How Richard Barnett Could Delay Resourcing of the Trump Investigation

In the rush to have something to say about what Special Counsel Jack Smith will do going forward, the chattering class has glommed onto this letter, signed by US Attorney for Southern Florida Juan Gonzalez under Jack Smith’s name, responding to a letter Jim Trusty sent to the 11th Circuit a day earlier. Trusty had claimed that the Special Master appointed to review the contents of Rudy Giuliani’s phones was a precedent for an instance where a judge used equitable jurisdiction to enjoin an investigation pending review by a Special Master.

The question raised was whether a court has previously asserted equitable jurisdiction to enjoin the government from using seized materials in an investigation pending review by a special master. The answer is yes. The United States agreed to this approach – and the existence of jurisdiction – in In the Matter of Search Warrants Executed on April 28, 2021, No. 21-MC-425-JPO (S.D.N.Y.) (involving property seized from Hon. Rudolph W. Giuliani) – and, under mutual agreement of the parties, no materials were utilized in the investigation until the special master process was completed. 1 See, e.g., Exhibit A. The process worked. On November 14, 2022, the United States filed a letter brief notifying the District Court that criminal charges were not forthcoming and requested the termination of the appointment of the special master. See Exhibit B. On November 16, 2022, the matter was closed. See Exhibit C.

As the government noted, none of what Trusty claimed was true: the government itself had sought a Special Master in Rudy’s case and Judge Paul Oetken had long been assigned the criminal case.

That is incorrect. As plaintiff recognizes, the court did not “enjoin the government,” id.; instead, the government itself volunteered that approach. Moreover, the records there were seized from an attorney’s office, the review was conducted on a rolling basis, and the case did not involve a separate civil proceeding invoking a district court’s anomalous jurisdiction. Cf. In the Matter of Search Warrants Executed on April 9, 2018, No. 18-mj-3161 (S.D.N.Y.) (involving similar circumstances). None of those is true here.

The government could have gone further than it did. The big difference between the Special Master appointed for Rudy and this one is that Aileen Cannon interfered in an ongoing investigation even though there was no cause shown even for a Special Master review, and indeed all the things that would normally be covered by such a review (the attorney-client privileged documents) were handled in the way the government was planning to handle them in the first place.

Josh Gerstein had first pointed to the letter to note that both Gonzalez, the US Attorney, and Smith, the Special Counsel, had submitted a document on Thanksgiving. The claim made by others that this letter showed particular toughness — or that that toughness was a sign of Smith’s approach — was pure silliness. DOJ has been debunking false claims made about the Special Master reviews of Trump’s lawyers since August. That they continue to do so is a continuation of what has gone before, not any new direction from Smith. Indeed, the most interesting thing about the letter, in my opinion, is that a US Attorney signed a letter under the authority of a Special Counsel, the equivalent of a US Attorney in seniority. If anything, it’s a testament that DOJ has not yet decided where such a case would be prosecuted, which would leave the decision to Smith.

A more useful place to look for tea leaves for Jack Smith’s approach going forward is in Mary Dohrmann’s workload — and overnight decisions about it.

Thomas Windom is the prosecutor usually cited when tracking the multiple strands of investigation into Trump’s culpability for January 6. But at least since the John Eastman warrant in August, Dohrmann has also been overtly involved. She’s been involved even as she continued to work on a bunch of other cases.

With two other prosecutors, for example, she tried Michael Riley, the Capitol Police cop convicted on one count of obstructing the investigation into January 6. In addition to Jacob Hiles (the January 6 defendant tied to Riley’s case), she has prosecuted a range of other January 6 defendants, ranging in apparent levels of import:

She has also been involved in several non-January 6 prosecutions:

In other words, on the day Smith was appointed, Dorhman was prosecuting several January 6 defendants for trespassing, several for assault, and a cop convicted of obstructing the investigation, even as she was investigating the former President. Though she hasn’t been involved in any of the conspiracy cases, Dohrmann’s view of January 6 must look dramatically different than what you’ll see reported on cable news.

As laid out above, Dorhmann has been juggling cases since January 6; this is typical of the resource allocation that DOJ has had to do on virtually all January 6 cases. That makes it hard to tell when she started handing off cases to free up time for the Trump investigation. That said, there have been more signs she’s handing off cases — both the Vaughn Gordon and Sean McHugh cases — in the days since Smith was named.

But something that happened in the Richard Barnett case revealed how her reassignments on account of Smith’s appointment have been going day-to-day.

Back on November 21 — three days after Garland appointed Jack Smith — Richard Barnett’s attorneys filed a motion asking to delay his trial, currently scheduled for December 12. Their reasons were largely specious. They want to delay until after the DC Circuit decides whether to reverse Carl Nichols’ outlier decision that threw out obstruction charges in the context of January 6; even Nichols hasn’t allowed defendants awaiting that decision to entirely delay their prosecution. They also want to delay in hopes the conspiracy theories that the incoming Republican House majority will chase provide some basis to challenge Barnett’s prosecution.

On November 4, 2022, a Congressional report from members of the House Judiciary Committee released a one thousand page report based on whistleblowers documenting the politicization and anti-conservative bias in the FBI and the Department of Justice. This historic report will no doubt serve as a road map for probes of the agencies now that the Republicans have gained control of the House of Representatives. Included among the many allegations is the recent revelation that the FBI fabricated schemes to entrap American citizens as false flag operations for political purposes. This devastating report was compounded ten days later on November 14, 2022, by revelations that the FBI was involved in infiltrating other groups of January 6th defendants.

As a third reason, Barrnett’s team noted that one of his lawyers, Joseph McBride (who famously said he didn’t “give a shit about being wrong” when floating conspiracy theories about January 6) had to reschedule a medical procedure for the day of the pretrial conference.

Mr. Barnett’s attorney, Mr. Joseph McBride, was scheduled to have a necessary medical procedure on November 17, 2022, but due to unforeseen complication, the procedure could not be performed and must be rescheduled for December 9, 2022, the day of the pretrial conference and a few days before trial.

Per Barnett’s filing, the government objected to the delay.

Counsel for the Government stated that they will oppose this motion, however, they agreed to stay the deadline for Exhibits, due Monday November 21, 2022, until this motion is resolved. The Government also requested that a status conference be scheduled for that purpose.

According to the government response, Barnett’s attorneys first requested this delay on November 17, the day before Smith was appointed. That’s the day Barnett’s team asked the government whether they objected to a delay.

The government has diligently been preparing for trial. Under the Court’s Amended Pretrial Order, the parties were due to exchange exhibit lists on November 21, 2022. ECF No. 63. On November 17, 2022, however, defense counsel Gross contacted the government to state that the defense again wanted to continue the trial. Defense counsel also indicated that the defense was not prepared to exchange exhibit lists on November 21.

By the time the government filed their response on November 22, four days after Smiths’ appointment, DOJ had changed its mind. DOJ still thinks Barnett’s reasons for delay are bullshit (and they are). But the government cited an imminent change in the prosecution team and suggested a trial a month or so out.

As reflected in the Defendant’s motion, the government initially opposed the Defendant’s request for a continuance. Def.’s Mot. at 1. As discussed below, the government maintains that certain of the Defendant’s proffered reasons do not support a continuance of the trial. Nevertheless, the government has considered all the attendant circumstances and no longer opposes the motion. Accordingly, for the reasons set forth below, the government submits that the Defendant’s motion should be granted without a hearing, the trial date vacated, and a status hearing set to discuss new trial dates.


Finally, the government notes that while it is diligently preparing for trial, an imminent change in government counsel is anticipated. Thus, given the government’s strong interest in ensuring continuity in its trial team, coupled with the defendant’s lack of readiness, the government, in good faith, will not oppose the defendant’s continuance. Under such unique time constraints, the government therefore requests that the Court vacate the trial date, without need for a hearing, and set a new trial date and extend the remaining pretrial deadlines by 30 to 45 days. [my emphasis]

The judge in the case, Christopher Cooper, ruled on Wednesday that he will only delay the trial if both sides can fit in his schedule. In his order, he mostly trashed the defense excuses. But he noted that the government, too, should have planned prosecutorial changes accordingly.

The Court will reserve judgment on the Defendant’s 88 Motion to Continue the December 12, 2022 trial date pending receipt of a joint notice, to be filed by November 28, 2022, indicating specific dates on which the parties would be available for trial following a brief continuance. If the parties cannot offer a date that also conforms with the Court’s schedule, the Court will deny the motion and proceed with the scheduled trial. The Court finds that none of the reasons advanced in the Defendant’s motion are grounds for a continuance. This case was charged nearly two years ago, one trial date has already been vacated at the defense’s request, and the present date was set over four months ago. Defense counsel, which now number at least three, have had more than ample time to prepare for trial. The defense has not identified any material evidence that it is lacking, either from the government’s voluminous production of both case-specific and global discovery, or from other public sources. Nor is the pendency of the appeal in U.S. v. Miller an impediment to trial. This and other courts have proceeded with numerous January 6th trials involving the charge at issue in Miller. If the Circuit decides the issue in the defense’s favor, then Mr. Barnett will receive the benefit of that ruling. There is no good reason to halt the trial in the meantime. As for any anticipated change in government trial counsel, the government has been aware of the current trial date for months and should have planned accordingly. That said, the Court would be willing to exercise its discretion and grant a brief continuance should a mutually agreeable date be available. The Court notes, however, that it has a busy docket of both January 6th cases and other matters and therefore may not be able to accommodate the parties’ request. [my emphasis]

Unless and until Dorhmann spins off all her other cases, it won’t be clear whether a change in Barnett’s case indicated she expected to focus more time on Trump or that DOJ wanted to create single reporting lines through Smith (or even whether the change in prosecutorial team involved one of several other prosecutors assigned to the case).

Lisa Monaco has been micro-managing the approach to January 6 from the moment she was confirmed in April 2021. Sure, it’s certainly possible that DOJ didn’t make the final decision on whether to appoint a Special Counsel, and if so, whom, until after Trump announced he was running or until after the GOP won the House. Maybe they delayed any resource discussions until after finalizing a pick.

But depending on the reasons why DOJ changed its mind on Barnett’s case, it’s possible that his still-scheduled December 12 trial could delay the time until Smith has his team in place, by several weeks. It’s also possible DOJ will just go to trial, a high profile one that poses some evidentiary complexities, with the two other prosecutors.

As I’ve suggested above, managing the workload created by the January 6 attack has been unbelievably complex, with rolling reassignments among virtually all prosecution teams from the start. Dohrmann’s caseload is of interest only because the mix of cases she has carried range from trespassers to the former President.

But at this moment, as Smith decides how he’ll staff the investigation he is now overseeing, that caseload may create some avoidable complexities and potentially even a short delay, one that could have been avoided.

Update: In a filing not signed by Mary Dohrmann, the two sides offered January 9 as a possible trial date.

25 replies
  1. Former fed says:

    It’s typical for any DOJ entity filing a pleading in a district to have the name of the local US Attorney also on the pleadings. That the Special Counsel’s office had the US Attorney’s name on the filing likely doesn’t have any other significance.

    • emptywheel says:

      Had you clicked through before you commented you would have seen that that’s not what is going on here. Smith is in the position of the US Attorney, Gonzalez, with full title, is listed as the signer.

      • Former Fed says:

        I’ve seen that before when cases are run by DOJ in DC, and the local US Attorney is involved in a pending proceeding.

        It can be for convenience, or can be a way of emphasizing to a judge that we locals believe, it too.

  2. amicus says:

    DOJ could have been much tougher but decided not to waste words on a procedural objection, or to point out the fact that the September 5 Order reads Trump’s proffered authority to stand for a very different point than Trump’s reading of it in his 28(j) Letter.

    Federal Rule of Appellate Procedure 28(j) provides that “[i]f pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations.” It is difficult to imagine how Trump’s newly cited authority could have first come to his attention after his brief to the 11th Circuit was filed because that authority appears in Judge Cannon’s September 5 Order, the very order at issue before the court of appeals.

    The September 5 Order at 5 n.8 cites “In the Matter of Search Warrants Executed on April 28, 2021, No. 21-00425-MC-JPO, ECF No. 1 (S.D.N.Y. May 4, 2021),” and describes that case as “the government initiating a new action by requesting that the Court, pursuant to its supervisory authority, appoint a special master to conduct filter review of materials potentially subject to attorney-client privilege and/or executive privilege).” Fundamentally at odds with Trump’s depiction of that case as predicated upon the court’s exercise of its equitable jurisdiction, Judge Cannon identifies it as support for the “Court’s inherent supervisory authority.” September 5 Order, at 5 n.8.

    As the different words suggest, “supervisory authority,” is fundamentally different than “equitable jurisdiction.” Supervisory authority is the authority a court enjoys incident to a matter that is already properly before it. Equitable jurisdiction is the authority to entertain a wholly new matter.

    So even beyond the impropriety of Trump citing In the Matter of Search Warrants Executed on April 28, 2021 as newly discovered authority in his 28(j) Letter, the September 5 Order can be read to reject Trump’s reading of that authority.

  3. nedu says:

    Judge Pryor repeatedly asked a question — directed to both the government and the plaintiff. Twice each. But maybe that’s not the question plaintiff is responding to in their letter noticing supplemental authority? I’m perceiving a discrepancy between the questions.

    From the audio (.mp3) of the Nov 22 hearing in 11th Cir case 22-13005:

    [1:58 Judge Pryor:] Is there any precedent for exercising equitable jurisdiction in a pre-indictment scenario, where there’s no showing that the seizure itself was unlawful?

    [2:13 Mr Joshi:] We have been unable to find a case in which that has happened, your honor, and I don’t think plaintiff has identified one in his briefs either….

    [3:36 Judge Pryor:] My question was — has there ever been an exercise of this kind of jurisdiction where there’s no showing that the seizure itself was unlawful?

    [3:45 Mr Joshi:] Not to my knowledge. We’ve been unable to find a case. Plaintiff has not cited a case. And I think that’s pretty good indication that no such case exists…

    [14:00 Judge Pryor:] Tell me this — you heard my question for your adversary. Are you aware, can you cite me a single decision by a federal court, other than this one, where a federal court has exercised equitable jurisdiction in a pre-indictment scenario, reviewing a seizure where there’s no showing that the seizure itself was unlawful?

    [14:33 Mr Trusty:] Your honor, not in the context of an immediate, fully-formed motion that indicates that in fact we know this to be an unconstitutional seizure. I agree with the court’s premise, that there’s not case-law….

    [30:01 Judge Pryor: ] …which is why I was asking — are you aware of any authority where it’s ever exercised, where there’s not, at least, an initial showing that the seizure itself was unlawful?

    [30:14 Mr Trusty:] My answer to that, your honor, is simply — this is an extraordinary case, to start with….

      • nedu says:

        Whether Judge Pryor was making a point or just asking one single, simple question, he repeated it four times. In substance, all four queries are the exact same question.

        Plaintiff’s notice of supplemental authority, blockquoted in the article up above, appears to respond to a slightly different question. Copying from that blockquote:

        The question raised was whether a court has previously asserted equitable jurisdiction to enjoin the government from using seized materials in an investigation pending review by a special master. The answer is…

        My own question, now –which didn’t totally surface for me until I’d already typed up the audio, and started to post– is whether plaintiff’s notice of supplemental authority responds to Judge Pryor’s question?

        Or is plaintiff instead answering some other question that may have been raised at the hearing?

        • bmaz says:

          The most popular one is It was too inundated when I tried to join, so I joined, which also is fairly popular. Rayne is on that too. If interested in being on Mastodon, mstdn is a good initial toehold and let you start getting used to the whole thing, and it DOES take some acclimation. You can always move to a different server later.

          • greenbird says:

            thank you, bmaz. i’m grateful for that information and will use it – once – before bed, to continue tomorrow, whether or not it was intended for me.
            it’s a gigantic place, that mastodon, but somehow seems stable and sturdy and grown-up.

        • Peterr says:

          It strikes me that Trusty is engaging in that time-honored practice embraced by doctoral students at their oral exams throughout the centuries. “That question reminds me of a question I’d rather answer instead . . .”

          Trusty does *not* want to answer Pryor’s actual question, because he knows it will tank his case completely. Better to try to deflect than admit he has no legal argument at all.

          • AgainBrain says:

            At what point would Trusty blatently misstating basic details or circumstances of cases he’s citing (not just nuances or interpretations) normally open him to possible sanctions? Would he (under other circumstances) already be in trouble, or would he need to do it repeatedly in arguments before that court to cross that line?

            Just wondered whether such significant misrepresentation of cited cases opens up potential for Rule 11 sanctions right away, or if it needs to happen repeatedly under normal circumstances?

          • new-radical says:

            Been away for a long time because I am an old white boomer and the old ideas of the possibility of age and wisdom have been forgotten in this age where one no longer needs to earn the right to an opinion but only to have a megaphone.
            I have offended some, I apologise.
            Peterr I have read your comments for so long and so like so many of the regular commentators on EW I think I know a little of you.
            And so I am surprised at this comment.
            Anti-intellectualism is a disgusting tool of the right.
            Of all the defences of a dissertation before the faculty I have never observed this. All doctoral students who avoid a pertinent question are hammered by the professors.
            Anyone who gets a doctoral degree has “earned the right” to an option, if some choose to abuse that right – well fuck them.
            But if they are genuine and have published, anyone can know their opinion and attack that, rather than a personal ad-hominem attack.
            We need to return to a world where experience and consequently age matters.
            Any fuckwit with a bank account can employ a smart kid with a maths degree to write an algorithm.
            Read a few books Elon you FW, bit of snark forbear who is deprived of a sense of humour.
            ps this may be my last post, love to harpy

            • Peterr says:

              It was not intended as anti-intellectual, but as an accurate description of what can happens in oral exams. Do all students do it? No. But it happens often enough that it has become a cliche.

              And yes, if they do so, they get called on it by the committee. A friendly committee will invite them to try again; a less-friendly committee hammers them hard.

              • GWPDA says:

                ‘What can happen[s]’ ? ‘…it happens often enough….’ ? In what field can this happen? In what field does it happen often enough? Perhaps I am too easily confused.

        • Michael says:

          I think what happened was basically this:

          Court: “Is there a previous case involving a Mallard duck”
          Trusty and Joshi, during hearing: “We aren’t aware of one, so most likely not.”

          Trusty supplental filing: “The question raised was whether there was a case involving a bird. The answer is yes. See the Rudy search warrant case.”

          Special counsel response: “The Rudy search warrant case did not involve a Mallard duck or even just another bird. As plaintiff is well aware, that case involved a giraffe.”

          It will not go down as a win for Trusty, whoobviously has no idea how to argue to an unsympathetic appellate court.

          [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Thanks. /~Rayne]

  4. Zinsky123 says:

    I know the primary intent of this thread is to discuss the change in reporting assignments at DOJ with Jack Smith’s appointment as special counsel, but I just wanted to make a comment specifically about Richard (Bigo) Barnett and his pending trial. I found this character (I refuse to refer to him as a gentleman) to be one of the more offensive and threatening of the Jan. 6 “normies”. His comments to the media and the fact he was carrying a stun wand and made specific, violent threats against Nancy Pelosi, should earn this creep the maximum sentences allowed under the sentencing guidelines for every crime he gets convicted on! During the interviews, this losers eyes were so bloodshot they were bleeding and his speech slurred, which suggests to me he was high/drunk/jazzed on injectable testosterone – who knows! In any case, this clearly impaired loser broke into the Speaker of the House’s personal office in a violent manner, while high, with the tools and intent to do her great bodily harm. I hope DOJ throws the book at this worthless human being, and that he is convicted on all counts and the courts make sure he never sees freedom again in his pathetic life!

  5. amicus says:

    Judge Dearie has entered the following order. I have not checked whether any of the referenced documents are the documents that MH has focused on.
    ORDER. Upon further review of the record, the Special Master has determined that there are no matters requiring counsel to travel to Brooklyn for an in-person conference. The conference previously scheduled for December 1, 2022, is therefore cancelled. Instead, the Special Master directs the parties to respond jointly to the following questions by 5:00 p.m. on December 1, 2022:
    1. Do the parties dispute the categorization of the following records under the Presidential Records Act, 44 U.S.C. § 2201, et seq. (“PRA”)? In each case, the parties’ spreadsheet summarizing their respective categorizations and disputes reflects that the parties have a PRA dispute despite both sides categorizing the document as a “personal record.”
    a. Bates no. 156
    b. Bates nos. 476-79
    c. Bates nos. 3971-77
    d. Bates nos. 4017-18
    e. Bates nos. 12246-48
    f. Bates nos. 15167-68
    g. Bates nos. 17993-95
    h. Bates no. 17996
    2. Do the parties dispute the PRA categorization of Bates no. 7017? The parties’ spreadsheet reflects differing categorizations but also lists the document as not being in dispute.
    3. Does Plaintiff assert executive privilege with respect to Bates no. A-054 and A-055 (documents 15 and 16 of the Filter Materials)? Compare ECF 160-1 at 2 (letter from Plaintiff’s counsel noting that “there is no further matter to resolve” as to each) with ECF 187-1 at 4 (subsequent letter from government reporting that each document is disputed based on Plaintiff’s assertion of executive privilege).
    Signed by Special Master Raymond J. Dearie on 11/28/2022. (Entered: 11/28/2022)

      • brucefan says:

        I’ve been out of the loop for many (wonderful) days. Could this possibly mean that Dearie is wrapping up his part so the 11th Circuit can punt?

        Please tell me the many ways I’m wrong.

        • Amicus says:

          Dearie is working in accordance with the district court schedule separate and apart from the appeals process. He’s simply doing his job. During the oral argument at the 11th Circuit, Trump’s lawyer Trusty suggested that the district court proceedings would all be over soon, and that the court of appeals ought to let that play out. Assistant Solicitor Joshi responded that if the court of appeals did not act, the district court process could take months to play out or more, with no deadline for Judge Cannon to act, and each side appealing adverse rulings.

          What could well happen is that Dearie makes a number of adverse rulings against Trump, and then the 11th Circuit rules that the district court lacks jurisdiction over the matter and must dismiss the case. While Dearie’s rulings would not have precedential value, they could prove influential with other judges in later proceedings, if things get that far. Hopefully, they do.

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