Judge Raymond Dearie Prepares to Consult with the Archives

In his last act before today’s election, Special Master Raymond Dearie issued the following order:

I’ve added the new dates to the timeline below.

The December 1 status conference, which has attracted the most attention, is scheduled for such time as Dearie will have had a chance to review the two sides’ disputes. More importantly, it comes after the 11th Circuit will have this issue fully briefed — and could well have decided to stop the entire process. It will also come after most results of the election will have been decided. It will be public, so Trump will have to make his bid to claw back all the documents he stole before the press.

The notice that he will consult NARA is a bit more interesting. As Dearie notes, this was specifically permitted in Judge Aileen Cannon’s order of appointment. At the first status hearing, Dearie said he would alert Trump before making such consultation. This order serves primarily to tell Trump that this is his chance — while his team is writing their 11th Circuit response and drawing up their general document — to weigh in. But nothing will prevent Dearie from making this consultation.

Dearie knows a good deal about what NARA will say, because the Presidential Records Act is clear. Any document Trump saw as President is a Presidential record. Most of Trump’s claims so far are without merit, even ignoring that the documents were seized with a valid warrant and have evidentiary value.

But the order will ensure that Trump makes a three-page argument about how he is above the PRA. And it’ll provide another authority on which Dearie can rely to rule that Trump cannot convert government documents to his personal property by the mere act of stealing them.

Update: Tweaked timeline.


October 13: DOJ provides materials to Trump

By October 14: DOJ provides notice of completion that Trump has received all seized documents

On or before October 14: DOJ revised deadline to 11th Circuit

October 18: Phone Special Master conference

October 20: Deadline for disputes about Executive Privilege and Presidential Records Act on filtered material

October 24: Date Trump unilaterally declares his deadline to comply with Dearie’s order

October 25: Trump rethinks and submits his version of disputes

October 26: Both sides agree to brief general issues; Dearie resolves the remaining privilege issues and accepts briefing dates

November 2 (21 days after notice of completion): Trump provides designations for all materials to DOJ

November 7: Dearie reveals he will consult with NARA

November 8: Election Day; Principal briefs due to Dearie

November 10, 2022: Trump revised deadline to 11th Circuit; deadline to complain about consultation with NARA

November 12 (10 days after November 2): Both sides provide disputes to Dearie; response briefs to Dearie

November 17: DOJ revised reply to 11th Circuit

December 1: Status conference

December 16: Dearie provides recommendations to Cannon

24 replies
  1. Rugger_9 says:

    While I have absolute faith in Individual-1’s ability to belch out some arguments to fling on the wall, your point that he’s running out of legally viable options is also valid. I see that the responses were due from his camp on 02 NOV, did they get filed? I probably missed it if they did.

    If they were, does Judge Cannon have the ability to parachute in at this point to protect release of embarrassing information or does the referral to the 11th Circuit tie her hands? If not, does the federal system have the rule like CA’s where failure to oppose a motion means agreeing to it? That would mean we see the release.

      • bmaz says:

        Maybe. But as the case, even the Special Master portion thereof, still runs through the court, any such document “should” be docketed.

        • Nick Barnes says:

          Certainly, but I think we’ve already seen some instances of team Trump not playing by those rules. I think if they’ve simply not submitted anything then we’d have seen some fallout from that (e.g. a docketed letter from the Government lawyers noting the lack of a Trump submission and asking Dearie to sanction, or just an order from Dearie). So my guess is that they’ve submitted something, visible to both Dearie and the Government lawyers, but it hasn’t been docketed for some reason.

        • Rugger_9 says:

          The idea of a shadow docket in Dearie’s process is unlikely. Given how Cannon has already ruled on other matters and allowed essentially ex parte motions from Individual-1, her court is a more likely place for burying the submission. However, the question isn’t before Cannon but Dearie, and I don’t think even she would rule on an undocketed communication.

  2. jeco says:

    Whatever team trump (including Cannon) can do to delay the process will be done. Cannon changing the rules of the game during play will not be new.

    • bmaz says:

      Do you have any evidence Cannon is actually on “Team Trump” as some kind of co-conspirator as opposed to just being an extremely conservative judge? Had you even heard of Cannon before this case? People are getting awfully loose with these kind of allegations about federal judges.

      • Sloth Sloman says:

        There is the fact that she explicitly wrote that Trump is deserving of special consideration in the eyes of the law.

        • bmaz says:

          Yeah, no, that does not cut it. Such was a legal presumption Cannon applied, quite incorrectly, but is NOT evidence she is conspiring with Trump. Ultra conservative judges make batshit rulings all the time, b ut that does not mean they are conspiring with Trump personally.

        • bmaz says:

          And Texas District judges in the Southern District, Western District and occasionally the Northern District.

      • oldoilfieldhand says:

        In “Rule of Law” land, Anton Scalia and J. Michael Lutig were publicly honored as lifelong “very conservative judges”. Alas, are we being introduced to a potentially new entry into judicial activism, the “extremely conservative judge” (currently in the person of Judge Aileen Cannon), appointed as a last gasp “conservative” paean to judicial probity? Federalists Unite!
        If they ever existed, anywhere except in campaign speeches, compassionate, conservative Republicans have apparently gone the way of the DoDo Bird.
        It seems “extreme conservatism”, (racist, cruel, ad hominen attack conservatism, buoyed by MAGA culture warriors dutifully attacking other Americans who are different, promoting only white supremacy and transferring income to wealthy oligarchs) is the future of the GOP.

        Time for term limits on all federal judges? If we can’t prevent corruption of the federal bench by legisltive appointment of partisan hacks, should we at least have the opportunity to sunset their ability to damage to the “Rule of Law”?

        • bmaz says:

          That is a little thick for a judge you had never heard of before the one case you base it all on. I can guarantee there are worse judges out there than cannon. There will never be term limits for federal judges as that would take a Constitutional amendment, and hard to imagine there being another one of those anytime soon, maybe for many decades, at best.

      • trnc2022 says:

        Granting relief that a defendant didn’t ask for doesn’t seem very conservative.

        ETA: Sorry, plaintiff.

  3. Badger Robert says:

    I am following along quietly and planning on catching up with Ms. Wheeler on Mastadon after I purchase a new laptop.
    Judge Dearie appears to be eliminating procedural issues that could be raised on appeal.

  4. Amicus says:

    A clever judge. As far as I can tell upon brief review, NARA does not have independent litigating authority, it’s represented in the courts by DOJ. And Judge Dearie isn’t going to develop a new factual record. Instead, he sees the resolution of these issues as being informed potentially by the expertise of the agency: NARA’s practices and guidance. Think of this in Chevron-like terms, there is law, but there is law with ambiguities and in those instances the judiciary looks to the agency for guidance. And against that expertise, team Trump has what – a bag of air?

    • Peterr says:

      In a very basic way, NARA’s definitions of what constitutes a Presidential Record are kind of important here. They are the baseline for making the decisions that Dearie is being asked to make. If Trump wants to argue that those definitions are improper, he is free to do so. But that starts by looking at how NARA is interpreting and implementing the Presidential Records Act.

      Simply asking NARA for their working procedures and documentation on this is about as ordinary thing as could be.

  5. harpie says:

    In his last act before today’s election, Special Master Raymond Dearie issued the following order

    6:30 PM Zoe Tillman logs the Dearie order in.
    10:08 PM TRUMP [at Ohio election rally]:

    I’m going to be making a very big announcement on Tuesday, November 15 at Mar-a-Lago in Palm Beach, Florida”

    6:30 PM · Nov 7, 2022
    10:03 PM · Nov 7, 2022

  6. Alan Charbonneau says:

    I’m not sure if this is a typo or if I am not understanding something. Your timeline says Nov 2nd is 21 days after notice of completion and Nov 12th is 10 days after notice of completion.

    Shouldn’t Nov 12th be 31 days after notice of completion, or are you referring to another deadline?

  7. Commentmonger says:

    This is why I like this site. Telling what obtuse legal matters actually mean in plain English. Which made me realize that I need to subscribe (I just did), because the next year is going to be exciting/frustrating.

    >>> Trump cannot convert government documents to his personal property by the mere act of stealing them

  8. cmarlowe says:

    So if I understand things right, and I may not, the pending Dearie related timeline is possibly separate from any action DOJ may take with respect to class docs/NDI/espionage act, yes?

    • earlofhuntingdon says:

      Two separate tracks. The DoJ, for example, asked the 11th Cir. to do away with the case before Cannon, which includes Dearie, for lack of jurisdiction.

Comments are closed.