What to make of the motion seeking a ‘special master’ and more for the DOJ’s Mar-a-Lago search.
What to make of the motion seeking a ‘special master’ and more for the DOJ’s Mar-a-Lago search.
T he good news for former president Donald Trump is that he has recently retained competent defense lawyers: experienced former federal prosecutors, Jim Trusty and Evan Corcoran, who know how the Justice Department works, and therefore where the DOJ is going with its criminal investigations (yes, that’s investigations, plural) — and where it may have stepped out of bounds in the Mar-a-Lago search.
The bad news is twofold. First, the starters have been brought into the game belatedly. Consequently, although the relief the former president is seeking in the motion he filed in Florida federal court on Monday is eminently reasonable, he may have waited too long for some of it to do him much good. Second, Trump being Trump, the motion is part political-propaganda document, indulging throughout the fantasy that he is still the chief executive. The very first words of the motion are: “President Donald J. Trump . . . respectfully files this Motion . . .” and by seven pages in, counsel are quoting, as if it were somehow authoritative, an August 15 Truth Social post, in which Trump proclaimed that he is “the 45th President of the United States (who got more votes, by far, than any sitting President in the history of our Country!).” This may set them swooning at Club 45 USA, but it probably won’t amuse Judge Aileen M. Cannon, the Trump appointee to whom the motion has been assigned.
To be clear, Trump’s motion is different from the motion filed by news agencies for disclosure of the probable-cause affidavit supporting the Mar-a-Lago search (the matter in which Magistrate Judge Bruce Reinhart has ordered the Justice Department, two days from now, to propose a redacted version of the affidavit that could potentially be made public). Trump’s motion is a separate lawsuit, brought under the federal rules of criminal procedure (Rule 41(g)), and seeks three forms of relief.
Special Master
The first is the appointment of a special master to determine which of the materials seized are privileged. This marks a sensible climb-down from Trump’s original stance that any materials covered by either executive or attorney–client privilege should be returned to Mar-a-Lago. (As I’ve explained, this claim conflated the separate issues of privilege and ownership of the documents — the documents are the property of the United States and, even if privileged, will henceforth be kept in the government’s custody.)
The records of any former president are certain to involve privileged documents. Presidents’ consultations with their advisers are presumptively privileged. Those advisers often include lawyers, so the attorney–client privilege melds into executive privilege.
Keenly aware of this, the Justice Department committed, in asking Magistrate Judge Reinhart to issue the warrant, to implement the “filter” procedures it uses when an evidence-collection technique is sure to implicate documents reflecting communications and work products that are confidential by law (e.g., the search of an attorney’s office). These procedures involve having the documents seized reviewed in the first instance by a “filter team” of government lawyers who are not part of the prosecution team assigned to the case. The idea is that the filter team will sift out any privileged documents so that they are not seen by the case prosecutors and agents.
Courts have approved this procedure, but reluctantly so because it is the least-bad option. That is, there has to be some acceptable privilege-review process because criminals could otherwise insulate themselves from investigation by bringing lawyers into their machinations. But it is not a perfect solution, to say the least. If a document is privileged, it is supposed to be kept confidential from the government; the filter team is the government, even if it is not composed of government officials who will do the prosecuting.
There is the obvious problem of whether the Justice Department can be trusted to implement the process effectively — is the “Chinese wall” really impenetrable? And then there are complications that can make things tricky even if the government tries hard to do it by the book. For example, are the two-dozen FBI agents who seized the documents (and therefore presumably perused them to determine that they were covered by the warrant) all part of the filter team? Was not a single one of the agents conducting the investigation’s most significant evidence-collection enterprise part of the investigation team? And if there were case investigators at the search, as would be routine in a criminal case, doesn’t that mean that the prosecution team has already been privy to privileged information?
Because of the abundance of privileged documents in the Mar-a-Lago search, it makes sense to seek a special master. In essence, a judicially appointed special master would put the court, rather than the Justice Department, in charge of the privilege review. An added benefit for Trump would be that the special master would invite input from Trump’s lawyers about which documents are privileged and why. This would give him far greater insight into what the government has and, just as important, what it is interested in.
But here’s the problem: Experienced defense counsel would have demanded a special master from the beginning — would probably have been screaming for one, in court, even as the FBI was conducting its nine-hour search, and certainly by the next day. Trump waited until two weeks after the search to seek one — even though, according to the motion, a Trump lawyer was rebuffed three days after the August 8 search when he raised the matter with the top prosecutor, Jay Bratt (who heads the Counterintelligence and Export Control Section in the DOJ’s National Security Division).
As part of the motion, Trump is asking the court to direct that the government suspend its review of the seized materials until a special master is in place. But after two weeks, the government must have already reviewed all or most of the seized materials and made decisions about what the prosecution team could review. (Though this is not mentioned in Trump’s motion, it would be interesting to know if Magistrate Judge Reinhart required that the Justice Department seek the court’s permission before the filter team shared any seized materials with the prosecution team.)
It would have been much better to have a special master in place from the start. It is also puzzling why the Justice Department, in a matter so politically fraught (an unprecedented search of the home of a former president and prospective opponent of the incumbent president), did not agree to a special master when a Trump lawyer asked on August 11. Indeed, it would have been better if the DOJ had proposed the idea itself.
The DOJ’s failure to do so, and its resistance to the Trump lawyer’s proposal of a special master on August 11, fuel the suspicion that the Justice Department had a closet agenda, such as the January 6 investigation, in conducting the search. Trump’s motion hammers at this probability, noting that in opposing the public release of the warrant affidavit: “The Government claims public exposure of the Affidavit would ‘jeopardize’ this investigation and ‘other high-profile investigations. . . . The phrasing suggests that DOJ has other interests at work than simply collecting documents with classification markings” (emphasis in original). Trump’s counsel elaborated that the government’s behavior “suggests that DOJ simply wanted the camel’s nose under the tent so they could rummage for either politically helpful documents or support other efforts to thwart President Trump from running again, such as the January 6 investigation.”
We will see whether the Justice Department opposes the special-master proposal. I believe it should consent to the appointment, particularly given the nigh-limitless breadth of the search warrant. Which brings us to the next claim.
Detailed Inventory
When we got to see the warrant nearly two weeks ago, I contended that its breadth was such that it could be portrayed as an unconstitutional “general warrant” — i.e., a warrant authorizing an essentially unlimited rummaging through Trump’s estate, with no real material restrictions on what government documents (or possible government documents) could be seized.
As Trump’s lawyers point out, even with these illusory limitations, the FBI still managed to seize materials that were clearly out of bounds — namely, Trump’s passports (which have been returned to him). They forcefully argue that this both illustrates the overbreadth of the warrant and puts the lie to Attorney General Merrick Garland’s insistence that “where possible, it is standard [Justice Department] practice to seek less intrusive means as an alternative to a search, and to narrowly scope any search that is undertaken.” This highly intrusive search was anything but narrow — and Trump’s lawyers point out that Garland’s posturing to the contrary came in the course of a highly irregular press conference that flouted DOJ guidelines. (The motion cites the Justice Manual, which provides that the “DOJ generally will not confirm the existence of or otherwise comment about ongoing investigations.”)
The Justice Department exacerbated what Trump’s counsel portrays as these violations of the Fourth Amendment’s particularity requirement (warrants must describe the particular items to be seized) by its laughable inventory. To be sure, the law does not require agents, in drawing up the list of items they have seized by warrant, to write a precise description of every document — life is too short. But Trump’s lawyers persuasively argue that there has to be enough detail that the inventory is verifiable — after all, one of its purposes is to forestall later claims of theft and other possible disputes about what was taken. The property receipt the Mar-a-Lago agents prepared is woeful in this regard — in the main, it summarily stated that “boxes” of items had been seized, without even saying whether these were boxes the government brought for carrying things away (as opposed to Trump’s own boxes of stuff), much less what was in the boxes and where the boxes were taken from.
The motion asks the court to order the government to provide a detailed “Receipt of Property” — i.e., a more exact inventory of what was taken and from where. This is a completely reasonable request in light of how uninformative the current inventory is, and the court should grant it.
I would say that the Justice Department should have volunteered to do it, but there is something of a Catch-22 here. Prosecutors knew Trump was going to claim that the Justice Department was invading executive and attorney–client privilege. If they’d completed a more descriptive inventory, it would have implied a searching probe of documents that may be confidential and that prosecutors, therefore, should not be inspecting. I suspect the uninformative inventory is not sloppiness; it is an attempt to do what’s minimally required by federal law without raising red flags about privilege violation.
There are many other arguments Trump makes about the warrant. Claims are often raised in the form of provocative questions about whether the Justice Department complied with legal requirements or made what Trump frames as misleading representations to Reinhart. For now, we can table these as premature. They are the kinds of things lawyers say when they haven’t yet seen the affidavit that laid out the probable cause for the warrant. Moreover, while they set the stage for motions to suppress evidence from the search if Trump is eventually indicted, there is not much a court can or should do about them at this stage when no charges have been filed.
Return of Property
The Trump team also asked the court to order the “return [of] any seized item that was not within the scope of the Search Warrant.” This is a reasonable request. Furthermore, as the Justice Department’s return of the former president’s passports suggests, it is a normal process that parties engage in, even without court direction, after a search has been executed.
Noteworthy here, again, is that Trump is no longer claiming items that are privileged should be returned to him — a recognition that, by law, the government owns any government records, even privileged ones. Instead, he claims the government indiscriminately seized many personal items of his (e.g., photos) that were obviously not government property and that should be returned to him. If that is the case, the Justice Department should return them forthwith, regardless of whether the judge orders that it be done — which, presumably, the judge will do.
Conclusion
Trump’s lawyers have filed a modest motion for relief, some of it belated but all of it reasonable. They do not help their cause by inclusion — no doubt, at their irascible client’s insistence — of the Trump narrative that he is still president, that he is way ahead in the GOP-primary polls, that he would soundly defeat President Biden (whose name is mentioned only once, in a cited headline about how his support is sliding), and that he has faced a history of Justice Department and FBI persecution (to which Trump adds the provocative suggestion that “FBI agents involved in the Russia defamation” may be assigned to the current investigations).
To be sure, some of these atmospherics are part of a legal claim that the Justice Department is engaged in a politically motivated scheme, on behalf of the president to whom it answers, to derail Trump’s likely 2024 presidential bid. But a lot of them are over the top, which doesn’t help if you’ve got good points to make, as Trump’s lawyers do.
The former president has also taken a risk in giving a version of the events leading up to the execution of the warrant and beyond. Not surprisingly, this is done in a narrative legal motion — unsupported by any sworn affidavit from Trump. Still, the former president is sticking his chin out: Claiming, for example, to have been fully cooperative at all times (while omitting that, reportedly, a Trump lawyer inaccurately represented to the Justice Department in June that all items marked classified had been returned to the government); claiming to have pressed for transparency from the start (but omitting that he did not publicize the warrant, even though it was in his possession for days before the court unsealed it); and omitting his public suggestions that the FBI may have planted evidence during the search.
If you’re a so-far-uncharged suspect in a criminal investigation, the problem with offering a version of events is that it invites the government to clobber you if your version of events is misleading. And if you’ve presented a misleading version of events to the court and the public, in which you accuse the government of misconduct, it may convince the Justice Department that the best way to correct any misimpressions is to indict you and prove the case in court.
We will see what the Justice Department has to say in response.