Order In The Court: Special Master Style

It’s time to Break It Down!

There’s an argument to be made that second and third hand news is not news at all, just rumor and conjecture. The thing is that’s how news is typically conveyed. After all, when was the last you were at the front line of a war zone, or in a room with the Royals, or at the table when OPEC decided how much to charge for a barrel of oil? That’s right, when you get down to it, what passes for news is handed down by someone, verbally, or in writing, who got it from someone else, almost all the time.

In these ideologically divided and fraught times, often, the version of the news you choose to embrace depends upon the source, and which way you lean politically. How else does one explain after watching a guy flout convention and norms for the last seven years, nearly as many Americans who don’t trust him, are ready to pledge their support and vote for him to be President of the country? Again!

With that preamble, I want to take a few minutes to explore, for your edification, one of the latest episodes of “What Will He Do Next?

Perhaps you know D. Trump sought and was granted a special master to review the documents the FBI seized when they searched Mar-a-Lago. Judge Aileen Cannon, a Florida US District Judge, appointed by D. Trump, not only agreed to accede to the Trump request, but with DOJ sign-off, assigned a judge approved by Trump, to serve in the capacity of Special Master. 

court hearing in Brooklyn yesterday provided an initial glimpse of how Judge Raymond Dearie, the senior judge selected to fulfil the role, will approach the challenge of reviewing materials seized from former President Donald Trump’s Florida home. 

Judge Dearie is a seasoned and widely respected jurist. He showed skepticism of Trump’s arguments about how the review should proceed, while stressing a desire to move quickly. His appointment order – issued by Judge Cannon – said he must finish his review by the end of November.

Judge Cannon ordered the third-party review, in response to a Trump lawsuit claiming that the review was necessary to filter out materials covered by attorney client privilege, as well personal items that do not belong in the hands of the investigators. It should be noted that lawsuit may have the ultimate effect of running out the clock, as Republicans expect to wrest control of the House of Representatives in the upcoming midterm elections. If that happens as anticipated, a GOP led House will not only quash the current January 6 Hearings, but will likely initiate numerous hearings on Democrats, and possibly launch impeachment hearings against President Biden because, well because Democrats impeached Trump, and if they control the House…they can. But I digress.  

As Judge Dearie starts sifting through the approximately 11,000 documents seized at Mar-a-Lago, the DOJ has asked an appeals court to revive its criminal investigation into the materials marked as classified, as Judge Cannon blocked investigators from using the seized materials during the special master review. 

Here are a few takeaways from yesterday’s hearing in front of Judge Dearie:

Judge Dearie puts Trump on notice that he will need to put up or shut up on declassification

Judge Dearie indicated that he would not have much patience for Trump trying to muddy the waters around the classification status of documents marked as classified, especially if he opts not to produce evidence supporting the claims the records should not be treated as classified. 

“If the government gives me prima facia evidence that these are classified documents, and you, for whatever reason, decide not to advance any claim of declassification, I’m left with a prima facia case of classified documents, and as far as I’m concerned, that’s the end of it,” Dearie told Trump’s lawyers at the hearing.

Jim Trusty, a Trump attorney, said they were not able to fully disclose their defense until they could see the documents.

Judge Dearie, who acknowledged there was political strategy at play, also added there was the practical issue of what recommendations he would need to make to Judge Cannon. He added, “My view of it is you can’t have your cake and eat it.” 

Judge Dearie emphasizes need for speed, putting any Trump delay tactics in jeopardy 

Judge Dearie referenced his November 30 deadline, already after the aforementioned midterms, as he made clear that the review was going to need to move quickly.

“I’m not going to hurry, but we have a lot to do and a relatively short period of time,” he said. 

He made that comment after the Trump team had sought, in their letter Monday, to push back some of the interim deadlines proposed in a draft plan circulated among the parties. Specifically, Trump’s attorneys objected to a proposed October 7 deadline for them to inspect and categorize the materials Judge Dearie has been tapped to review.

During the hearing, Trusty denied they were seeking to revise the schedule as a delay tactic. (Wink, wink.)

“It’s not to be in favor of delay, we want resolution on these things, too.”

Not surprisingly, Dearie did not seem to buy their arguments on the timeline.

There was tension over whether Trump or the judge should even see the sensitive materials 

Judge Dearie stressed that he took seriously the need to protect government secrets, noting the “very strong obligation” that the government must ensure that highly sensitive information does not get out. 

He remarked that if he can make his recommendation to Cannon about certain classified documents without exposing himself or Trump’s lawyers to the material, he would do so.

“It’s a matter of need to know.” Judge Dearie said, referring to the standard in court cases that is used to determine when even those with a security clearance can view classified materials. 

Justice Department attorney, Julie Edelstein, noted that some of the department’s own investigators don’t yet have the special clearances they need to view the particularly sensitive documents.

Trump’s team pushed back on the idea that they could be barred from looking at some of the sensitive materials. Trusty said that it is “kind of astounding to hear the government say that the (former) President’s lawyers don’t have a need to know.”

Judge Dearie brings a serious and focused approach to the job

From the moment he stepped into the courtroom, there were signals that Judge Dearie was viewing the job seriously and had thought through the task at hand. 

He took the bench wearing a dark navy pinstripe suit; in the role, he is not serving as a judge, but as an adviser to the district court in Florida. 

At the outset, Judge Dearie cut directly to the chase, not belaboring any points. 

“I am going to do the best I can with the time available to us.”

He also indicated he saw his role as limited, as he stressed that he would follow closely the instructions from the judge in Florida who appointed him. He told the parties he was tasked with making a “discrete” number of legal judgments.

DOJ hints it may go to SCOTUS if it needs to


While the planning around the special master review is playing out, the Justice Department has also asked the 11th Circuit to intervene in the dispute, and on Tuesday, the government’s attorneys signaled they’d turn to the Supreme Court if need be. Of course, it’s entirely possible Trump’s interests may hold sway there.

The Justice Department is asking for the appeals court to lift the hold Judge Cannon placed blocking the use of the materials marked as classified in the Justice Department’s criminal probe. The DOJ is also asking that those documents be excluded from the special master review. 

If the 11th Circuit rules against the DOJ, Edelstein suggested, it would “most likely consider other appellate options at that point,” raising the possibility the Justice Department could ask the Supreme Court to intervene.

Much still unsettled about the next steps


The hearing ended with much still undetermined regarding the timing of the review’s next steps. 

Judge Dearie gave Trump’s lawyers until Friday to say which vendor, among the options put forward by the Justice Department, should be used for scanning and hosting copies of the records for the parties to access through the review. The rest of the timeline has yet to be set. 

After the documents are scanned and made available to the parties, the next step would be for the documents to be logged according to the four categories set out by Judge Cannon, with any disagreements between the parties about how records should be logged then brought to Judge Dearie for his take. From there, Judge Dearie will make recommendations to Judge Cannon for how those disagreements should be resolved. 

The four categories Judge Cannon has laid out are personal documents that are claimed as privileged, personal documents that are not privileged, presidential records that are claimed as privileged, and presidential records that are claimed as not privileged.

If one thing is clear from the early going, it is that in picking Judge Dearie, Team Trump may not have secured the lackey they’d hoped would ease their task. It’s still early, but so far, it appears Judge Dearie is playing it straight. “Order In The Court: Special Master Style!”

I’m done; holla back!

Read my blog anytime by clicking the linkhttp://thesphinxofcharlotte.comFind a new post each Wednesday.

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