The latest response filed by former President Donald Trump’s lawyers in the special master dispute before Judge Aileen Cannon smacks of an extremism and desperation perhaps born of having been maneuvered into a legal corner by Attorney General Merrick Garland’s Justice Department.
Instead of filing a concise counter to the DOJ’s carefully tailored ask of Judge Cannon to partially stay her own order just enough to allow investigators access to classified documents, Trump’s legal team begins with a rambling “Introduction” that takes up nearly a quarter of its filing in which it characterizes the entire matter as merely “a document storage dispute” that wrongfully criminalizes Trump’s possession of his own presidential and personal records.
Trump’s lawyers use quotes around the word “classified,” implying that the very classification of any documents is suspect, assert that only a special master can start “restoring order to chaos” and argue that the DOJ is trying to “skip the process and proceed straight to a preordained conclusion.” All of that is on the first page.
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The DOJ’s decision to narrow its legal argument to just seeking access to the classified materials is a smart move because it plays to the strongest part of its argument—namely that it’s not possible to investigate a case involving classified documents without access to the documents—leaving Trump’s lawyers little choice but to attack the DOJ’s very decision to investigate at all.
For example, their use of the phrase “preordained conclusion” clumsily tries to mimic the cliched “rush to judgement” language famously used by legendary criminal defense lawyer Johnnie Cochran in his successful closing argument in O.J. Simpson’s murder trial. But the conclusion Cochran was challenging was the conclusion reached by a criminal investigation—namely that O.J. Simpson had committed murder. In contrast, Trump’s lawyers are trying to control the process of the criminal investigation itself.
The kerfuffle over classification is another example of forced heavy-handedness on the part of Trump’s lawyers as seen in their dismissive statement: “[t]he government has unilaterally determined they are classified.” The “they” being the classified documents. This derisive assertion rests on the silly assumption that the government cannot be allowed to determine what is and isn’t classified. Their suggestion that judicial intervention is required to determine these issues of national security is a fundamental upending of the powers and duties of the executive branch.
These aren’t the usual ways of trying to head off criminal charges. The usual way of defending against criminal investigations is for defense lawyers to do their own investigation and try to convince prosecutors that they are barking up the wrong tree. In violent crimes that means arguing that the government suspects the wrong culprit. In white-collar cases, it usually means convincing the government that no crime has occurred at all. But to all appearances, Trump’s lawyers aren’t arguing the facts to convince the DOJ that there is nothing to investigate. Maybe that’s because its hard to argue against the truth that Trump had in his possession more than 300 documents that included material on a foreign nation’s nuclear capabilities and information that if exposed could potentially endanger the lives of human sources.
This is where the special master gambit comes into play. Asking for a special master is an effort to exert some measure of control over what documents the DOJ gets to see, presumably with the hope that the DOJ will not see enough to make a criminal case, for example under the Espionage Act 18 U.S.C. 793 for the unauthorized possession of and refusal to return national defense information.
But the DOJ’s clever response out-maneuvered Trump’s team by focusing on the fact that a criminal investigation involving national defense cannot take place without access to the materials implicating national defense and asking simply that the investigation be allowed to continue even as the parties fought over whether a special master was necessary and the exact scope of what the special master might oversee.
This focus also offers Judge Cannon a compromise by which she can still preserve a victory for Trump in seeking a special master for the ostensible purpose of promoting public faith in the investigation while also reducing the risk of a humiliating slam-dunk reversal on appeal.
Another instance of the DOJ’s tactical shrewdness is reflected in its indicating that one of Trump’s proposed candidates for special master—former federal judge Raymond Dearie—would be acceptable in addition to their own candidates—while noting its objection to lawyer Paul Huck, a lawyer with strong partisan ties. This give and take strategy improves its chances of looking reasonable to Judge Cannon as well as increasing its chances of avoiding the selection of a conflicted and obviously partisan candidate like Huck.
Ironically, one of the perceived potential weaknesses of Attorney General Garland is that he has spent the majority of his career as an appellate judge and may have lost whatever combative prosecutorial instincts he might have possessed earlier in his career. But here, as the DOJ navigates uncharted legal territory with historically high stakes, Garland’s 20-plus years’ experience as an appeals judge may give the DOJ a big advantage.
After all, who knows better how to fashion a judicial solution than a former judge?
