Former President Trump won a crucial victory over investigators on Thursday. If it stands, it would slow the investigation into how sensitive documents were handled at Mar-a-Lago.
The major action in the investigation is now set to be postponed before the midterm elections until the government’s appeal filed Friday is successful – by then Trump can declare himself the 2024 presidential candidate.
In that scenario, he can be expected to argue with even greater enthusiasm that he is being victimized by the Department of Justice (DOJ) and the FBI for political reasons. At a recent rally in Pennsylvania, Trump dubbed the two organizations “vicious monsters.”
The victory for Trump came when Judge Ellen Cannon announced on Thursday that she would appoint Raymond Deary, a semi-retired judge proposed by Trump’s legal team, as the so-called special master in the case, which first went public with Aug. had come to the fore. The FBI raided the former president’s Florida club.
Cannon, who was a Trump appointee himself, supported the former president in other important ways as well.
The typical role of a Special Master is to evaluate documents confiscated in law enforcement raids to see if there may have been a privileged attorney-client communication – or private and without evidence.
Canon held that Deary could evaluate all documents confiscated for this purpose, including those marked classified. About 11,000 documents were taken in the raid, of which about 100 were classified marks.
The government has argued – including in its Friday appeal – that, even if Cannon insists on going ahead with the appointment of a special master, documents with classified markings should be exempted from the process.
In short, the government claims that such documents, by their very nature, cannot be Trump’s personal property and are themselves clearly germane to the investigation.
But “the Court did not consider it appropriate to accept the Government’s findings on these important and disputed issues without a prompt and systematic review by a neutral third party,” Cannon wrote.
Moving on, there are two other important aspects to Canon’s latest decision.
First, it has given the special master time till November 30 to complete his work, barring some lines of inquiry for at least six weeks.
Second, Cannon held fast to a controversial view.
She claims that pending Diary’s review, it is possible to withhold the use of confiscated documents in a criminal investigation, as well as proceed with a separate process that will assess whether national security interests may be at risk. .
Media reports have suggested that at least one seized document shows nuclear capabilities of a foreign nation. Many were classified as “TS/SCI”, an acronym that stands for “Top Secret/Sensitive Compartment Information”.
Cannon took an unquestioning jibe at investigators in his Thursday decision, noting that the main national security threat so far in the case stems from “unnecessary disclosures.” [in] leaked to the media Later implicit seizure. ,
The government had argued that the two aspects being examined – national security implications and potential criminality – could not be separated.
If the DOJ does not prevail in its appeal, legal experts say investigators face significant problems.
Investigators cannot currently access the contents of any documents seized in interviews with potential witnesses. In practice, this would seriously nullify the investigation.
“If you still can’t share the material, how do you investigate the issues related to those documents from an intellectual standpoint?” Mark Zaid, a DC-based attorney who specializes in matters related to national security.
“The first question, let’s say to a member of staff at Mar-a-Lago, might be, ‘Where did you see the classified document?’ And they say, ‘Which one?’ And the answer is, ‘We can’t tell you.’ The FBI runs out of steam within two questions.”
Zaid said, however, that this does not necessarily remove all the legal threats facing Trump or those close to him.
Previous filings have shown that obstruction is one of the possible crimes being investigated.
A case can be made that such offense was committed without reference to the actual contents of the documents.
The chronology of events, including the FBI search of Mar-a-Lago, shows that Trump and those around him were summoned to produce all documents bearing classified markings and that they did so, while Actually he didn’t do that.
It can be seen as evidence of a crime, regardless of what is in the document.
In the real world, however, the DOJ may be reluctant to prosecute a former president at that stage, when it might otherwise wait for the Special Master’s review to finish.
Meanwhile, some legal observers are vehemently against Cannon’s decision.
“Judge Cannon was not only leaning in Trump’s direction, but falling at his feet,” said former US Attorney and Deputy Assistant Attorney General Harry Littman.
Dearie has directed counsel for the parties concerned to appear in a federal courtroom in Brooklyn, NY on Tuesday for a “preliminary conference.”
Complicating matters further, Cannon allows Dearie to evaluate the documents to see if Trump can reasonably exercise executive privileges — not just attorney-client privileges — on any of them.
The specifics of legal arguments do not hide the underlying realities.
A Trump-appointed judge has placed a significant speed-barrier in the way of the investigation.
The impediment can be removed on appeal.
If it isn’t, prosecutors face a frustratingly slow road ahead.
Memo is a column reported by Niall Stanage.