Under Seal, Trump Accuses Hand-Picked Special Master of Not Following Orders

Trump appears to be accusing his hand-picked Special Master, Raymond Dearie, of violating Judge Aileen Cannon’s rules under seal.

In a government request for an extension of deadlines that appears to be necessitated because document review vendors either refuse to work with Trump, or Trump has made himself impossible to work with, it lays out three objections Trump made to Dearie’s September 22 case management plan under seal (such objections were due Tuesday). At least one of the complaints appears to accuse Dearie of violating Judge Cannon’s September 15 appointment order.

Below, I’ve shown passages from Cannon’s order, Dearie’s implementation of that order, and DOJ’s response to Trump’s objection; that helps to show what Trump’s complaints must be.

Cannon order:

Verifying that the property identified in the “Detailed Property Inventory” [ECF No. 39-1] represents the full and accurate extent of the property seized from the premises on August 8, 2022, including, if deemed appropriate, by obtaining sworn affidavits from Department of Justice personnel;

Dearie order:

No later than September 30, 2022, Plaintiff shall submit a declaration or affidavit that includes each of the following factual matters:

a. 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.

b. A list of any specific items set forth in the Detailed Property Inventory that Plaintiff asserts were seized from the Premises on August 8, 2022, but as to which Plaintiff asserts that the Detailed Property Inventory’s description of contents or location within the Premises where the item was found is incorrect.

c. A detailed list and description of any item that Plaintiff asserts was seized from the Premises on August 8, 2022, but is not listed in the Detailed Property Inventory.

Sealed Trump objection?

DOJ response:

First, contrary to Plaintiff’s objection, the verification required by Plaintiff of the Detailed Property Inventory is a condition precedent to the document categorization and privilege review. The Special Master needs to know that that he is reviewing all of the materials seized from Mara-Lago on August 8, 2022 – and no additional materials – before he categorizes the seized documents and adjudicates privilege claims.

Cannon order:

Plaintiff’s counsel shall review the materials, allocate each of them to one of four mutually exclusive categories listed below, and prepare and provide to the Special Master a log stating, for each item or document, the particular category claimed and on what basis.

The four categories are as follows:

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.

Dearie Order:

Plaintiff shall provide the Special Master and the government with an annotated copy of the spreadsheet described above that specifies, for each document, whether Plaintiff asserts any of the following:

a. Attorney-client communication privilege;

b. Attorney work product privilege

c. Executive privilege that prohibits review of the document within the executive branch;

d. Executive privilege that prohibits dissemination of the document to persons or entities outside the executive branch;

e. The document is a Presidential Record within the meaning of the Presidential Records Act of 1978, 44 U.S.C. § 2201, et seq. (“PRA); see id. § 2201(2); and/or

f. The document is a personal record within the meaning of the PRA; see id § 2201(3).

Sealed Trump objection?

DOJ response:

Second, that the Amended Case Management Plan has six categories (ECF 112, at 3) and the Appointment Order four (ECF 91, at 1) is entirely a function of the fact that the four categories in the Appointment Order speak of “privilege” in general and do not (as the Amended Case Management Plan does) differentiate between attorney-client and Executive privilege. The Amended Case Management Plan is entirely consistent with the Appointment Order. Plaintiff’s objection has no logical basis.

Cannon order:

Evaluating claims for return of property under Rule 41(g) of the Federal Rules of Criminal Procedure;

Dearie order:

Once the Court has reviewed the Special Master’s recommendations and ruled on any objections thereto, the Special Master will, if necessary, consider Plaintiff’s motion for the return of property under Federal Rule of Criminal Procedure 41(g). Plaintiff shall submit a brief in support of the motion no later than seven calendar days after the Court’s ruling on the Special Master’s recommendations. In addition to addressing the merits of the Rule 41(g) motion, Plaintiff’s brief should address specifically whether the motion may properly be resolved in this action or must instead be decided as part of the docket in the action in which the relevant warrant was issued, 9:22-MJ-08332-BER.

Sealed Trump objection?

DOJ response:

Third, the Special Master’s request for briefing on a particular point of law is similarly consistent with the Appointment Order. The government will brief that point of law. It behooves Plaintiff to brief that point as well.

It’s fairly clear why Trump has leveled these objections, and equally clear why he filed them under seal.

If Trump complies with the order to confirm or deny the inventory, it will require him to admit there are 103 documents bearing classification marks that he didn’t turn over in response to a subpoena, an element of the obstruction and possibly the Espionage Act offense. To make any claims about the inventory, Trump will quite literally either have to confess he committed at least one crime or his lawyers will have to affirmatively lie (and do so without access to the other FBI evidence documenting their search protocol that would disprove the lie).

With regards the designations, labeling documents with six non-exclusive labels effectively amounts to declaring the basis underlying Cannon’s four “mutually exclusive” designations, but it also requires Trump to lay out where he disputes the law as it actually exists. Adhering to the meanings of “personal” and “Presidential” records as laid out in the Presidential Records Act would accept the legal guidelines imposed by that. Requiring Trump to label something as both Presidential and Executive Privileged requires him to accept that personal items cannot be the latter. Making claims of Executive Privilege — which must be made to treat such things as privileged — would make any appeal easier. Distinguishing between Executive Privileged documents that can and cannot be shared within the Executive branch will similarly make DOJ’s appeal easier and help prove that Trump withheld the latter to obstruct the function of the Archives. And to distinguish between Attorney-Client and Executive privilege would be to concede that government lawyers didn’t work for Trump. To be sure: Cannon did say Dearie should use four mutually exclusive categories, but these six are the ones that Dearie would have to adjudicate and (as noted) Trump would always need to affirmatively claim both attorney-client and Executive Privilege. Dearie can’t do his job if Trump won’t specify what kind of privilege he is claiming here. But by suggesting Dearie’s order is inconsistent with Cannon’s order (as DOJ’s response suggests Trump is doing), Trump may be trying to hasten to the point where Cannon fires Dearie and replaces him with someone who’ll hold Trump to a standard other than that required by a Special Master review, not to mention the Presidential Records Act.

Briefing the 41(g) issue will make it easier for DOJ to show, on appeal, that Judge Cannon overstepped by asserting jurisdiction.

By keeping all these objections under seal, Trump makes it harder for the press to call him (and Cannon) out for — as Dearie noted in the hearing — “having his cake [of a civil suit] and eating it too,” demanding relief without being willing to put in writing what claims he himself is making. His objections, whatever they are, must be written forms of the same complaint that Jim Trusty made in the hearing.

James Trusty, one of Trump’s attorneys, called it “premature” for Dearie to consider that issue right now. “It’s going a little beyond what Judge Cannon contemplated in the first instance,” he said.

In one of several moments of palpable tension with the Trump team, Dearie replied: “I was taken aback by your comment that I’m going beyond what Judge Cannon instructed me to do. … I think I’m doing what I’m told.”

By attempting to do this under seal, then, Trump is also attempting to hide the nature of his complaints in case Cannon decides to respond by firing Dearie. If she fires Dearie with this public (and she might!), it’ll make it all the easier for the 11th Circuit to reverse the entire appointment as an abuse of civil procedure.

Cannon is still hiding the filter team status report that would show that she made false claims about its contents to even claim jurisdiction, and she may well hide Trump’s objections for the same reason: because they make her own actions all the more improper.

DOJ repeated the same point Dearie made in the hearing: as the plaintiff before Cannon, Trump bears the burden of proof, not DOJ.

Plaintiff brought this civil, equitable proceeding. He bears the burden of proof. If he wants the Special Master to make recommendations as to whether he is entitled to the relief he seeks, Plaintiff will need to participate in the process by categorizing documents and providing sworn declarations as the Amended Case Management Plan contemplates.

But somehow, none of the crack lawyers representing Trump or Judge Cannon thought through that if this is really treated as a civil suit, to prevail, Trump will need to make affirmative assertions that DOJ can then use in a criminal case against him.

Update: Trump has now released his objections, which he stated he didn’t want to release. He submitted it with this letter, which claims the government seized 200,000 pages of documents from his home.

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196 replies
  1. MaltbyD says:

    I enjoyed Teri Kanfield’s take as well. “I wonder why he filed his objections under seal? My guess: he realizes that every step of this case will be public and he will be a laughing stock each step of the way.”

  2. DrAwkward says:

    Corrigendum: in paragraph 2, the hyperlink for the text “request for an extension” points to the September 22 case management plan.

  3. JonW says:

    So if I understand this correctly, this amounts to a massive own-goal by some combination of Judge Cannon and the Trump legal team. Is keeping it under seal Judge Cannon’s get out of jail free card? I.e. can she just halt the special master proceedings and take over the review of the non-classified documents, and no one will be the wiser?

    Also, small detail question, how is it that the Trump objection was under seal but the DOJ response not under seal, when the response so clearly indicates the basic outline of the objection?

    • Ravenclaw says:

      With regard to your second point – presumably the fact that you are playing your cards close to the chest does not prevent me from showing mine. If my hand reveals something about what you’re holding, well, that’s life.

    • timbo says:

      Not if the sole purpose of all this is to delay the investigation until such time as Trump (or the GOP) can get back into power enough to stymie any further indefinitely.

  4. flounder says:

    Does there have to be a legit basis for filing under seal? Doing so because it might be embarrassing to not have the filing sealed seems a stretch to this non lawyer.

    • emptywheel says:

      One thing that’s interesting is that sealed filings don’t come in three-step processes, like their do in Reinhart’s court. That may be Cannon’s preference, but it’s not clear she’s permitting each of these sealed filings.

      • SMS60 says:

        The Local Rules require a motion in order to file something under seal. The docket shows one “motion” under seal and one “order” under seal. So they may have followed the rule and thereby constrained DOJ somewhat in what they can say about it. However, the proposed sealed materials are not supposed to be filed until the court has granted the motion for leave to file under seal. So the few recent docket entries marked “sealed” don’t necessarily track with how its supposed to be done.

        • emptywheel says:

          TY. They just made DOJ go back and refile the inventory with public notice. Presumably they’ll do the same with Trump’s.

      • Peterr says:

        She hasn’t yet acted to make them public, though. It might not be her preference, but she’s going along with it.

      • paul lukasiak says:

        Technical question:

        Are we certain that the Trump objections were filed under seal. IIRC, ex parte communications with Judge Dearie are permissible. Could this just be a case of Team Trump complaining to Dearie privately, and Dearie asking the DoJ for its response (with the DoJ making the whole thing public by adding it to a motion on scheduling?)

      • nedu says:

        See para 9 on p.5 of DE 91.

        Any potentially privileged, confidential, or national security material that is submitted shall be filed under seal.

        Note that while the other two sentences in that para (continued onto next page) are directed to the Special Master, that sentence reads generally.

  5. Peterr says:

    DOJ making their response as an ordinary public filing is both a poke in the eye to the Trump team and an invitation to the media to ask/demand that Trump’s filing be made public. I’d love to get confirmation by a lawyer, but it seems to me that a party cannot file under seal without the approval of the judge. Thus, Cannon is going along with Trump’s play here.

    My favorite lines in the DOJ reply are these: “The government will brief that point of law. It behooves Plaintiff to brief that point as well.”

    *snap*

    I can hear the unspoken “But you be you” between the lines there.

    • harpie says:

      That IS a good one! I like this, too:

      “If [PLAINTIFF] wants the Special Master to make recommendations as to whether he is entitled to the relief he seeks, Plaintiff will need to participate in the process by categorizing documents and providing sworn declarations as the Amended Case Management Plan contemplates.”

      [I’m hearing]: DOJ: “Put up or shut up.”

      • Sue 'em Queequeg says:

        Exactly. Looking at DoJ’s responses as someone who simplifies legal/disclosure language, these responses seem to have been reviewed for some of the same criteria: brevity, directness, minimal legalese. The fact that such a review generally is a separate step and requires different skills suggests the recognition of an audience beyond the spheres of law and justice.

        I’d absolutely agree that with court documents in particular (as opposed to public-facing documents with significant legal/regulatory dimensions), general audiences need to remain a secondary consideration at best. I’m not qualified to judge the legal adequacy of DoJ’s language here, but assuming it’s solid, it’s always fun to see how much “snap” (h/t Peterr) can be worked in without compromising legal sufficiency.

        • Peterr says:

          Long ago I learned that the best legal “snap” is often found in the footnotes. “We don’t want to derail the flow of the brief/order/opinion, but this is too good to let slide by without further comment . . .”

          • posaune says:

            Peterr, yes! @10:28
            One in particular was in EDVA Manafort case:
            the footnote referenced an email with Manafort’s complaint re inability to print from an Excel spreadsheet, and he asked Gates to make the pdf for him and email it back. (more evidence, that). So the footnote suggested upward departure of 2 points b/c Manafort was functioning as a manager.

      • earlofhuntingdon says:

        Yes. Both Dearie and the DoJ are telling Trump either to affirm facts necessary to make his civil case – and which establish elements of the crimes the DoJ is investigating – or drop or lose his civil suit.

        Trump’s sealed filing probably includes the whinge he’s made in public filings before: requiring us to affirm facts and make our case would prejudice our defense in any future criminal prosecution. It would force Trump to incriminate himself. So, pretty please Judge Cannon, give us what we want without making him do any work for it.

        That last item captures Trump’s entire approach to business and life. But it’s not a statement I would want to make publicly in a civil suit I had (improperly) filed against a government already investigating me for violating at least three federal statutes.

  6. Amicus says:

    The fact this train wreck for Trump was so obvious from Cannon’s and Dearie’s orders led me to game out the possibility that the two were seeing eye-to-eye. That now appears to not be the case: there is no good and apparent reason for the Trump motion to be filed under seal. DOJ has taken the unusual step of referring to its contents publicly. Kise may well be off of “team documents” because he had the wisdom to see all of this and not agreed with the strategy of pursuing further relief in front of Cannon. DOJ has indicated that they will broadly appeal from the September 5 order and they have no meaningful choice: DOJ’s merits brief is due to the 11th Circuit by October 19 and it is most unlikely that Cannon will have ruled on the sundry documents issues by then. We know from the 11th Circuit’s stay ruling that Trump is going to get hammered in the 11th Circuit: you don’t issue an opinion like that and then back off of it. The briefing schedule is sufficiently long that Cannon may well rule before the 11th Circuit does, and DOJ has a significant amount of time to use the classified documents and pursue its investigation (barring an emergency run to the Supreme Court, which so far has not happened). Trump’s appellate brief is due by November 18, and DOJ’s reply must be filed on or before December 9 (although it’s 21 days from Trump’s brief so it could be sooner but Trump’s attorneys have not shown any imagination or ability). So yes, absent relief, under the Special Master’s order Trump must make admissions against interest and they are just now scrambling not to do that. Cannon may seek to help, but her days would seem to be numbered. There is a significant chance that the 11th Circuit finds that she had and has no jurisdiction over the matter, and/or depending on her shenanigans remove her from the case for good measure. Firing Dearie could achieve that objective. There is perhaps one other game afoot. Apparently it is quite unusual but there does appear to be case law that legal findings in a civil matter can have preclusive effect in a criminal proceeding. See, e.g., United States v. Baltimore & Ohio Railroad Co., 229 U.S. 242 (1913). (Gonna check that cite and will correct if necessary.) The 11th Circuit may well wind up making merits determinations – such as the Executive Privilege issue – that could bind Trump hereafter in a related criminal proceeding. That is not where you want to be. Kise is smart: Kise got out, or got himself thrown out, because he saw that nothing good is going to come of this. Some evanescent public talking points, maybe. Wheels of justice, not so much.

    • emptywheel says:

      It’s not entirely clear THAT Kise is out. He pushed back on that claim after CNN reported it. But as I understand it, 11th C is not all that easy to PHV in, and just Trusty and Kise filed on the last filing.

      Trump doesn’t want to be stuck with Halligan making his 11th C arguments.

        • Spencer Dawkins says:

          I’m thinking that if Trump had paid someone $3M to help him avoid stepping on legal landmines that he had scattered himself, he’d be a much happier man than he seems to be, today …

          • BobCon says:

            He had reasonably competent lawyers through the return of the first set of documents, but then Tom Fitton’s claims blew that up.

            Trump is capable of following good legal advice, and I think MW is right to criticize observers who treat this as a good faith effort by him. When he makes the switch to kook lawyers, like he did with 2020 challenges, he’s doing it to advance PR and political agendas.

            It’s a power move designed to attack the legitimacy of the rule of law, and reporting should frame it that way.

            • Nostradoofus says:

              “…It’s a power move designed to attack the legitimacy of the rule of law, and reporting should frame it that way.”

              Truer words were never spoken. They also be clues as to how Trump subverts everything he touches.

              He’s not fighting by the same rules…which is why he’s got the entire edifice on the verge of collapse.

              Garland had best move quickly.

            • Ginevra diBenci says:

              BobCon, Did you mean “Trump is *not* capable of taking good legal advice”? Because lately he seems to be listening only to Fitton.

      • ScorpioJones, III says:

        Additional speculative comments on Kise from Electoral-vote.com:

        A Different Kind of Hurricane Is Also Aimed at Palm Beach

        Less than a month ago, Donald Trump hired Chris Kise, a Florida attorney specializing in defending people accused of white-collar crimes. He understood Trump’s habit of stiffing his lawyers, so he demanded and got $3 million in advance. Now he seems to be out of the picture on the crime that is not only the easiest for the government to prove, but also the only one Trump committed in Florida: violations of the Espionage Act and other crimes related to unlawfully possessing government property.

        It was not explained why he is off the case, but it seems very strange since the Florida crime is the kind of thing Kise is good at and it is in a state where he has the most experience. Maybe he will be transferred to the election-tampering case that Fulton County DA Fani Willis is working on, but Kise is a Florida lawyer, not a Georgia lawyer. Or maybe he will get involved in the attempted coup case, but that is in D.C. and coups aren’t really his area of expertise. He definitely isn’t the guy to handle a case on tax or bank fraud that violates New York state law. Or maybe he worked on the Mar-a-Lago documents case for 500 hours in September so far at $6,000/hour and the $3 million is used up and he wants another $3 million and Trump said no. Who knows? Every reporter who has contacts with Trump insiders is going to try to get the scoop here.

        George Conway, always a thorn in Trump’s side, tweeted: “Obviously this means the lawyer must have given Trump actual legal advice.” Or maybe it was the other way around. Trump told Kise what he should say in court and Kise refused because he didn’t want to commit perjury and risk being disbarred and more.” (V)

    • Peterr says:

      How would a request to unseal Trump’s filing by media organizations fit into this whole thing? Presumably Cannon would deny the motion, but given what the 11th Circuit did with Trump’s frivolous arguments regarding classified documents, I suspect they would unseal it. How long would this course of arguments take — a couple of weeks, given the timeline for briefings?

    • zeke di leo says:

      If what has been reported is true and Kise is registered as a foreign agent of the Venezuelan government, perhaps it became clear that he’ll never get the security clearance he would need to do anything meaningful on this particular case. There is certainly no shortage of other cases he can bill his time on, so there’s that.

        • zeke di leo says:

          It seems so, but it isn’t clear (to me, anyway) whether he is still registered under FARA or if his previous work would keep him from getting the necessary level of clearance.

          • Ewan says:

            Well, he transferred every cent that he had received to that other firm, and he doesn’t look like a guy working pro bono on such things..

            • zeke di leo says:

              There are others on this site who are more knowledgeable about security clearances, but my guess is that being registered as a foreign agent is enough to keep him from getting clearance regardless of where the money ended up.

              • earlofhuntingdon says:

                Plus, Kise would not need to still represent a foreign power when he was seeking a clearance. That he represented one “recently” would probably be enough to deny him a clearance.

                • Jeffrey Gallup says:

                  My impression is that previously representing a foreign entity, for example as a lawyer or lobbyist, is not a disqualification for clearance, as long as that relationship is severed. Spies are obviously different, and representing a hostile foreign power like China or Russia would be different than helping the Bank of England with a legal case.

                  • Peterr says:

                    Given the current description of Venezuela at State.gov, including their “do not travel” warning to US citizens, Venezuela probably qualifies as a hostile power:

                    Do not travel to Venezuela due to crime, civil unrest, poor health infrastructure, kidnapping, and the arrest and detention of U.S. citizens without due process or fair trial guarantees. Exercise increased caution in Venezuela due to terrorism and wrongful detentions.

                    Country Summary: On March 11, 2019, the U.S. Department of State announced the withdrawal of diplomatic personnel from U.S. Embassy Caracas. All consular services, routine and emergency, remain suspended until further notice. The U.S. government has limited ability to provide emergency services to U.S. citizens in Venezuela. U.S. citizens in Venezuela who require consular services should try to leave the country as soon and as safely possible and contact a U.S. embassy or consulate in another country.

                    Sounds kind of hostile to me. More at the link.

                    • Ewan says:

                      You are obviously the experts. But the FARA site lists that he was registered only between 01/24/20 and 02/07/20, when it was terminated, and did not in fact do any work for this Venezuelan general since he transferred every single cent to another firm. In fact this engagement was ended even sooner, as the letter indicates that they agreed to do so on 01/31, so 7 days after the initial registration..

    • Bill Crowder says:

      Reading through the briefing schedule, it seems that J. Cannon has been successful: all of this has been pushed beyond the mid-term elections.

      • Reeb says:

        Bingo. He wanted a Republican House that can derail any efforts to hold him accountable, and he wanted Cannon to make it happen. Every delay — no matter how stupid or frivolous it seems — is giving him and his cronies breathing room.

        • Peterr says:

          The House cannot stop DOJ from investigating misconduct, indicting those whom they believe carried out that misconduct, and taking those folks to trial. They can whine and whinge about it, they can bitch and bloviate about it, they can fundraise and fulminate over it, but they cannot stop it.

      • Tom Burnett says:

        Does that really matter, though? The outline of his crime (keeping classified documents and Presidential records at Mara-Lardo and who knows where else) is pretty well known at this point. I don’t think an indictment in advance of the midterms would move the needle much in either direction.

  7. PeterS says:

    I wondered a few days ago what would happen if/when Trump’s team of crack lawyers filed a bullshit response. Now we know part of the answer. And if/when they eventually file an affidavit/declaration it might be just as honest as what Trump’s enablers often say under questioning: I don’t recall.

    (I don’t think Cannon will fire Dearie, though I do think there’s a bad joke waiting there.)

  8. Fraud Guy says:

    I’m imagining this as a set of 3 Venn diagrams.

    DOJ and Dearie seem to be on the same page, that the civil procedure is completely separate from the criminal procedure, and since this is a civil complaint it will be treated as such, even if it will expose his criminal liability.

    Cannon tried to overlap the two to create ambiguity, but after being shut down by the 11th circuit, is watching them move apart with some rapidity.

    Trump just has one circle: “l’etat, c’est moi!”

    • emptywheel says:

      Pretty well stated. Yeah.

      It’s unclear how far out on a limb Cannon wants to go this early in her career. If it ends badly, she’ll be a laughing stock (tho it’s not like that prevented Brett Kavanaugh from rapid promotion). But if it helps Trump at all she could be a made person.

      • Nick Barnes says:

        I get the impression that Trump may not always appreciate, or reward, attempts to help him which are fruitless (due to being undermined by his own determined stupidity). If this civil suit ends badly for him, which seems increasingly likely, then he will blame everyone involved apart from himself, including Cannon. They should have helped him *more*. She was the _judge_, he will fulminate. She should have ruled for him, just ordered the Feds to give everything back, but she was too chickenshit, he will declare.

        • Purple Martin says:

          Yes, that’s the AG Sessions model. Recall, from the EW “Steven Engel & Ed O’Callaghan” post a few days ago, Cory Lewandowski said he wrote down the following Trump dictation, with Trump directing Lewandowski to tell Sessions to give a public speech announcing:

          I know that I recused myself from certain things having to do with specific areas. But our POTUS .. . is being treated very unfairly. He shouldn’t have a Special Prosecutor/Counsel b/c he hasn’t done anything wrong. I was on the campaign w/ him for nine months, there were no Russians involved with him. I know it for a fact b/c I was there. He didn’t do anything wrong except he ran the greatest campaign in American history.

          Now a group of people want to subvert the Constitution of the United States. I am going to meet with the Special Prosecutor to explain this is very unfair and let the Special Prosecutor move forward with investigating election meddling for future elections so that nothing can happen in future elections.

          Lewandowski did not forward that message at told, and Trump followed up with his long, slow-motion humiliation and firing of Sessions.

          I very much see Judge Cannon being underbussed for what Trump will honestly believe is her, not his, failure.

          • Peterr says:

            He can fume about her failing to protect him all he wants, but he’d have a helluva time underbusing a sitting federal judge with a lifetime appointment.

            That he is the one who gave her that appointment will only make him angrier, but that won’t give him any more tools to underbus her.

            • Purple Martin says:

              I was thinking of it only in the context of her goal of becoming a TrumpWorld icon (with a seat on the 11thCCoA just to start). Instead, the permanent bus tire tracks will be the mark of a TrumpWorld pariah.

  9. JonW says:

    Another strategy question: what’s preventing Trump from seeing where this is going, not wanting to file things that will prove his obstruction and retention crimes, and just withdrawing his lawsuit right now? Can’t he unilaterally make everyone pack their bags and go home?

    • gknight says:

      NAL. Is that called motion to withdraw or vacate the lawsuit? Does that possibly set up a countersuit? Can a judge dismiss with prejudice so that the plaintiff may not refile in another venue? Can the 11th overrule a Cannon ruling here that would dismiss the lawsuit?

      Lots going on here, thanks loads EW et al.

      • Peterr says:

        You underestimate his capacity to find reasons to fundraise. For instance . . .

        Dear Friend of Strong Elections!

        As you know, I have been the Victim of a Great Hoax, perpetuated by the DOJ, now with the Help of a Deep State Special Master. I refused to continue to allow them to waste the money people like you have sent in for my legal defense and to return me to my Rightful Place in the White House, so I terminated this line of their attack.

        But you know that this won’t keep these Great Hoaxters from continuing to harass me and steal my Rightful Possessions from my Own Home! That’s why I need you to send me another contribution, so I can be prepared for What is Coming. With your help, we will be able to turn the tables on them, and hit them legally in ways the likes of which No One has Ever Seen Before. But I can’t do it without your financial support . . .

        I’m not sure I have the Capitalization correct, as I had a procession of teachers who drummed proper spelling and grammar into my head quite deeply, and it’s hard to set all that aside. But you get the idea.

    • joel fisher says:

      I think he can. Even if the JD tries to resist this move–which might be the next centipede shoe to drop–Cannon will let him go.

      • bmaz says:

        I have no idea why so many people are convinced Cannon is going to cut Dearie loose. Trump suggested him, both parties stipulated to him and Cannon appointed him. I doubt he is going anywhere.

        • JonW says:

          I was referring in my question to Trump withdrawing the entire civil suit in front of Judge Cannon not to the SM getting removed. I think (but am not sure obviously) that this is what joel fischer was reacting to too.

          I didn’t realize that a defendant in a civil suit could object to the suit being withdrawn. Is that really possible? Or can a judge refuse to dismiss if the plaintiff tries to withdraw? I recall there being a lot of coverage on this site when DOJ under Barr tried to withdraw charges against Flynn after his guilty plea but that was a criminal case.

          • earlofhuntingdon says:

            Civil suits in federal court are commenced and terminated under the Federal Rules of Civil Procedure. (The F.R.C.P. See, http://www.law.cornell.edu/rules.) A plaintiff starts a civil suit by filing a complaint under Rule 3. (Trump bypassed that requirement, and Cannon let him get away with it, possibly in order to ensure that she got the case assigned to her.)

            Rule 41 governs terminating an action. The plaintiff can do it on his own, if he does it before the defendant files an answer. We’re past that.

            Trump now needs either a court order from Cannon or the government’s approval. That normally leads to a dismissal without prejudice, which leaves the parties in the position they were in before suit was filed.

            Alternatively, Trump can fail to prosecute his claims, following which the government can ask for a dismissal by the court. If granted, that typically becomes a judgment on the merits, which is normally against the plaintiff.

            • Peterr says:

              Which brings us back to Marcy’s post:

              If Trump complies with the order to confirm or deny the inventory, it will require him to admit there are 103 documents bearing classification marks that he didn’t turn over in response to a subpoena, an element of the obstruction and possibly the Espionage Act offense. To make any claims about the inventory, Trump will quite literally either have to confess he committed at least one crime or his lawyers will have to affirmatively lie (and do so without access to the other FBI evidence documenting their search protocol that would disprove the lie).

              That’s not something Trump wants to have any court declare to be true, as he preps for future criminal proceedings.

        • Nick Barnes says:

          I think our opinions here are largely influenced by Marcy, who pointed out in a post the particular change that Cannon made in the SM appointment boilerplate which makes it easier for her to get rid of him, and who has suggested many times in posts and comments that it’s a plausible future move in a Trumpist game plan.

          • Hika says:

            Cannon’s relationship to Dearie as the Special Master will be illuminated by if/when/how Cannon responds to Dearie’s “respectful recommendation” that his authority to issue interim reports be reinstated.
            Spaced out link: https://twitter .com/popehat/status /1574858276100984832

            “what do you make of this judge dearie?”
            “i don’t know what to make of him, ducky.”

  10. Vlad says:

    What I have not seen is anyone really getting to the matter that apparently all of classified envelopes were empty?

    1. How does that effect the overall case?

    2. And, even more troubling, where TF are the contents?

    • BirdGardener says:

      The absence of press coverage on national security related investigations doesn’t mean the investigations aren’t being done.

  11. Billy says:

    I’m sorry, however interesting the points of law are, is not our previous dear leader’s goal to simply delay, delay, delay, delay, delay, delay ?

        • earlofhuntingdon says:

          Obviously, Billy can speak for himself. But, yes, Trump uses delay and, especially, chaos to disguise his aims and to achieve them.

          Trump won’t end a lawsuit, for example, or anything else, with a simple, clean withdrawal. He’ll make as messy a withdrawal as possible, leaving all sorts of things to pick up, and then scream about being a victim.

          The chaos is important, to enable Trump to spin failure into complete victory. Here, I’m sure he’d also like to avoid Dearie being able to complete anything for the public record. The contrast with Dearie and the DoJ is refreshing.

          • Peterr says:

            The thing is, being messy in this lawsuit is going to cost him (or someone) real money. It’s one thing to stiff a plumber, but stiffing the court or stiffing the executive branch is something else.

            Cf. also the mess with no document handling vendor wanting to take Trump on as a client, as they do not regard him as trustworthy when it comes to paying his bills.

            And it looks like this is Trump money being spent, not (for instance) the RNCs money.

      • Peterr says:

        Unless you are speaking of Tom Delay, the #2 to GOP Speaker Denny “The Wrestler” Hastert, in which case Delay is mean to the end.

        • rip says:

          Tom Delay – aka “the Exterminator” (owned Albo Pest Control). How I miss those slimy creeps from the prior century. Unfortunately some of them are still alive and slithering (Gingrich, Rove, Abramoff). The slime continues…

  12. jhinx says:

    Wasn’t one of Trump’s complaints, earlier in the suit, that the government was lacking transparency? And now he files his Dearie objections under seal?

    “I don’t practice what I preach because I’m not the kind of person I preach to.”

    • Doctor My Eyes says:

      Yeah, I immediately thought of the growling demands to unseal the search warrant, I think it was. Pointing out predictable Republican hypocrisy is a full time job, and increasingly boring.

    • Ddub says:

      Hadn’t heard that one, that’s a wonderful lookup!
      Attributed to J. R. “Bob” Dobbs, the fictional figurehead of the Church of the SubGenius.

  13. Jenny says:

    Thank you Dr. Marcy.
    For years Trump has had lots of practice to play the victim, be a chi sucker and an exploiter of humanity.
    Exhausting!

  14. Spencer Dawkins says:

    “But somehow, none of the crack lawyers representing Trump or Judge Cannon thought through that if this is really treated as a civil suit, to prevail, Trump will need to make affirmative assertions that DOJ can then use in a criminal case against him.”

    I’m thinking about your final point, and wondering if their problem is that every civil suit Trump has been involved in, had a Trump crime behind it. If that’s his experience, Trump conflating civil and criminal law is understandable.

    /s, probably.

  15. GKJames says:

    With respect to his first objection, Trump doesn’t have the duty to verify the property seized, does he? Per Cannon, it’s Dearie who has to “verify[ ] that the property identified in the [Inventory] … represents the full and accurate extent of the property seized from the premises on August 8, 2022….” And get sworn affidavits from DOJ if necessary. Presumably, then, Trump argued that, as a first step, it’s up to DOJ, not him, to confirm that the inventory represents the extent of what the FBI took.

    • earlofhuntingdon says:

      Cannon’s order is impossible to comply with, if Trump-the-plaintiff doesn’t participate in the process. Rather, if Trump fails to dispute the defendant’s sworn affidavit, the affidavit is accepted as accurate.

      Dearie is simply taking the logical course to complete the order Cannon issued: demand that Trump accept or dispute, item by item, what’s on the list the government claims, under oath, is a complete list of the items seized from MAL (barring privileged items retained by the taint team).

      The processes entirely undercuts Trump’s current PR campaign, so he’s trying to subvert it.

    • Peterr says:

      The DOJ has already filed sworn affidavits.

      Dearie has noticed that the Plaintiff is alleging things outside of court that the Plaintiff’s lawyers are not saying inside court. He is asking, quite properly, that the lawyers clear this discrepancy up with their client and get back to him.

      And this isn’t a trivial matter. Trump is alleging a serious crime: that evidence is being planted in a case involving national security matters. If that’s what is going on, Dearie need to see the evidence to support that allegation so he can come down on the DOJ like a ton of bricks. If that’s not what’s going on, Dearie will come down like that on Trump. As a practical matter, it’s hard to see how Dearie could ignore what Trump is saying.

      If Trump is going to make an allegation of criminal behavior like this while Dearie in reviewing these documents, Trump has the absolute duty to make the allegation in court and deliver the reasons why he believes it to be so. Otherwise, he needs to STFU, as I believe the legal folks would put it.

      • earlofhuntingdon says:

        You raise an important point. Trump’s PR campaign is directly attacking the government, accusing it of felonies – in his own case – but through unsworn statements made outside of court.

        If a gag order isn’t feasible – if available, Cannon would never consider it – then Dearie is entitled to demand that plaintiff support his claims with sworn affidavits of fact and legal arguments. Otherwise, Judge Cannon is just hosting a press conference for the Don.

        • Peterr says:

          Dearie’s request of Team Trump also serves to insulate Dearie. When he takes this up in his recommendations to Cannon, he will start with something like this: “The DOJ filed an affidavit saying X and when given opportunity to dispute this claim, the Plaintiff said Y.”

          If Y=X, then there’s no problem.
          If Y does not equal X, then Dearie will follow this by giving his take on the situation and explaining his ruling to the parties and to Cannon as part of his recommendations.

          But if Trump does not respond, then Dearie can say “I gave Plaintiff an opportunity to weigh in on this, and they declined, so I take as fact that the government list is true, proper, and complete.”

      • Purple Martin says:

        Yes. In the comments string of what turned out to be a pretty fair and even-handed ‘Volokh Conspiracy’ article—an analysis of the 11thCCoA beatdown of Cannon—I tried to make that point:

        “To be clear, Team Trump has entered nothing into the proceedings of the court that shows Trump is asserting executive privilege over any of the recovered records (and in any case, it seems highly doubtful that issue will prove relevant).

        Neither blurting it on Truth Social, nor whining it on Fox News, nor braying it at a rally, enters the claim into the court record. In the end, you have to tell it to the judge, not just to your followers.”

      • Marc In Denver says:

        Also, if this really is a civil suit, the defendant can compel the plaintiff to testify, and while the plaintiff can plead the fifth, that can be held against the plaintiff. And the DOJ can run the plaintiff down a long series of damning questions (as long as they are relevant?)

    • Taxesmycredulity says:

      IANAL but a simple answer is: How would Dearie even know if there are items included in the list that were a) not seized or, if seized b) were from a location different than stated, or c) were seized but don’t appear on the inventory? Only Plaintiff can do that.

      • Fraud Guy says:

        Exactly. And Plaintiff, or at least his lawyers, know that doing so will expose him to greater criminal liability. He caught the car, thinking it was a Yugo, but it turned out to be the front wheel of a triple-trailer semi at the head of a convoy that’s gonna keep rolling over him.

        • P J Evans says:

          Or, the incident I saw, someone trying to make a right turn *inside* a semi that was waiting to make a right turn. The car lost a fender. The semi driver didn’t even notice, AFAICT.

    • farmfresh says:

      IANAL, but in short it seems like Trump has a duty to provide evidence if Dearie says so. Canon’s order indicated that getting a sworn affidavit from DOJ is permissible, but it wasn’t exclusive. She also granted Dearie “full authority set forth in Rule 53(c)” for civil procedure, which allows Dearie to exercise the same authority as the district court in evidentiary (preliminary) hearings. She could have circumscribed his 53(c) authority in her order, but did not. If Dearie wants to compel Trump’s attorneys to provide a sworn affidavit, or forfeit their opportunity to raise future objections to the evidence, then he seems to be within his authority. Instead of complying they’ve decided to cry to mommie that the mean man is not being fair.

  16. Paulka says:

    IANAL and certainly not a defense lawyer, so I clearly will miss many of the subtleties of Trump’s arguments and his lawyers’ actions, but it seems to me that his team has one major underlying problem. Trump is guilty as sin and obviously so and easily proven as such and in a situation that is easily and clearly understandable by the common folk. He had what he wasn’t supposed to have (including highly sensitive documents), he made extensive efforts to retain and hide them and was caught red handed with his hand in the cookie jar. The poor arguments that he is raising appear to be a result of the fact that there just isn’t a good defense in the matter. So, he is stuck with timeliness (i.e., delay) to reach a point where he can consider other (political options) that will have significant impacts on him in other ways (i.e., fundraising and expenditures upon announcing presidential candidacy) even though that comes with serious doubts as to whether it will protect him in the long run from indictment. And one thing he was counting on is failing-judges other than Cannon are not playing his game.

    Couldn’t happen to a nicer guy.

  17. Klaatu Something says:

    Insight like this is why I love this site, thank you all

    Trivial typo: when you quoted Dearie, you added “too” to his cake quote, but he didn’t say it.

  18. earlofhuntingdon says:

    Should I assume that Ron DeSantis will ask for hurricane-related recovery assistance solely from other Republican governors – and the good folks on Martha’s Vineyard – and not from the godless feds? Asking for a friend.

    • BobCon says:

      He’ll let the feds help his backers and take credit, block them from helping the rest and use it to attack the feds.

      He’ll count on the political press to treat this as an example of his leadership, not his weakness, and to repeat his blame of Democrats for GOP divisivenes.

      Basically, a repeat of his Covid response.

      • Leoghann says:

        He has Greg Abbott’s example handling the federal aid from Hurricane Harvey to use as a roadmap. The Texas counties that vote Democratic are still waiting for their money.

  19. bokeh9 says:

    When does another “Thank you” appear patronizing?
    I’m older than dirt and have been reading Marcy since she joined Jane Hamsher’s fireside joint (maybe before, yesterday being vaguely gray). I’m haunted that Trump’s consistent delaying tactics will somehow dilute MAGA’s legal issues to the point where flirting with fascism becomes “just another Cat-5 storm”. Our Only Hope becomes voices like yours.
    So “Thank you, Marcy” for all you do, from me and my newly politically-active 12-year-old granddaughter here deep in the dark heart of Trumpistan.

  20. paul lukasiak says:

    Dearie and Cannon already appear to be at odds with each other. Dearie requested that some of the language (regarding periodic reports) from the original Cannon order be restored. Cannon denied the request, pointing out other language in the order that allows for such reports. If Dearie and Cannon were working together, this would not have been a public issue, since Dearie can talk to Cannon ex parte.

    As for Team Trump’s objections, Cannon’s original order about verifying the DPI seems to have been directed exclusively at the DoJ — she seems to have wanted the DoJ to provide a final, non-amendable inventory.

    Dearie chose to expand that order, to include some kind of “verification” of the inventory by Team Trump. Team Trump is right here, for various reasons. First and foremost, there is simply no way to say ‘nothing has been planted’ in the very short time frame allowed by Dearie’s order, and this is especially true because electronic copies are all that Team Trump will get. And that was when Team Trump would have 4 days to check the documents. Under the first and second revised schedules, the DoJ doesn’t have to provide all the documents until the deadline for Team Trump to “verify” is upon them. Expect this to go to Cannon for resolution, and expect here to side with Team Trump.

    As for the “sorting” question, while Dearie’s categories are completely justifiable, Dearie could just as easily have used Cannon’s four “mutually exclusive” categories, and created sub-categories within each one to assist his own analysis, while remaining consistent with Cannon’s orders. (aside — why two different atty/client privilege categories for Dearie? Won’t the analysis be essentially the same for both?). This will probably have to be resolved by Cannon as well.

    And Dearie also seems to be expanding his authority with his demand that Team Trump submit briefs on the return of property under Rule 41(g). Cannon’s order seems to assume that question of where to make the determination is already settled, and wanted Dearie to simply use the rules for return of property under 41(g) to decide what should be returned to Trump.

  21. The Old Redneck says:

    Winning Dearie over with facts and cogent arguments has never been Trump’s goal. My guess is that he’ll withdraw the claim that documents were planted rather than brief it. Then he’ll complain publicly – but not to Dearie – that he couldn’t figure that out because he was denied access to the classified documents which were addressed in the Eleventh Circuit’s order. People following this closely might see through this, but it will have the desired general effect: riling the base, grabbing headlines, driving fundraising, creating confusion, etc.
    Stalling and creating procedural knots are the goal here. It’s hard to overestimate the cynicism of this effort.

  22. Cosmo Le Cat says:

    In a comment above, Amicus wrote, “legal findings in a civil matter can have preclusive effect in a criminal proceeding.” Issue preclusion, also called collateral estoppel, means that a valid and final judgment binds the plaintiff (and others) in subsequent actions on different causes of action between them as to same issues actually litigated and essential to the judgment in the first action.

    So, unless Cannon reverses Dearie on identifying types of documents and particular privileges claimed, then Trump will be forced to attempt to withdraw his civil suit, as his answers could be admissions if/when he is criminally charged. I would expect the defendant/USA to oppose plaintiff Trump’s motion to dismiss.

    Q: What if a final judgment is not issued, but team Trump identifies documents in six categories, as required by Dearie, in a filing on October 7? Would Trump be estopped from making different claims in a criminal proceeding even if Trump manages to get the civil suit dismissed sometime later? In other words, would criminal prosecutors be able to use Trump’s answers against him even if no final judgment is issued in his civil suit? If so, one might expect Trump to seek dismissal before he files a response.

    • JonW says:

      This is exactly why I was wondering (and thanks to earlofhuntingdon for the link to the procedural rules) if Trump could move to dismiss before having to go on the record. It sounds like if he asks for a dismissal, he has to get approval from the Court (in this case Judge Cannon). Am I right to guess that at this stage, she would help him out by dismissing his case so he doesn’t have to go on the record admitting to crimes? Rule 41 to this total newbie seems to suggest that he can ask, and she can grant over any objection by the defendant (DOJ) because they haven’t filed any counterclaims, and even if they had, the counterclaims would be separately adjudicated.

      Also, Dr Wheeler posted a link to the letter with the 200k pages reference, and it seems to accuse the DOJ of violating privilege because the case team sent potentially privileged materials to the taint team. Whatever the merits (or lack thereof, because I thought that was what the procedure in the warrant covered) of this, it doesn’t strike me as the tone of a team that’s about to move to dismiss. So maybe they are still moving ahead with the litigation and are hopeful for some positive outcome?

  23. punaise says:

    (With apologies to Ian victims)

    I’d like to be
    Under the seal
    In an affidavit’s garden
    In the shade

    He’d let us in
    Knows what we’ve seen
    In an affidavit’s garden
    In the shade

    I’d like to be
    In court in DC
    In an affidavit’s garden
    In the shade

    We would have warrant
    Below the torrent
    In our little hideaway
    Beneath the waves

    Resting our case
    On the search place
    In an affidavit’s garden
    Near a cave

      • punaise says:

        I know… pushing my luck, huh?

        (my least favorite Beatles song BTW – that or Yellow Submarine? Hmm, there’s a common thread there.)

        • posaune says:

          You guys cracked me up this afternoon. I was laughing so hard that I left the office to come home and get some work done!

        • Peterr says:

          In the court where I do law
          Lived a man who did RICO
          And he told us of his case
          Where the plaintiff was loco . . .

          So he sailed before the judge,
          And he came there, pro bono
          And he argued under seal
          for a plaintiff muy loco . . .

  24. velcro says:

    “To make any claims about the inventory, Trump will quite literally either have to confess he committed at least one crime or his lawyers will have to affirmatively lie”

    Newbie here – I have been wondering for a while, what prevents Trump’s lawyers from providing a sworn statement that reads “Our client states he declassified all documents in his possession”, even if he did not actually declassify anything? The lawyers are telling the truth (Trump made the statement), but Trump is not under oath so he suffers no consequences for his lie?

    Why is it up to the lawyers to swear, but not the client? Or am I misunderstanding the situation?

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; we are moving to a new username requirement of a minimum 8 letters unique from other users’ names. You may wish to reconsider this one as well as your first. Thanks. /~Rayne]

  25. Riktol says:

    Hypothetical (but IMO likely) situation: Trump complains about Dearie, Cannon reviews it and sides with Trump, fires Dearie for bias (or not following orders closely enough).
    Cannon then appoints Trump’s second pick (who’s name I can’t seem to find on short notice) to replace Dearie, who then runs a special master review catering to Trump.
    Is any of that appealable to the 11th circuit? And how much damage could a special master hostile to the government do?

      • Christenson says:

        It’s all speculation, but Judge Cannon basically pushed Trump’s agenda pretty transparently with the initial special master appointment. She then got a little weird about the smackdown on the classified docs, so… it looks like she plays Calvinball for Trump.

        Just how far she is willing to take that Calvinball is an open question and I don’t think we have anywhere near enough information to do more than spitball and speculate.

        Me, I see Trump getting held in contempt for blowing deadlines and then not paying his bills, as Judge Dearie threatened in his work plan. There is no winnable way for Trump to fill out Dearie’s inventory classification spreadsheet that doesn’t admit to espionage act and PRA violations.

      • Riktol says:

        Who is “Jeebus”?
        To answer your questions, I read some stuff about the case (mostly here) and drew the conclusion that Jude Cannon is completely in the tank for Trump (I quite like Christenson’s description below). Then first sentence of this article coaxed the scenario to my mind, like Athena springing forth from Zeus’ head. Not being a lawyer (which I have mentioned before but neglected to do so in my post above) and not having the time or energy to get a law degree in another country’s legal system, I asked a specific legal question and a broader open ended one.

        Do you have anything I can read that indicates Cannon is acting like a normal judge, which might make me re-evaluate my conclusion about her?
        And do you have an answer to any of my previous questions?

        • bmaz says:

          Who is “jeebus”? Seriously? You did not ask a “serious legal question”, you were running bullshit up the wrong flagpole.

          • Riktol says:

            You’re just as bad at copy-paste as John Durham.
            And recent developments are confirming, not contradicting my conclusions about Cannon.

  26. Sandwichman says:

    “…if this is really treated as a civil suit, to prevail, Trump will need to make affirmative assertions that DOJ can then use in a criminal case against him.”

    It might be the wisest course of action for Trump to withdraw his suit.

      • TooLoose LeTruck says:

        Ha!

        Good luck with that!

        Looking at this situation as though it were a poker game, Trump is all in on a bad, bad hand and he’s trying to bluff his way thru it…

        Unfortunately, it looks like DOJ is telling him he has to show his cards if he’s claiming he’s winning.

        • P J Evans says:

          He doesn’t even have a busted flush or an inside straight. But he wants everyone to think he has both a flush and a straight.

  27. Savage Librarian says:

    Here’s Judge Dearie

    Goodness, gracious me!
    I’m so excited!
    I’m so delighted!
    There’s a reason for my sunniness:
    My funny, honey, sunniness!
    Goodness, gracious me!

    Hear ye, here ye,
    Here’s Judge Dearie,
    Walkin’ in the court
    Hear ye, here ye,
    I call him Dearie
    ‘Cause he recognizes tort.
    Hear ye, here ye,
    Here’s Judge Dearie,
    What a lucky break!
    Hear ye, here ye,
    Here’s Judge Dearie,
    He takes the cake!

    When he’s near, my mind says, “Oh!”
    My heart says, “Ah! Tra-la-la!”
    When he hisses, oh!
    It’s TNT for two!

    Hear ye, here ye,
    Here’s Judge Dearie,
    Want to fix my tie,
    Just a little angel, with a canon,
    From heaven on high, oh my,
    Sweet as pumpkin pie.

    (Lookie Lookie Lookie) Here Comes Cookie by Cleo Brown | SecondHandSongs

    https://secondhandsongs.com/performance/405190/versions

    • timbo says:

      man, that has a lot more swing than the Artie Shaw version; had never heard the original. I wonder if Astaire ever did a version with dance… seems like it’s got the right swing for one of his movies…

  28. Jeffrey Gallup says:

    Is it correct that the Trump attorneys currently have no access to the classified documents seized? And that Judge Dearie has declined to look at them either at present?

    Then could Trump’s response to Dearie’s questions be:

    1. I am unable to say whether any of the documents marked classified that were seized were ever at Mar a Lago, or whether they were planted, since we have no access to them or their content. I have no personal inventory of documents I held at Mar a Lago, and obviously no personal inventory of any that might have been planted.

    2. For the same reason, I can’t put any of them into Dearie’s categories.

    3. Hence I assert executive privilege/attorney-client privilege over all of them, pending resolution from the special master.

    Or have I missed something?

      • timbo says:

        Certainly without plaintiff in this civil case making those claims in court there is no good reason for the court to make a decision in favor of the plaintiff based on the supposition of planted evidence, correct?

    • Yohei72 says:

      Total non-lawyer answer here, just based on what seems logical to me: If one party in a suit can respond to the other’s assertions with, “Well, they could be lying, so who knows?”, and leave it at that, then don’t orderly and meaningful procedures & resolutions quickly become impossible? If you’re going to say the other person’s lying, you should be able to back it up. Otherwise, it’s just the courtroom equivalent of “FAKE NEWS”!

      But there may well be more specific and subtle legal reasoning behind bmaz’s answer.

        • Yohei72 says:

          Never implied any problem with bmaz’s answer (nor any lack of shiftiness in the obviously shifty Cannon), just acknowledged the legal reasoning around such things is often not obvious to laypeople such as myself.

    • Purple Martin says:

      Jeffery, yes, pretty sure you missed something in the Special Master’s order—it specifically excludes the 100 classified items, so is about only the other 11,000 items:

      I. VERIFICATION OF THE DETAILED PROPERTY INVENTORY

      No later than September 26, 2022, a government official with sufficient knowledge of the matter shall submit a declaration or affidavit as to whether the Detailed Property Inventory, ECF 39-1, represents the full and accurate extent of the property seized from [Mar-a-Lago address], excluding documents bearing classification markings (the “Seized Materials”). [Emphasis added. This task has been completed.]

      No later than September 30, 2022, Plaintiff shall submit a declaration or affidavit that includes each of the following factual matters:

      a. 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.
      b. A list of any specific items set forth in the Detailed Property Inventory that Plaintiff asserts were seized from the Premises on August 8, 2022, but as to which Plaintiff asserts that the Detailed Property Inventory’s description of contents or location within the Premises where the item was found is incorrect.
      c. A detailed list and description of any item that Plaintiff asserts was seized from the Premises on August 8, 2022, but is not listed in the Detailed Property Inventory.

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

  29. nedu says:

    Note that Attachment 1 to DE 123 (entered today, Sep 28) indicates on p.1 of the attachment that it was sent “By Email”. This is consistent with the statement on p.2 of the main filing that plaintiff’s “objections to the Amended Case Management Plan” were “privately filed”. See also on p.3 of the main filing:

    …objections to the Amended Case Management Plan (which was sent to chambers directly as a letter)…

    All that may indicate that Trump’s objections weren’t filed via CM/ECF.

    • earlofhuntingdon says:

      That’s the method Trump apparently used to file this civil action in the first place, an appeal directly to Judge Cannon, without using the usually mandatory complaint and electronic filing.

      He filed a motion, which Cannon accepted as sufficient. A normal judge, looking at the sophistication of the plaintiff and his bevy of lawyers, would have rejected it and the direct, hard copy approach to the judge personally, which screams, “I’m special and rules don’t apply to me.”

      • nedu says:

        Backing up a bit… Did you folks here cover the Michael Cohen thing before Judge Kimba Wood with Special Master Barbara Jones — in depth and detail?

        In the Matter of Search Warrants Executed on April 9, 2018 (NYSD 1:18-mj-03161)

        ‘Cause I semi-followed that one when it happened, but not in depth and detail. Anyhow, so what I’m wondering is, why don’t I see a complaint at the beginning of that docket either?

        I s’pose could go digging that one up further myself, but if someone here recalls it, I hope I can get an answer quicker by asking any of you.

    • earlofhuntingdon says:

      Lindsey Halligan signed an affidavit of service, page 5 of document 123, in which she attests to having “electronically filed” document 123 using “CM/ECF.”

      If document 123-1, which has no affidavit of service, were attached to document 123, it would be covered by Halligan’s affidavit.

      I see that Kise is listed as counsel for Trump in document 123-1, dated Sept. 25, but is not listed as his counsel in document 123, dated Sept. 28th.

      Jim Trusty and his co-counsel sign their letter as, “Counsel for Plaintiff President Donald J. Trump.”

      Lastly, Trusty, using no small amount of snark, blames the DoJ for the delays in meeting Dearie’s schedule, necessitating setting it back, and claims both practical and document handling expertise the DoJ lacks. LOL.

      • nedu says:

        Yes. I should clarify that when I wrote, “… weren’t filed via CM/ECF”, I was referring to the initial transmission of the letter to Judge Dearie dated “September 25, 2022”. That initial transmission presumably occurred on or about last Sunday, and presumably occurred “By Email”.

        Of course, the attachment 123-1 (purporting to be a copy of the Sep 25 letter) appears to have been “Entered on FLSD Docket 09/28/2022”, and I presume that it was submitted as an attachment via CM/ECF today.

        • earlofhuntingdon says:

          Halligan is listed as co-counsel on both documents, is locally admitted, and seems to be the lawyer responsible for transmitting pleadings via the CM/ECF system. So why would Halligan send the 28 Sept document that way, but not the 25 Sept document? Does she really think attaching a copy of it to the 28 Sept letter cures not sending the earlier document correctly?

          What a laugh that Trusty’s 28 Sept letter to Dearie throws scorn at the DoJ, claims his team is the only one with practical expertise, and that it’s the DoJ screwing things up. Horse manure.

          • earlofhuntingdon says:

            Plus, if document 123-1 purports to be a complete copy, it should have an affidavit of service page as part of it, which document 123 does. It doesn’t. But sure, it’s the DoJ fouling up the schedule.

          • nedu says:

            DE 91, on p.5, para 11 orders:

            The parties may file objections to… the Special Master’s scheduling plans… no later than five (5) calendar days
            after the service of each… Failure to timely object shall result in
            waiver of the objection.

            The objections set out in 123-1 (p.1) state that they are being made to Judge Dearie’s plan (DE 112). That amended plan was entered on the docket Sep 23, 2022.

      • P J Evans says:

        AFAICT, all the delays are from the former guy’s side, starting with not objecting to anything for two weeks after the search.

  30. E Theisen says:

    Here’s my concern: When (hopefully) Trump is indicted for this or any of his other crimes, will it be possible to assemble an objective jury?

    • bmaz says:

      Of course it is possible, that is what the voir dire process is for. That doesn’t necessarily mean you will agree with their verdict.

  31. Tom R. says:

    It’s quite simple if you look at it from his point of view. His lawyers aren’t stupid or crazy; they’re doing just what he wants them to do.

    1) As numerous commenters have pointed out, he is playing for delay. He knows he is guilty, so this makes sense. There’s no harm in trying, and since he has enough OPM to cover his legal fees, he can buy quite a lot of delay.

    The civil case delays the criminal investigation, and there will be an endless stream of motions to delay the civil case. He will pursue the civil case right up to the point where it starts hurting the criminal case, then drop it.

    Abandoning the civil case would likely result in losing it “on the merits” but that’s OK, because it’s a narrow loss. Being adjudged ineligible for a special master doesn’t prejudice the criminal case.

    The motions are garbage if you naïvely think they mean what they say, if you think the point is to meet the burden of proof and win return of the documents. However, that’s not the point. Delay is the point.

    Sometimes delay is a means to an end, but if you know you are going to lose eventually, delay becomes an end unto itself. This is well known:
    Horizon effect.
    Maybe the horse will sing.
    — etc.

    Q: Isn’t it improper to file frivolous dilatory motions that don’t mean what they say?
    A: Sure it’s improper, but that doesn’t mean it’s not happening.

    2) No less importantly, he is playing for PR talking points. There is a big world outside the courtroom. Arguments that would never work in court work just fine on Pox News.

    • Yohei72 says:

      Well said. 2) might be even more important to him, though that’s speculation. Whipping up the rage of the MAGA base has often paid off for Trump; it’s Plan A in most cases.

      But a related point: given the ignorance of most average people about legal matters, it’s conceivable Trump could even convince some portion of the uncommitted sliver of voters in the middle that he has been mistreated in this case by Biden & “the Dem machine” (or whatever). Which can pay off down the road, in a world where elections are as narrow as they often are now.

      Also the singing horse story is delightful.

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