Government Asks Raymond Dearie to Recommend Judge Cannon Lift Injunction on 2,794 Documents

The global issues briefs from DOJ and Trump in the Special Master proceeding have been unsealed (DOJ, Trump).

The focus of both filings address what DOJ calls Trump’s gamesmanship but which is basically the kind of Calvinball that Judge Aileen Cannon appears to love. For many, if not most, of the 2,916 documents at issue, Trump’s argument appears to be:

  • If valuable then Tom Fitton (meaning, the misapplied argument that the President can designate anything “personal” and therefore effectively take possession of Presidential Records merely by sticking it in a box)
  • If not Tom Fitton, then Executive Privilege (meaning, if Raymond Dearie is not impressed by misapplied Tom Fitton logic, then he should allow Trump to withhold documents under a privilege claim)

DOJ provides a lot of reasons that’s nonsense, including that if Trump thinks something is personal then it obviously can’t be privileged.

A key part of the argument, however, is that even if Trump were able to invoke Executive Privilege against the government, DOJ would overcome that here because of the criminal investigation.

Plaintiff’s assertions of executive privilege fail under United States v. Nixon, because the government has a “demonstrated, specific need” for the seized records in its ongoing criminal investigation. 4

4 Because the government satisfies United States v. Nixon’s “demonstrated, specific need” test, which applies to a sitting President, the Court need not consider Plaintiff’s status as a former President for purposes of this analysis. [citations omitted]

Trump dodges addressing the Nixon standard by complaining that he hasn’t seen the unsealed affidavit that authorized the search, and so the government has failed to reach the Nixon standard.

Although crucial to the executive branch’s decision-making processes, executive privilege is neither absolute nor unqualified. Nixon, 418 U.S. at 706. Rather, the Supreme Court has recognized that the privilege must “yield to the demonstrated, specific needs for evidence in a pending criminal trial.” Id. at 713. In providing this standard, the Supreme Court clarified that in order to overcome an assertion of executive privilege, the party seeking the privileged material must “clear three hurdles: (1) relevancy; (2) admissibility; and (3) specificity.” Nixon, 418 U.S. at 700. The Supreme Court again affirmed this standard in Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 386 (2004).

Currently, the affidavit in support of the search warrant which authorized the search of Mar-a-Lago is under seal, and, therefore, inaccessible to Plaintiff. Plaintiff is therefore unaware of the specific arguments relied upon by the Magistrate in issuing the warrant authorizing seizure of the documents at issue. Given that, Plaintiff must take the position that the Government has failed to clear the three hurdles articulated by the Court in Nixon.

In other words, in a civil challenge to a lawful warrant, Trump is saying he should be able to retain stuff by default until he has seen the warrant against him.

Which is one reason why something else the government does is so interesting. It asks Dearie to recommend that Judge Cannon lift the injunction on all the documents — 2,794 out of 2,916 — over which Trump has not invoked either Executive and/or Attorney-Client privilege.

Finally, as the government has noted previously, the categorization of the records at issue as Presidential or personal does not ultimately affect the government’s ability to use and review them for criminal investigative purposes. See D.E. 150 at 4 n.*. Plaintiff has asserted attorney-client privilege only as to one document out of 2,916 documents at issue here, and Plaintiff has asserted executive privilege as to only 121 documents. As to the remaining 2,794 documents, Plaintiff does not assert any privilege that would bar the government’s further review and use of these materials for purposes of the ongoing criminal investigation. Although Plaintiff and the government disagree as to the proper categorization of numerous records as “personal” or “Presidential” for the purposes of PRA, neither categorization would supply a basis to restrict the government’s review and use of those records. Indeed, personal records that are not Presidential records or government property are seized every day for use in criminal investigations. Thus, absent any specific justification from Plaintiff for continuing to restrict the government’s review and use of the 2,794 records for which Plaintiff has not asserted any privilege, there is no reason to maintain the Court’s injunction as those those records.

This takes Judge Cannon’s premise on its face, as if this is just a normal Special Master review to ensure that the government doesn’t access any privileged documents for an investigation. If that were the case, she would easily approve the sharing of all documents over which the plaintiff had not made any privilege claim.

It may or may not work. But if Dearie were to act on this request immediately, then Cannon would either have to override it or grant it before the 11th Circuit makes its final decision on the appeal. Judge Cannon’s intervention is inappropriate on its face. But if she refuses to release non-privileged documents to the government, it will become clear that she is doing nothing more than attempting to thwart the criminal investigation of Trump.

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54 replies
  1. P J Evans says:

    Now we get to find out if Cannon understands the hole she’s dug for herself by backing the former guy’s wilder claims.

    • joel fisher says:

      Hole schmole. Either she’s a DC judge forever or she’s on the short list for SCOTUS.
      How is that a hole?

  2. Rugger_9 says:

    It’s calling the bluff and forcing the defining action in this case by Judge Cannon. It also works on Individual-1’s claims, and should be applied to the execrable OLC opinions.
    Force these minions to justify their interventions with legal arguments.

  3. Peterr says:

    Shorter Trump: Executive Privilege is absolute and unqualified when *I* exercise it, but limited and qualified when *they* exercise it.

    Good luck with that.

    • Rugger_9 says:

      Apparently the latest from his legal team is making the claim that taking the documents to M-a-L by definition rendered them as ‘personal’ not government records.

      While advocacy is expected, frivolity is not so let’s hope this door gets slammed shut in short order.

      • Raven Eye says:

        That argument didn’t work when I “borrowed” my big brother’s boy scout knife and stashed it in my sock drawer.

      • Scott_in_MI says:

        It continues to astonish me (as it probably should not, at this point) how blithely the Triump team just ignores the fact that there are *definitions* of what constitutes “personal documents” and “presidential records” in the PRA, and that *maybe* these should be controlling, since Congress went to the trouble of specifying them.

        • LizzyMom says:

          Trump was taught by his daddy that rules are for schmucks and losers. It’s his defining philosophy. And he actively looks for minions who buy that philosophy. Sadly, there are way too many of them.

          • LesNoyes says:

            True fact. Legislators and the media should take that into account, every day. Too many people just don’t give a dang for what the law says, and they should be smacked good for that.

      • Stephen Calhoun says:

        What’s the history of this specific singular claim about changing the designation of documents going back to January 2021?

        Is this a case of “Oh, and I just happened to remember what TFG actually did back in the WH?”

        IANAL, still, I also wonder how the heck one could mount a defense to support the claim to possessing extraordinary powers of designation, outside of simply asserting as much; expert witnesses, etc.?

  4. Cosmo Le Cat says:

    The DOJ’s brief argues that even under Trump’s incorrect reading of both the PRA and the decision in the Judicial Watch case, Trump “would need to supply specific evidence that he categorized the records in question as his ‘personal’ records while he was still President.” Trump’s brief counters that the evidence of his designation is the indisputable fact that the documents were at Mar-a-Lago. In other words, if Trump took them, that’s proof he designated them as personal.

    By the same logic, if Trump took classified documents, they are “mine.” The mere presence of classified documents at Mar-A-Lago is evidence that he declassified and designated them as personal property. Logically, if declassified documents are his personal property, he has the right to keep them in an insecure storage room or his desk drawer. Should he choose to do so, he can show, sell or “favor” them to his dictator friends and benefactors.

    Trump is a stable genius.

  5. earlofhuntingdon says:

    Trump’s brief to Dearie – submitted by Halligan, Trusty, Kise, and Corcoran – seems to be dancing with a Rule 11 violation. It ignores or misrepresents basic definitional and process issues related to the PRA, and essentially argues that because the President took records, they must be personal not presidential.

    Trump’s lawyers do not appear, however, to offer any affidavit of fact in support of their conclusions. They do not claim Trump took any specific action on a given date, to deem these records personal. They seem to argue that the mere act of taking them makes them personal, not presidential records, as if that were the only possible explanation for all these records.

    They rely heavily on a Clinton-era case, in which Clinton recorded on tape personal reminiscences about his presidency, and considered them personal rather than presidential records. Clinton prevailed. Trump, however, took items he did not create, including highly classified documents, and deemed them his because he wanted them. That’s not the same circumstance. And that’s the best “reasoning” I can find in this crap brief from Halligan, et al.

    • earlofhuntingdon says:

      Halligan, et al., ignored this portion of the PRA (44 USC 2201 (3)), which defines as personal records those that are:

      of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.

      That’s a severe limitation on what Halligan claims is the president’s unlimited power to define a record as “personal.”

      Section 3(A) is also the statutory basis for the decision in the Clinton tapes case being deemed personal:

      “(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;”

      • HikaakiH says:

        Furthering the Trumpian logic – If Trump has purely private/non-public thoughts about how to profit from assisting the Saudis in their development of a nuclear industry, a bunch of classified documents start to look just like his own personal thoughts and Trump isn’t using that information for any official Presidential duties, so it must be personal to him.
        Of course this is garbage, but there was some self-serving calculus involved in the selection of classified documents to exfiltrate from official storage to Mar-a-Yard-underwater-in-fifty-years.

    • earlofhuntingdon says:

      Section 2204(e) gives the DC district court exclusive jurisdiction only over actions filed by the President against the Archivist, in which he disagrees with a determination made by the Archivist.

      Trump is not here protesting a determination by the Archivist. Rather, he is using an improperly filed civil action to fight a properly obtained and executed search warrant, pursuant to a federal criminal investigation.

      To the extent this action involves Trump’s constitutional claims against disclosure of his presidential records, that would be an action against the Archivist, which the PRA requires be filed in DC. Trump has chosen not to pursue any such collateral action directly, but hopes to achieve the same result through this improperly filed civil action in Florida.

      On the other hand, the DoJ’s brief is pithy, persuasive, and fully discusses its citations in a way that Halligan, et al., carefully avoid doing.

    • Marji Campbell says:

      Ha! You beat me, I was just going to post that. I’m not understanding who planted it and why….

      • GeeSizzle says:

        Even if we don’t know who planted it, we could have guessed who would have got the EXCLUSIVE headline for one of the papers of record. And sure enough, it’s Josh Dawsey, the water carrier extraordinaire of the WP. (Shaking tiny fist of fury.) Infuriating.

    • Terry Sald says:

      I saw that story too. I am worried that it is a prelude to letting Trump off the hook because he “didn’t mean anything bad.” But, that’s not how it works with classified top-secret documents, right? Please tell me that’s right!

      • Willis Warren says:

        I doubt it. My guess is this is just a smokescreen for the Iran stuff. I suppose there’s a chance it includes docs about his killing what’s his name, but not sure how nukes get in there. Trump may be trying to shift focus away from the nukes and onto the assassination.

        • HikaakiH says:

          Why? Because the assassination of Soleimani was clearly against international law, but such things never redound against US Presidents other than to limit their holiday travels? Perhaps less damaging to relationships with allies if it can be chalked up to a known narcissistic ego problem than a truly disturbing commercial intent?
          Is it the case that this distinction of intent lessens the nature of punishments for the stolen documents? In which case, who leaked this and why now?

    • kpavlovic says:

      Barrett and Dawsey source this story to “people familiar with the matter.” Probably Patel. I can’t think of any reason why DOJ would want to pass this baloney.

      • John Paul Jones says:

        It might be Patel (or his lawyer) but Barrett has used pro-Trump FBI sources in the past, and his is the lead name on the piece. “Familiarity” might only mean just those sorts of chatty MAGA-loving agents. Dawsey would then phone his Trump sources to ask pointed/leading questions (“What do you think about motive?”) and voila, le story est complet.

      • tje.esq@23 says:

        I just assumed
        – the source was DNI folks based on prelim findings from their Nat’l Security damage assessment, and
        – the purpose of story was to reassure allies that ‘…everything is good here. He’s just an ego maniac — he didn’t have a nefarious plan to harm you;’ and
        – the timing of story was due to midterms being completed, because releasing prior to midterms could potentially be seen as politically motivated.
        I inferred this from the authors having to justify why *prosecutors* would want to understand motive, and therefore could have been their info source. To me, justifying why a certain group could potentially be your source is akin to saying, “We didn’t get the info from prosecutors.” And the reason the story would even refer to them is because of the journalism ethos that requires reporters to address everything that is top of mind for readers, in the space you have available. In this matter, readers thinking goes immediately to criminal case, not DNI review.

        Am I missing something here? My inferences aren’t the best.

    • Cosmo Le Cat says:

      I agree with the above assessments of the article. And it worked, as Nicole Wallace displayed the newspaper headline on her MSNBC show. North Korean love letters and a French president’s sexcapades may be trophies, but a foreign country’s nuclear arsenal and human sources are certainly not.

      Josh Dawsey is the Haberman of the WashPost.

    • earlofhuntingdon says:

      Easy play for Trump propagandist, to say that ego not money is prime motivator. Frames the issue as, “Standard Trump, no need to worry.” More accurate and damaging all round would be, “Where and how much damage has he done and continues to do to national security, etc.?”

      For starters, has Trump ever distinguished money from his ego, or does one always define the other?

      Then there are all the other reasons Trump might have. Continuing leverage over an assortment of actors who might be threats to him. The ability to threaten or exact punishment. To maintain the illusion he’s still clued in and in charge (more than ego, I think). Voyeurism. The list could be quite long without being mutually exclusive.

      • Ginevra diBenci says:

        In fact, Trump has said under oath that his net worth varies according to how he feels. Since he only cares about himself, I infer that these feelings are ego-driven. Therefore, he himself has established a direct equivalence between ego and money.

        • earlofhuntingdon says:

          Which means to me that ego and money are proportional and interchangeable for him, not alternatives. When he has one, he has the other. When he’s shy of one, he needs more of the other to repair the gap.

    • Operandi says:

      Yep, one look at the byline gives away the game.

      As Marcy has pointed out in a series of posts about previous counter-espionage cases, motive counts for very little, given that serious national security harm has arisen from benign motives like wanting to work from home.

  6. kpavlovic says:

    Barrett and Dawsey source this story to “people familiar with the matter.” Probably Patel. I can’t think of any reason why DOJ would want to pass this baloney.

  7. Rugger_9 says:

    OT, but relevant in a motivational sense: the NYT is reporting that CoS Kelly was getting pressured to open IRS investigations of Individual-1’s enemies list. Heck, Tricky Dick did the same thing, but Individual-1 and the RWNM spent all of that time going off on the IRS investigations (which were legit, btw) on RW ‘charities’ when Obama was President. It’s always about projection even if we had to wait a bit before it came out. For a Marine, Gen Kelly sure seems to have a warped sense of who he was supposed to serve.

      • LesNoyes says:

        Whispered aside: You a member of the (Toronto) Tranzac (Club)? (Which had no Australians or New Zealanders in it, nor anyone who had ever BEEN to Australia or New Zealand when I knew it.)

    • oldoilfieldhand says:

      This is the same “My General” Kelly, Chief of Staff to the only twice-impeached former president. A COS who disgraced his military and post-military service to the USA by lying publicly in remarks about Florida Democratic Representative Fredrica Wilson. When confronted with the irrefutable, video evidence of his blatant, racist tirade; Kelly, a typical Boston republican (racist) with a previously honorable record of military service, doubled down and lied again. He and Trump appear to have a similar regard for the truth.

  8. Arteberry says:

    Kash Patel has claimed publicly—though who knows what he said in the grand jury—that Trump took (and supposedly declassified) documents so that Trump could soon reveal important facts to the American public.

    Obviously Trump is not going to testify at his own trial. His defense will argue the government has no evidence Trump had a pecuniary motive, and perhaps the government will not contest that. We’ll see. But I have thought it interesting from the start that if Trump legitimately (inset laugh track here) declassified and retained secret materials, why are we waiting for his big reveal of those materials? Was he going to deliver the news on our spies in China to us (the under-informed American public) sometime during the 2028 Olympics in Los Angeles?

    So, at trial the Trump team is going to want to suggest some other innocent reason behind Trump’s thievery (or, as Trump would prefer, recategorization) but the team is not going to have any evidence to offer. Patel will, at best, be useless. And although Trump’s motive—ego or anything else—is decidedly not an element of any of the crimes likely to be charged, the jury will nevertheless wonder about motive. And if the Trump team doesn’t have a coherent story to present then that just increases the prospects for conviction.

    • P J Evans says:

      If he “legitimately” declassified those docs, there should be supporting evidence at the agencies that classified them in the first place. Handwaving or doing it by thinking isn’t going to fly in court.

    • earlofhuntingdon says:

      What Patel testifies to under oath is relevant. His statements to a gullible press, not so much. If Patel’s testimony was to a grand jury, then before trial, only he could tell us what he said. But he’s not a reliable source.

      If the documents are presidential and/or federal records, Trump’s motives aren’t especially important. He will have violated criminal statutes by taking, possessing, and/or using them with no right to do so and without having complied with requirements for the handling of those documents that were classified.

      The “big reveal” is the DoJ obtaining the unqualified right to present the records or portions of them to a grand jury in order to obtain indictment(s).

    • Arteberry says:

      All valid points, which I and tons of other people here have referenced before. The oddity being brought up this time is that Patel’s cover story doesn’t make sense even if you accept his declassification nonsense. So, again, what even marginally helpful cover story can Team Trump support with any testimony or other evidence?

  9. JonathanW says:

    In reading the government brief (thanks for the links) it also appears (and maybe I missed coverage of this on this site) that DOJ is asking the special master to again require an affidavit validating the inventory from the Plaintiff. This was one of the requirements that I recall Dr Wheeler discussing as potentially tying Trump’s hands and forcing him to validate that the was in possession of the documents.

    I’d be curious to know what the legal minds here think about two questions related to this:

    1. Do we think Judge Dearie will do this AND not be overruled again by Judge Cannon?

    2. Trump has been submitting claims about privilege and personal items. Does this imply that he is tacitly acknowledging that the documents were indeed seized from there DOJ says they got them? I.e. has his participation in the special master process made him tacitly admit that he possessed NDI?

    My apologies if this question was covered elsewhere!

  10. Cosmo Le Cat says:

    Trump’s sole defense is to claim everything taken to MAL was declassified and categorized as personal records. Thus anything found at his properties are “mine” from his standpoint – nothing stolen.

    Trump’s problem is he obstructed justice. The subpoena demanded all documents with classified markings, so it doesn’t matter whether he declassified or designated documents as personal. Privileges are irrelevant. Trump personally instructed someone to move documents after the subpoena. A perjurious/obstructive affidavit was submitted. A search warrant recovered docs with classified markings from his personal desk and leather box.

  11. Cosmo Le Cat says:

    I was remiss not to mention the other problem with Trump’s position. As Marcy explained in her excellent article “The Full-Fitton: Trump’s Funny Math with the Federal Records Act” from 2022 Sept 12, not all records fall into one of two categories: either presidential or personal. For obvious reasons, Trump’s attorneys would like to ignore the FRA.

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