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Notes -
Some new developments in Trump v. United States which is apparently the caption for the case in the Southern District of Florida where Trump sought (and received) the appointment of a special master to review certain documents the government seized during the execution of its warrant at Mar-a-Lago. According to Judge Cannon's order granting the request the special master is supposed to be reviewing the documents for three categories of information:
Personal items and documents.
Material subject to claims of attorney-client privilege.
Material subject to executive privilege.
The special master whom Judge Cannon appointed is District Court Judge Raymond Dearie who was one of Trump's suggested candidates. Based on some more recent filings Dearie has scheduled a status conference for today and circulated a proposed schedule for document review. I want to focus on Trump's reply to Dearie's proposed schedule. Most of the response focuses on the duration of the review. Dearie thinks it can be done by Oct 7th but Trump's team wants to use the full time contemplated by Cannon's order, ending at the end of November. I'm not going to talk about the scheduling dispute though, rather I think the most interesting part is the third to last paragraph of Trump's filing. It reads, in its entirety:
This is an interesting paragraph. First, the implication that an inventory of what exactly was declassified would be appropriate in a situation where declassification was a reason to return implies that this is not such an action. Whatever Trump's basis that the classified docs should be returned, it is apparently not because they have been declassified. It's also understandable why Trump doesn't want to specify what he did or didn't declassify. If he says anything other than "I declassified all the documents" he's basically admitting to a crime. "Yes I did take classified documents with me when I left and I did refuse to return those documents to the government in response to a subpoena even though my representative lied and said we did." On the other hand, it's easy to see why Dearie wants the information. If the documents are declassified there's maybe an argument they should be returned as personal property but if they are still classified it's hard to see any angle but (3) applying.
This is where I run out of much to analyze but I'm wondering, how binding are any determinations Dearie makes about classification in other proceedings? My understanding is that if Trump came out and made claims about particular documents in this case he could then be estopped from asserting contrary claims about the same documents in another case, but I'm not sure how that works when the judge (or special master) makes the decision rather than the party.
I'm not sure what Dearie's angle here is. The scope of the review does not include classification status, and it's not clear what he plans to do with this information. Trump is arguing that since it's irrelevant at this stage of the investigation he shouldn't have to disclose which documents were declassified and how, because it would give the DOJ a sneak preview of what defense he planned to use if he were indicted for mishandling classified information. It's essentially saying that if the DOJ wants to hear specifics about declassification it should either wait for him to request return of the documents (unlikely), or indict. If the DOJ gets to hear his declassification arguments before they indict it gives them a gauge on how to move forward; if they think his arguments are cock and bull they may be more willing to move forward than if they had no clue about what he planned to argue.
As for the estoppel, generally speaking, it applies to any issue that has been settled. To nitpick, Dearie isn't making any judgments about classification, only privileges, etc. So theoretically, if Dearie were to rule that a particular document wasn't privileged, and the DOJ wanted to use it as evidence in another proceeding, Trump couldn't try to preclude it due to privilege. I say theoretically, though, because there are some limitation. First, estoppel is more of a civil thing than a criminal one, and while this case isn't exactly criminal, it falls under the rubric of "criminally-related civil proceedings", and that could cause problems. Second, it only applies with a final judgment. So even if a court ruled that estoppel would apply here, it would only be effective if Trump were actually charged and convicted or acquitted. If the DOJ doesn't indict or indicts but then drops the case it wouldn't apply.
Canon's order instructs Dearie with:
Classified documents by definition belong to the government. So it is necessary to know whether a document is classified or not to determine whether it might belong to Trump.
Doesn’t the PRA mean that even declassified stuff would probably belong to to the government?
Could be. That's how it looks to me.
I just wanted to push back on the notion that there was no reason for Dearie to ask about the classification of these documents at this time.
It seems like in the hearing today Dearie basically said that the government, via the marking themselves, has laid out a prima facie (first impression) case that these documents are classified and thus belong to the government, and that it is incumbant upon Trump's team to rebut that case if they wish. Hence the suggestion that they identify which were declassified and how.
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