[Trump is locked in to the special master process with Judge
Dearie. And it’s pretty clear that the Eleventh Circuit isn’t
prepared to jettison all that stuff about the unitary executive for
some bloviating nitwit.]
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TRUMP REALIZES TOO LATE THAT THIS SPECIAL MASTER THING MIGHT NOT BE
SUCH A SMART PLAN AFTER ALL  
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Liz Dye
September 23, 2022
Above the Law
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_ Trump is locked in to the special master process with Judge Dearie.
And it’s pretty clear that the Eleventh Circuit isn’t prepared to
jettison all that stuff about the unitary executive for some
bloviating nitwit. _

Trump, by cowgirl111 (CC BY-NC-SA 2.0 license)

 

It’s unclear what Donald Trump thought would happen when he dropped
that bullshit lawsuit
[[link removed]] demanding
a special master to sort through the documents seized when the FBI
executed a search warrant at his Mar-a-Lago club August 8. He appeared
to have no agenda other than mollifying Fox News host Laura Ingraham,
who demanded
[[link removed]] a
flurry of motions after more than a week when his lawyers sat silent
as media outlets fought to get the warrant and underlying affidavit
disclosed.

And it’s no more obvious why he suggested Senior US District Judge
Raymond Dearie as special master, after lucking onto the docket of
perhaps the one judge in Florida craven enough to _yadda yadda
yadda_ herself into jurisdiction and credit Trump’s nonsensical
assertions that he telepathically declassified top secret documents
and converted them to personal property.

But now that US District Judge Aileen Cannon has appointed Judge
Dearie as special master, the former president finds himself in the
position of the dog who caught the car: staring at the prospect of
actually sinking his teeth into the bumper or getting run over.

Hot on the heels of the Eleventh Circuit’s humiliating reversal
[[link removed]] of
Judge Cannon’s refusal to exclude classified documents from review
— coupled with an ominous warning that Trump’s claims would get a
very different treatment at the appellate court — Judge Dearie
released his case management plan
[[link removed]].
And his very first order of business is to nuke one of Trump’s
talking points from orbit.

Just hours after the search, Trump’s minions took to the airwaves to
suggest that the FBI had planted documents
[[link removed]] to
frame him.

“Quite honestly, I’m concerned that they may have planted
something. You know, at this point, who knows,” Trump’s lawyer
Alina Habba told
[[link removed]] Fox’s
Jesse Watters on August 9.

Trump himself repeated the allegation
[[link removed]] to
Sean Hannity as recently as Wednesday night. Because it’s fun to lob
wild accusations without having to back them up, safe in the knowledge
that your good buddy won’t demand any actual proof.

But on Monday, the government will hand over a detailed inventory of
everything they took. And on Friday September 30, Trump’s lawyers
will have to submit an affidavit specifying what, if anything, was
“planted,” as well as any item seized which does not appear on the
list.

“This submission shall be Plaintiff’s final opportunity to raise
any factual dispute as to the completeness and accuracy of the
Detailed Property Inventory,” Judge Dearie wrote.

Then next week, Trump can begin rolling production of a spreadsheet
categorizing each item as: personal property; a presidential record;
attorney-client privileged; attorney work product; executive
privileged, not to be distributed outside the executive branch; and
executive privileged, not to be distributed within the executive
branch.

This last appears to be a category entirely concocted for this
dispute. There’s never been a successful invocation of executive
privilege as against the executive branch, and furthermore
the Presidential Records Act
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states that the Archivist, as custodian of those
records, _shall_ make them available “pursuant to subpoena or
other judicial process issued by a court of competent jurisdiction for
the purposes of any civil or criminal investigation or proceeding.”
The only executive agency Trump is worried about distributing those
documents to is the Justice Department, which showed up with both a
subpoena and a judicially approved warrant. So … WTF?

Any disputes about the status of a record will be promptly resolved by
Judge Dearie, with the parties to submit all documents to him for
resolution by October 21. So much for Trump’s request
[[link removed]] that
“all of the deadlines can be extended to allow for a more realistic
and complete assessment of the areas of disagreement.”

Judge Cannon has consistently treated the case as Rule 41(g) motion
for return of property, although no such motion was ever filed, and
Trump’s lawyers claim they are simply seeking more information about
the documents seized so that they might file such a motion at some
indeterminate future point. There’s also the minor matter that Rule
41 is Rule of Criminal Procedure, usually
employed _post-indictment,_ and this is a pre-indictment civil
proceeding. But if Judge Cannon wants to play this game, Judge Dearie
will keep up the ruse.

“Once the Court has reviewed the Special Master’s recommendations
and ruled on any objections thereto, the Special Master will, if
necessary, consider Plaintiff’s motion for the return of property
under Federal Rule of Criminal Procedure 41(g),” he writes, politely
declining to note that said motion appears to have been filed next to
the telepathic declassification orders inside the former president’s
addlepated cranium.

“Plaintiff shall submit a brief in support of the motion no later
than seven calendar days after the Court’s ruling on the Special
Master’s recommendations,” he went on. “In addition to
addressing the merits of the Rule 41(g) motion, Plaintiff’s brief
should address specifically whether the motion may properly be
resolved in this action or must instead be decided as part of the
docket in the action in which the relevant warrant was issued,
9:22-MJ-08332-BER.”

Yes, why _shouldn’t_ this motion go back to Magistrate Judge
Reinhart, who issued the original warrant? Good question!

The plan concludes with some minor housekeeping. Judge Dearie, as an
active member of the judiciary, will not be taking compensation for
his work. But he’s enlisting the aid of retired Magistrate Judge
James Orenstein, of the Eastern District of New York. Judge Orenstein
will be paid $500 per hour, a substantial discount off of the regular
compensation rate for special masters. And since Trump is picking up
the tab for this little diversion, he’ll no doubt appreciate the
discount.

On the other hand, he’s now locked in to this process with Judge
Dearie. And even if Judge Cannon overrules the special master and
allows Trump to make sweeping assertions of executive privilege,
it’s pretty clear that the Eleventh Circuit isn’t prepared to
jettison all that stuff about the unitary executive for some
bloviating nitwit.

As Hunter S. Thompson said, “Buy the ticket, take the ride…and if
it occasionally gets a little heavier than what you had in mind,
well…maybe chalk it up to forced consciousness expansion.”

Trump v. United States
[[link removed]] [Docket
via Court Listener]
United States v. Sealed Search Warrant
[[link removed]] [Docket
via Court Listener]

_LIZ DYE [[link removed]] LIVES IN BALTIMORE
WHERE SHE WRITES ABOUT LAW AND POLITICS._

* Donald Trump
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* Mar-a-Largo
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* Judicial system
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