{"id":1646488,"date":"2022-09-19T07:04:27","date_gmt":"2022-09-19T11:04:27","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1646488"},"modified":"2022-09-19T07:06:26","modified_gmt":"2022-09-19T11:06:26","slug":"few-trust-the-doj-which-is-why-court-should-reject-its-request-to-freeze-special-master","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/few-trust-the-doj-which-is-why-court-should-reject-its-request-to-freeze-special-master\/","title":{"rendered":"Few Trust The DOJ, Which Is Why Court Should Reject Its Request To Freeze Special Master"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"&quot;\"><div class=\"counts mashsbcount\">32<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Ffew-trust-the-doj-which-is-why-court-should-reject-its-request-to-freeze-special-master%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1646488&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><div><\/div>\n<p>The race is on between the Biden administration, which on Friday filed a motion to stay the special master\u2019s review of some 100 documents the FBI seized from Trump\u2019s Mar-a-Lago home, and the special master, who could begin reviewing those documents as early as this week.\u00a0<\/p>\n<p>Over the weekend, the 11th Circuit accelerated the contest by ordering Trump\u2019s legal team to respond to the DOJ\u2019s motion to stay by Tuesday at noon, even as the special master already called a conference with the lawyers for that same afternoon to discuss the review process. For the sake of the country, the 11th Circuit should deny the DOJ\u2019s request and allow the special master to proceed with the review.<\/p>\n<p>Much has happened since Thursday when federal Judge Aileen Cannon, a Trump appointee, selected Judge Raymond J. Dearie to serve as special master to review the material seized by the FBI during an August 8, 2022, raid of Trump\u2019s Mar-a-Lago home.\u00a0<\/p>\n<p>Dearie, a Reagan appointee and semi-retired senior judge for the Eastern District of New York, had previously served for seven years on the Foreign Intelligence Surveillance Act or \u201cFISA\u201d court. In fact, in that position, Dearie signed the FISA court\u2019s fourth faulty Carter Page surveillance order. Nonetheless, Trump recommended Dearie to serve as a special master to review the seized materials. With the government not objecting to his selection, Cannon made his appointment official on Thursday.<\/p>\n<p>Cannon\u2019s order appointing Dearie also delineated his responsibilities as special master and the general process. Among other things, Cannon directed Dearie to \u201creview all of the materials\u201d seized during the Mar-a-Lago raid and to \u201cverify that the property listed in the \u2018Detailed Property Inventory\u2019\u201d \u201crepresents the full and accurate extent of the property seized.\u201d The order further directed the special master to review the documents for privilege, including for formal assertions of \u201cexecutive privilege.\u201d\u00a0<\/p>\n<p>Most helpful for Trump and the half of Americans who no longer trust the DOJ and FBI, was Cannon\u2019s order to the Biden administration that it make any documents with classification markings available \u201cfor inspection by Plaintiff\u2019s counsel, with controlled access conditions (including necessary clearance requirements) and under the supervision of the Special Master.\u201d The government must also provide copies of all other documents to Trump\u2019s lawyers, and for nondocumentary items, the DOJ must make them available to Trump\u2019s attorneys for inspection.<\/p>\n<p>As I <a href=\"https:\/\/thefederalist.com\/2022\/09\/16\/trump-scores-two-huge-victories-in-fight-for-special-master\/\" target=\"_blank\" rel=\"noreferrer noopener\">explained<\/a> last week, \u201cJudge Cannon further directed Trump\u2019s lawyers to provide their position on which of four categories each item seized falls into: 1) personal items and documents not claimed to be privileged; 2) personal documents claimed to be privileged; 3) presidential records claimed to be privileged; and 4) presidential records not claimed to be privileged.\u201d If the DOJ and Trump disagree on the appropriate classification, the special master will make recommendations to Judge Cannon, who will then decide the issue.<\/p>\n<p>Cannon\u2019s order also directed the special master and the parties to prioritize for review the 100-some documents the government maintains were marked classified, with the entirety of the review then to be completed by November 30, 2022.\u00a0<\/p>\n<p>The same day she named Dearie special master and specified his responsibilities, Cannon denied the Biden administration\u2019s request that the court \u201cstay\u201d or put on hold the order directing the government to provide the special counsel access to the approximately 100 documents supposedly marked classified, pending the government\u2019s appeal to the 11th Circuit. The DOJ also asked the court to allow the government to use those 100-some documents \u201cfor criminal investigative purposes\u201d \u2014 something Cannon had ruled the government could not do until the special master completed his review. Cannon rejected that request as well.<\/p>\n<p>In denying the government\u2019s request for a stay, Cannon <a href=\"https:\/\/storage.courtlistener.com\/recap\/gov.uscourts.flsd.618763\/gov.uscourts.flsd.618763.89.0_2.pdf\" target=\"_blank\" rel=\"noreferrer noopener\">explained<\/a> that the DOJ effectively asked her to accept at face value the government\u2019s representations that \u201call of the approximately 100 documents isolated by the Government (and \u2018papers physically attached to them\u2019) are classified government records.\u201d The court was unwilling to accept the government\u2019s representation \u201cwithout further review by a neutral third party in an expedited and orderly fashion.\u201d\u00a0<\/p>\n<p>Cannon added that she was \u201cnot persuaded that the Government will suffer an irreparable injury without the requested stay.\u201d Here the court noted that while the DOJ framed its request as necessitated by urgent national security needs, the government has not identified any \u201cemergency\u201d or any likely \u201cimminent disclosure of classified information arising from Plaintiff\u2019s allegedly unlawful retention of the seized property.\u201d On the contrary, the only disclosures seen to date, Cannon stressed, were the government\u2019s \u201cleaks to the media.\u201d And, in any event, because she directed the special master to prioritize the review of the approximately 100 documents supposedly marked \u201cclassified,\u201d Cannon rejected the claim of irreparable injury.<\/p>\n<p>The day Cannon appointed Dearie as special master, Dearie entered his first order, setting a preliminary conference between the parties for Tuesday, September 20, 2022, at 2:00 p.m., with Trump and the DOJ directed to \u201csubmit proposed agenda items for discussion by docketed letter\u201d by close of business on Monday, September 19, 2022.<\/p>\n<p>Friday also saw the Biden administration file a motion to stay in the 11th Circuit Court of Appeals. That motion requests the appellate court put on hold Cannon\u2019s order that the government provide Dearie access to the 100 documents it maintains bear classification markings and that the government not use those documents in its criminal investigation until the special master completes his review.\u00a0<\/p>\n<p>The Biden administration\u2019s motion to stay filed with the 11th Circuit was weak, opening with hyperbole that would fail Appellate Advocacy 101.\u00a0<\/p>\n<p>The district court barred the government from \u201cfurther review or use of any seized materials for criminal investigative purposes pending a special-master process that will last months,\u201d the DOJ\u2019s brief opened. But while the entire process will last a little over two months, Cannon, to account for the government\u2019s claimed concerns, directed the special master and the parties to address the 100 documents the government maintains were marked classified first. The court\u2019s order also allows for interim reports, meaning that that portion of the review could be done within a week or two.<\/p>\n<p>The Biden administration\u2019s false framing of the delay as \u201cseveral months\u201d lessens the strength of its argument. The DOJ lawyers also set themselves up for an especially damaging counter by Trump\u2019s legal team given the speed with which the special master is working. And should Trump\u2019s attorneys submit to the special master a detailed \u201cagenda item\u201d on Monday that proposes an immediate review of those documents, the DOJ will be hard pressed to argue that a brief delay will harm national security.<\/p>\n<p>The government\u2019s argument of urgency also proves unconvincing, first because, as noted above, the special master is moving quickly. But second, the DOJ\u2019s argument that \u201cthe criminal investigation is itself essential to the government\u2019s effort to identify and mitigate potential national-security risks,\u201d rings hollow.<\/p>\n<p>However, even accepting the Biden administration\u2019s claim that national security demands its criminal investigation continue unabated, that rationale does not support the DOJ\u2019s second request: that the government be allowed to withhold the 100 documents purportedly marked classified from the special master\u2019s review.\u00a0<\/p>\n<p>In making this argument, the DOJ repeats many of the arguments made to, and rejected by, Judge Cannon, and it does so without addressing the trial court\u2019s reasoning. Most significantly, the Biden administration repeats its argument that all of the rationales for appointing a special master are \u201ccategorically inapplicable to the records bearing classification markings.\u201d The DOJ\u2019s brief then asserts: \u201cThe markings establish on the face of the documents that they are not Plaintiff\u2019s personal property.\u201d<\/p>\n<p>This argument, however, ignores Cannon\u2019s counter, that she is unwilling to \u201cadopt\u201d the government\u2019s premise that \u201call of the approximately 100 documents isolated by the Government (and \u2018papers physically attached to them\u2019) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them.\u201d<\/p>\n<p>Here are two distinct possibilities that the review by the special master could establish (or rule out). First, some of those 100 documents may not actually bear classification markings. Second, some (or all) of the 100 documents may bear classification markings but clearly and indisputably are no longer classified.\u00a0<\/p>\n<p>For instance, Trump\u2019s travel itinerary from his November 2019 Thanksgiving trip to Afghanistan to visit the troops, while highly secret before his surprise journey, no longer constitutes classified information. Alternatively, some (or all) of those 100 documents marked classified could be <em>copies<\/em> of documents from the <em>Crossfire Hurricane <\/em>investigation that Trump <a href=\"https:\/\/trumpwhitehouse.archives.gov\/presidential-actions\/memorandum-declassification-certain-materials-related-fbis-crossfire-hurricane-investigation\/\">publicly<\/a> declassified. If so, those copies are Trump\u2019s personal property. Both these possibilities alone justify review by the special master and neither even reach the question of privilege.\u00a0<\/p>\n<p>The Biden administration ignores these possibilities, however, arguing in its motion to stay that because it has declared the 100-some documents bear classification markings, no further review by the special master is needed. Half the country finds the DOJ and FBI untrustworthy, though, especially when it comes to Trump. Thus, it would be in the public\u2019s best interest for the special master to review those documents and address any dispute between Trump and the government concerning the proper category into which the documents fall.<\/p>\n<p>Such a review by the special master also will not harm the Biden administration. While the DOJ claims that \u201crequiring disclosure of classified records to a special master and to Plaintiff\u2019s counsel would impose irreparable harm on the government and the public,\u201d it fails to show how. If those records were in the possession of the national archive, Trump could review them personally. And Trump\u2019s lawyers and the special master will have the requisite clearance to review the documents.\u00a0<\/p>\n<p>Further, Cannon already notified the parties that she will enter a protective order, as necessary, to ensure that the information, to the extent it needs to remain secret, does. The Biden administration also has little room to claim concern over keeping the specifics of what is in those documents confidential given the numerous government leaks to media outlets.\u00a0<\/p>\n<p>The 11th Circuit Court of Appeals should deny the Biden administration\u2019s motion for a stay and allow the special master review to proceed. That outcome will be the only way to regain the trust of the American people.\u00a0<\/p>\n<hr class=\"wp-block-separator\" \/>\n<p>\n  Margot Cleveland is The Federalist&#8217;s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. <\/p>\n<p>Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize\u2014the law school\u2019s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. <\/p>\n<p>As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>The race is on between the Biden administration, which on Friday filed a motion to stay the special master\u2019s review of some 100 documents the FBI seized from Trump\u2019s Mar-a-Lago<\/p>\n","protected":false},"author":499,"featured_media":1646490,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"","fifu_image_alt":"","footnotes":""},"categories":[],"tags":[],"class_list":["post-1646488","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1646488","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/499"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=1646488"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1646488\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/1646490"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=1646488"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=1646488"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=1646488"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}