But special master Raymond J. Dearie is still here, as he presses forward with a less-consequential review of all of the other documents. And now Trump’s lawyers are contending with a series of very public and potentially embarrassing exchanges prompted by the special master they themselves recommended for the post.
First, Dearie did something that Trump-nominated U.S. District Judge Aileen M. Cannon, for some reason, hadn’t: actually pressing Trump’s legal team on its suggestions that Trump might have declassified the documents. That’s now irrelevant to Dearie’s review, with those documents no longer under his purview. But their failure to provide any real evidence that declassification took place (or to echo Trump’s public assurances that he had declassified all of the documents) was rebuked first by Dearie and then, shortly thereafter, by the Court of Appeals for the 11th Circuit.
The three-judge panel, which included two other Trump nominees to the bench, repeatedly noted that Trump’s lawyers had furnished no such evidence and added, in a rebuke to Cannon’s legal reasoning, that it was irrelevant. The documents’ classification status has no bearing on whether Trump has a personal interest in them, the judges ruled, rendering that question a red herring anyway. (The three potential crimes the DOJ has said it is investigating also don’t require the documents to have been declassified.)
The judges prominently cited the special master’s inquiries on this subject and ruled in such a way that could render any appeal to the Supreme Court more difficult.
And now comes another headache for the Trump legal team, courtesy of Dearie.
In an order Thursday, Dearie pressed Trump’s lawyers on another of Trump’s repeated suggestions about what really went down: the still-baseless theory that the FBI might have planted evidence.
That speculation was lodged very shortly after the search of Mar-a-Lago, not just by Trump, but also by some of his lawyers. It often wasn’t stated as directly as the declassification claim — merely raising the possibility — and died down for a while before Trump pointed in that direction again Wednesday. In an interview with Fox News host Sean Hannity, Trump asked, “Did they drop anything into those piles” of materials taken from Mar-a-Lago, “or did they do it later?”
But Dearie apparently isn’t going to let it fester. In his new order, he says Trump’s lawyers must submit by Sept. 30 whether there was anything on the government’s inventory list that was “not seized from the Premises” on that Aug. 8 search, or is incorrectly described. Dearie adds that this will be the Trump legal team’s “final opportunity” to raise such disputes.
It’s the first time Trump’s lawyers have been directly charged with accounting for Trump’s out-of-court claims — given there was ultimately no need for Dearie to force a response on the declassification issue.
In both cases, it was clear there was no actual evidence to back this up. If it existed, there was ample opportunity to present it, even if Cannon proved conspicuously incurious.
Trump’s legal team could conceivably wriggle out of this for now. One of their suggestions for why they didn’t pony up on the declassification issue was that they hadn’t had sufficient opportunity to actually review the documents seized. (That shouldn’t have stopped them from claiming declassification more broadly, of course.) They might say that they can’t conclude based on the inventory list, and without access to the documents, whether there are any discrepancies.
But if they don’t at least offer a broad assertion that something might have been planted, that will again speak volumes about the veracity of their client’s and even some of his lawyers’ baseless public innuendo.
Trump himself has seemingly backed off the idea that he could prove the suggestion that something had been “planted” during the search. He long ago floated the idea of releasing security camera footage from Mar-a-Lago of the search. But on Wednesday, when Hannity asked about that footage, Trump suggested that he didn’t actually have footage of the relevant rooms.
(In another part of the interview broadcast Thursday night, Trump demurred when asked about releasing the footage, claiming the FBI asked him not to to protect the agents involved. But when Hannity noted that he could pixelate the agents’ faces, Trump responded as if he hadn’t even considered it.)
If he doesn’t even have the footage of the specific rooms, that would sure seem to undercut the idea that Trump has really anything to base this on. He lodged the suggestion very shortly after the Mar-a-Lago search and before we even had an inventory list. And his lawyers weren’t allowed to watch the agents as they conducted the search. They’ve also attested that they conducted a thorough review of the documents before the search, meaning they should probably know how what was there compares to the inventory list.
As with Trump’s claims on declassification, Trump’s lawyers are forced to choose between bad options. They can try to echo their client’s claims but could open themselves up to legal problems — and even personal ones — if they can’t back it up. (They could already be in trouble for falsely representing, before the search, that they had turned over all documents responsive to a subpoena.) Or they can continue to not actually back their client up.
If past is precedent, they’ll do the latter. And their client’s credibility would again be significantly undercut by his own legal team — as would the strategic wisdom of a special master post that has now lost its luster.