Trump may have lost interest in the fight with the DOJ over hoarded documents. Initially the special master gambit seemed to work in his favor. But now, it isn’t.
Charlie Savage writes in the New York Times,
But Mr. Trump’s apparent triumph would prove short-lived. An appeals court ruling last week and a letter the Justice Department filed late Tuesday about subsequent complaints his legal team has apparently filed under seal to Judge Dearie suggest that the upsides to obtaining a special master are eroding and the disadvantages swelling.
So the appeals court said that the DoJ could go ahead and assess the classified documents. But that means that “an outside arbiter would still assess some 11,000 unclassified records and other items seized from Mr. Trump’s Florida compound, Mar-a-Lago.” And it’s not clear how doing that benefits Trump.
Indeed, it’s going to cost him a ton of money to have those 11,000 records processed. The one favor Judge Loose Cannon didn’t grant Trump was to have taxpayers foot the bill for that. Instead, he has to pay for it.
That includes the full cost of a vendor who will scan all the materials, as well as support staff for Judge Dearie, like an assistant who bills $500 an hour. Mr. Trump will also have to pay his own lawyers’ fees as they filter thousands of pages of records and then litigate disputes about which ones can be withheld as privileged.
Initially all the qualified companies that do this kind of work refused to do it, because they know Trump’s record for not paying vendors. But then the government guaranteed payment and will bill Trump for it. They have ways of making people pay.
Judge Dearie is doing other things the Trumpers didn’t anticipate but probably should have.
For example, the judge has ordered Mr. Trump to submit by Friday a declaration or affidavit that lists any items on the inventory “that plaintiff asserts were not seized” in the search.
But if Mr. Trump acknowledges that the F.B.I. took any documents marked as classified from his personal office and a storage room at Mar-a-Lago, as the inventory says, that would become evidence that could be used against him if he were later charged with defying a subpoena.
Requiring Mr. Trump’s lawyers to verify or object to the inventory also effectively means making them either affirm in court or disavow a claim Mr. Trump has made in public: his accusation that the F.B.I. planted fake evidence. While it is not a crime to lie to Fox News viewers or on social media, there are consequences to lying to a court.
Essentially, Judge Dearie is telling Mr. Trump’s legal team “to put up or shut up,” said Julie O’Sullivan, a Georgetown University professor of white-collar law.
Late Tuesday, the Justice Department indicated to Judge Dearie that Mr. Trump’s lawyers were balking at his request that their client verify the property inventory at this stage, before the documents could be categorized or reviewed for privilege. They apparently expressed such objections in a document filed under seal.
“They thought it was a win to win the first battle, but they didn’t think through what winning that battle would mean with any reputable judge who is appointed as special master,” Ms. Sullivan said. “They can’t anticipate that every judge will give them a complete pass despite the law. It was a political or a public relations strategy, not a legal one.”
.Judge Dearie also wants the Trumpers to classify each item according to whether they’re asking for attorney-client privilege or executive privilege. “If they claim executive privilege, then they must distinguish between records that are merely shielded from disclosure to people outside the executive branch and those the executive branch itself supposedly cannot review. They must also explain why each document qualifies for such status.” For 11,000 items. Up until now, the lawyers have just been claiming “privilege” without specifying what they mean.
Some commenters are speculating that Trump might abandon the fight.
Update: See Emptywheel, Under Seal, Trump Accuses Hand-Picked Special Master of Not Following Orders.