But Special Master Raymond J. Dearie is still there, as he moves forward with a less consequential review of all the other material. And now Trump’s lawyers face a series of very public and potentially embarrassing exchanges sparked by the special counsel they themselves recommended for the job.
First, Dearie did something that Trump-appointed U.S. District Judge Aileen M. Cannon hadn’t done for some reason: press Trump’s legal team over her suggestions that Trump could have declassified the documents. This is no longer relevant to Dearie’s review, as these documents are no longer within his purview. But their inability to provide real evidence this declassification took place (or to echo Trump’s public assurances that he had declassified all documents) was first reprimanded by Dearie and then, shortly thereafter, by the 11th Circuit Court of Appeals.
The three-judge panel, which included two other Trump nominees for the bench, repeatedly noted that Trump’s lawyers had provided 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 decided, making the issue a red herring anyway. (The three potential crimes the DOJ said it is investigating also do not require the documents to have been declassified.)
The judges prominently cited the Special Master’s inquiries into the matter and ruled in a way that made it more difficult to appeal to the Supreme Court.
And now comes another headache for Trump’s legal team, courtesy of Dearie.
In an order Thursday, Dearie pressed Trump’s lawyers on another of Trump’s repeated suggestions about what really happened: the still-unsubstantiated theory that the FBI might have planted evidence.
This speculation was filed very soon after the raid of Mar-a-Lago, not only by Trump, but also by some of his attorneys. Often this was not stated as directly as the request for declassification – simply raising the possibility — and died down for a while before Trump pointed in that direction again on Wednesday. In an interview with Fox News host Sean Hannity, Trump asked, “Did they drop anything in those piles ‘of materials taken from Mar-a-Lago,’ or did they 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” during this search of the August 8, or which is described incorrectly. Dearie adds that this will be the “last opportunity” for Trump’s legal team to raise such disputes.
It’s the first time Trump’s attorneys have been directly tasked with reporting on Trump’s out-of-court claims — given that Dearie ultimately didn’t have to force a response on the declassification issue.
Either way, it was clear there was no real evidence to back it up. If it existed, there was ample opportunity to feature it, though Cannon proved to be obviously uncurious.
Trump’s legal team could possibly get away with it for now. One of their suggestions as to why they didn’t look into the issue of declassification was that they hadn’t had enough opportunity to review the seized documents. (That shouldn’t have stopped them from pushing for declassification more broadly, of course.) They might say they can’t conclude based on the inventory list, and without access to the documents, if there are any discrepancies.
But if they don’t offer at least a general assertion that something might have been planted, that will still say a lot about the veracity of the baseless public insinuations of their client and even some of his lawyers.
Trump himself apparently gave up on the idea that he could prove the suggestion that something was “planted” during the search. Long ago, he floated the idea of releasing Mar-a-Lago security camera footage on research. But on Wednesday, when Hannity asked about those images, Trump suggested he didn’t actually have footage of the parts involved.
(In another part of the interview that aired Thursday night, Trump objected to the release of the footage, saying the FBI had asked him not to shield the agents involved. But when Hannity noted that he could pixelate the officers’ faces, Trump responded as if he hadn’t even thought of it.)
If he doesn’t even have the images of the specific pieces, that would certainly seem to undermine the idea that Trump really has something to rely on. He filed the suggestion very soon after the Mar-a-Lago raid and before we even had an inventory list. And his lawyers were not allowed to watch the officers as they carried out the search. They also testified that they conducted a thorough review of the documents before the search, which means they should probably know how what was there compares to the inventory list.
As with Trump’s declassification claims, Trump’s lawyers are forced to choose between the wrong options. They can try to back up their client’s claims, but could face legal – and even personal – trouble if they can’t prove it. (They could already be in trouble for falsely representing, before the search, that they had turned over all documents responding to a subpoena.) Or they may continue to not actually support their client.
If the past is previous, they will do the latter. And their client’s credibility would again be significantly undermined by his own legal team – as would the strategic wisdom of a special master’s position that has now lost its luster.