Judge Grants Trump’s Special Master Motion

[Res Ipsa]

Which point made by which law professor would you like me to comment on?

Your choice.

I don’t have the time to play an extended game of whack-a-mole, in which I pick an issue and do the work necessary to show why that the issue is not as slam dunk as portrayed, only to be met with something like “what about all the others?” If you can identify a particular claim that you find persuasive, I’ll do my best to address it.

[Res Ipsa]

Here is Trump‘s response to the Motion for Partial Stay. They do repeatedly refer the judge back to issues she’s already decided, which is an oblique way of arguing that the government should have raised those issues in the previous round of briefing. But the response distracts from potentially good arguments by introducing a couple of howlers: The PRA specifically defines “presidential record” and “personal record.” Trump cannot turn a “presidential record” into a “personal record” by simply declaring it to be one. And the PRA was held to be Constitutional in the second Nixon case.

And the description of declassification in the brief is nonsensical. The problem is that Trump “declassifying” documents in his head is indistinguishable from lying about declassifying after the fact. That’s why people keep harping on the existing procedures for declassifying documents. No one is required to take Trump’s word that he declassified documents while he was President — nor should they.

And those two claims in the brief will be the source of weeping and wailing and gnashing of teeth. Because those arguments are premature. Arguments over privilege of any kind are generally resolved in one of two ways. The judge reviews the documents claimed to be privileged in camera — meaning without showing them to the other parties and decides which are protected by the privilege. Or, if it’s lots of documents or needs to be completed faster than the judge can do it, the judge appoints a special master to do the scut work and write a report to the judge with recommendations.

In the first Nixon case, which involved the Watergate special prosecutor’s subpoena of the White House tapes, Nixon argued that the tapes were absolutely privileged under executive privilege. The Supreme Court disagreed, but acknowledged that there was a presumption that the tapes were privileged. It also held that the special prosecutor’s specific need for the tapes to investigate potential criminal acts could overcome that presumption. The case was remanded to the trial judge to conduct an in camera review the tapes and other documents over which Nixon claimed privilege. The judge could have used a special master, but did not.

In the current case, the judge faces the rare fact that part of the documents seized are marked classified so she cannot look at them to review them. In addition, Trump, the person who has to assert any privilege, doesn’t know any specifics about the documents that were seized.

In addition, the judge is exercising a specific type of jurisdiction that gives her a fair amount of discretion in deciding whether to invoke it. When something is at least arguably part of the judge’s discretion, you either need clear case authority that the judge has exceeded the limits of her discretion (If there are such cases being cited by anyone, I’ve missed it) or you have to persuade the judge that exercising that discretion in this particular case would be a bad idea. The government has tried mostly the first, but overstated what the case law actually holds, as correctly pointed out a couple of times by the judge.

I’m still puzzled why the government didn’t take on jurisdiction directly. I don’t think there’s even a section in its brief in opposition to Trump’s motion to appoint a special master that is labeled jurisdiction. They argued standing, and at oral argument that the standing argument could be considered jurisdictional, which itself is odd as they are not the same thing at all. And it is even odder given the judge’s specific questions about jurisdiction that she asked Trump to address in his brief. In general, jurisdictional issues should be raised front and center because, if you persuade a judge that they have no jurisdiction, nothing else matters. And it’s a basic rule that, when a judge has a question about something, you address it.

Normally, the government would get a reply brief. This is a very accelerated briefing schedule, and I don’t recall whether she set a deadline for a reply. I’m guessing we’ll hear about that today.

Roadmap from here: The judge needs to decide who the settlement master will be and issue an order telling the special master what she wants him to do. Because the government’s appeal is an interlocutor appeal, I believe it must petition the Court of Appeals to accept the appeal. I don’t know how the fact that the government hasn’t asked Judge Cannon to certify her order as appropriate for an interlocutory appeal will affect the 11th Circuit’s willingness to accept the petition.

Meanwhile, the partial stay motion is a separate issue. If it’s denied, the government can and will likely ask the COA for the same relief. So, lots of grist for the legal analyst mill this week.

[Moksha]

The DoJ might be worried about the 11th Circuit Appeals court having a majority of Trump-appointed judges and presided over by Clarence Thomas. Judge Canon could reason such a group would back her up in any pro-Trump rulings.

[Res Ipsa]

The DoJ might be worried about the 11th Circuit Appeals court having a majority of Trump-appointed judges and presided over by Clarence Thomas. Judge Canon could reason such a group would back her up in any pro-Trump rulings.

Sigh. So, do you think the Clinton-appointed judge that dismissed Trump’s conspiracy case against Bill Clinton’s wife did so because he was in Bill Clinton’s pocket?

Do you know what Clarence Thomas’ responsibilities with respect to the 11th Circuit are?

[Moksha]

Do you know what Clarence Thomas’ responsibilities with respect to the 11th Circuit are?

Would he preside and be served the eucharist first? Name on the letterhead? Caribbean "education" junkets for him and his wife along with the other judges and wives paid for by some lobbying effort?

[Doctor Steuss]

DOJ has accepted one of Trump's picks for Special Master: Link

Raymond Dearie, the former chief judge of the federal court in the Eastern District of New York, is currently on senior active status, and the department said he had indicated he was available and “could perform the work expeditiously” if appointed.

[Res Ipsa]

DOJ has accepted one of Trump's picks for Special Master: Link

Raymond Dearie, the former chief judge of the federal court in the Eastern District of New York, is currently on senior active status, and the department said he had indicated he was available and “could perform the work expeditiously” if appointed.

A senior status or retired federal judge would be a good pick. That’s three out of the four.

[Res Ipsa]

And the government’s reply brief.

https://storage.courtlistener.com/recap ... 88.0_5.pdf

[Res Ipsa]

Judge Cannon has selected the special master, which will be the only one of the four proposed individuals that was acceptable to both parties.

The order also includes the instructions to the special master. The special master is charged with determining the issues:

1. Which documents, if any, fall within the attorney-client privilege?

2. Which documents, if any, fall within executive privilege?and

3. Which documents are Presidential Records under the PRA and which are Personal Records?

He must also satisfy himself that all items seized by the FBI are listed on the government’s inventory list.

This is the kind of order that I think the judge should have given to the parties for their review, comments and objections. Two problems jumped out at me:

First, the way the order reads, the documents identified by the taint team will not be reviewed to decide which are presidential records and which are personal records.

Second, the order refers to the parties’ agreement, but it’s not clear whether she’s referring to an existing agreement or to her expectation that the parties will reach agreement as to what should be done with the documents that fall within each category: Presidential and privileged, presidential and not privileged, Personal and privileged, Personal and not privileged.

If there is an existing agreement, it should be in writing and she should have attached it or referred to it by date. If she expects the parties to reach an agreement on something, she should have ordered them to try and reach an agreement on a specific issue, including how any disagreements will be resolved.

But, while the parties may not dispute what should be done with some of the categories, her process doesn’t take account of the fact that government can keep personal, non privileged documents as evidence unless Trump files a motion a motion under Criminal Rule 45(g) and makes the required showing. She hasn’t charged the special master with anything regarding Rule 45(g), and it’s not clear from her order what happens if the parties disagree on what should be done with the documents in each class.

Now, to correct problems in the order, the parties will have to file motions for reconsideration, as opposed to giving input before the order was issued.

Trump will get copies of all documents seized by the FBI. His counsel, one of whom has the necessary security clearances, will review the documents marked classified, as well as any non-documentary evidence.

https://storage.courtlistener.com/recap ... 3.91.0.pdf

[Res Ipsa]

Judge Cannon also denied the government’s motion for partial stay, but clarified that her order did not prohibit the FBI from participating in the security review. That basically eliminated the government’s argument that her previous order interferes with the security review.

https://storage.courtlistener.com/recap ... 89.0_2.pdf