!

        • KennyG says:

          Where are you Bmaz

          [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This comment was under your second username, “Kennygauss” while your previous 7 comments have been under “KennyG.” I’ve reverted your username this once in case you’d forgotten it, but let’s stick your original username here on forward. Thanks. /~Rayne]

  13. Paulka says:

    “When you send the documents to Mar-a-lago, or wherever you send them…” they are automatically declassified.-DT

    Soon to be quoted in subpoenas for Bedminster and Trump Tower?

  14. Ddub says:

    OT to anyone who remembers the 50 yard line yokel coach Kennedy. Apparently he’s a no show at work. Not a peep. This is from Baptist News Global:

    Where was the coach? According to Westneat (who researched for the Seattle Times), he was in Alaska, meeting with former Vice President Mike Pence and evangelist Franklin Graham. And on the eve of the Bremerton school’s first game of this season, Kennedy was in Milwaukee being presented with an engraved .22-caliber rifle at an American Legion convention.

    • P J Evans says:

      Apparently he isn’t actually interested in coaching any more. Bremerton had four openings and he didn’t apply for any of them, and hasn’t shown up at all, if he still has a job there. He seems to want to be the next “Joe the Plumber”.

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