The Three Ways the NARA-Lago Special Master Is Putting the Screws to Trump

Photo courtesy of Fox News

“Careful what you wish for.”

That could well be the dominant theme for Trump in the NARA-Lago matter, now being sorted by Special Master Judge Raymond J. Dearie, a federal judge for the Eastern District of New York. Rewinding a bit, it was Trump who claimed that a Special Master was needed to oversee and sort through his assertions of privilege and his demands that personal documents be returned to him following the FBI search and seizure of documents, including many top secret and classified ones, from his Florida residence. 

It was an early victory for Trump to win this motion before Judge Aileen Cannon of the Southern District of Florida, who was widely criticized for her convoluted order that appeared to give preferential treatment to the former president who appointed her. That criticism including a sharply worded ruling by the Eleventh Circuit that undid a key part of her order. But now that Trump got his wish and the Special Master has dived into the matter, the process is proving less than ideal for Trump and his attorneys. 

So far, the Special Master’s Case Management plan is already putting pressure on Trump in three ways. Let’s take a look and enjoy the moment together.

Trump’s Unsupported Claim that Evidence was Planted

Not long after the search and seizure of documents from Mar-a-Lago, Trump suggested strongly that FBI agents could have planted evidence at the scene. “Everyone was asked to leave the premises, they wanted to be alone,” Trump wrote to his followers right after the search, “without any witnesses to see what they were doing, taking or, hopefully not, ‘planting.’”

Trump repeated this claim far more stridently and affirmatively on his “Truth Social” platform on September 8. “They leak, lie, plant fake evidence, allow the spying on my campaign, deceive the FISA Court, RAID and Break-Into my home, lose documents, and then they ask me, as the 45th President of the United States, to trust them," Trump railed.

Special Master Dearie was not impressed. He asked Trump to certify by Friday, September 30, 2022 whether the Detailed Property Listing provided by the government of items taken from Mar-a-Lago was a full and accurate accounting of what was seized. Specifically, he is requiring an affidavit or declaration from Trump verifying the inventory or listing any items on it “that plaintiff asserts were not seized” in the search. Otherwise put, he has placed the burden on Trump to come forward with any evidence he has that there are items in the list that were not taken from Mar-a-Lago but rather were deliberately planted, as he has claimed.

Conversely, and rather troubling for Trump, if the former president asserts that the FBI indeed took classified documents from Mar-a-Lago, just as they indicated on the list, this would be an admission that Trump in fact had such documents improperly at Mar-a-Lago to begin with—a clear violation of the law. That’s quite the legal pickle.

Trump’s attorney predictably is howling that this is unfair. In a letter objecting to the Case Management Plan, James M. Trusty (no small irony in the name) wrote Judge Dearie complaining that nowhere in the assignment order appointing him as special master did Judge Cannon state that the plaintiff rather than the government should produce such a statement. Therefore, Trusty argues, Dearie is in excess of his authority. (Note: When you’re reduced to telling the Special Master he is actually not so special, you’re probably in trouble.) Trusty also noted that Trump has no means of actually accessing the documents bearing classification markings, and so he can’t complete the certification in time. This is a claim that has some merit, in my view.

How this gets resolved will be a question hashed out by Judge Dearie with the parties, but it’s already clear that Dearie wants Trump to come forward with actual evidence to support his wild, out-of-court claims that there are documents in the list of inventory that were not actually ever at Mar-a-Lago.

Trump’s Unsupported Claim that he Declassified Documents

A second claim that Trump has made out-of-court concerns Trump’s startling and widely lampooned assertion that he “declassified everything” that he sent to Mar-a-Lago. Following the search on August 8, 2022, Trump’s office released a statement claiming that Trump had issued a “standing order” while in office that documents taken to his residence would instantly be declassified. No one (except Trump aide and chief sycophant Kash Patel) apparently has ever heard of such an order, and Trump’s lawyers cagily avoided any such claim before the court, arguing instead that addressing the issue would mean substantiating a possible defense prematurely, as no charges have yet been filed.

Recently, on Fox News’s Sean Hannity show, Trump repeated his blanket declassification assertion. “There doesn’t have to be a process, as I understand it,” Trump told Hannity. “If you’re the president of the United States, you can declassify just by saying it’s declassified,” he added. “You’re the president—you make that decision….I declassified everything.” Trump even observed that the president can declassify documents “even by thinking about it,” creating a whole new genre of memes.

During a hearing last week, however, Judge Dearie again wasn’t really having it. He told Trump’s lawyers that he would require them to provide actual evidence that the documents in question were declassified, or he would presume they were not. “I guess my view of it is, you can’t have your cake and eat it,” Dearie remarked.

The Eleventh Circuit backed this up. In their ruling granting the government’s motion to lift the stay that Judge Cannon had placed upon using some 100 classified documents in the Department’s ongoing criminal investigation, the panel of judges unanimously observed that there was “no evidence that any of these records were declassified,” and further called out Trump’s lawyers, who had “resisted providing any evidence that he had declassified any of these documents.”

It isn’t clear yet whether Trump and his lawyers will submit a declaration supporting Trump’s out-of-court claims about a blanket declassification. Barring such evidence, Special Master Dearie appears poised to declare that all of them remain classified—a potentially devastating legal blow to Trump, who certainly wants to hang on to the fiction of “I declassified everything” as a defense should charges be brought.

Trump’s Unprecedented Claims of Executive Privilege

Legal observers have been saying for weeks that Trump’s assertion of executive privilege is entirely bogus because, as a former president, he has no right to possess any documents owned by the government and therefore has no possessory interest in the documents seized. But Trump caught a break with Judge Cannon, and he obtained the right to have a special master review the documents not just for attorney-client privilege, which is common, but for executive privilege, which is unprecedented.

But Special Master Dearie isn’t making this easy for the Donald either. In his Case Management Order, Dearie has asked Trump to identify which privilege, attorney-client or executive, applies to which document. That is an eminently reasonable request because the review will have to consider wholly different legal arguments depending on the nature of the privilege claimed.

On the documents claimed under executive privilege, Dearie is requiring Trump further to distinguish between documents that are shielded from disclosure to those outside the executive branch on the one hand, and those the executive branch itself allegedly cannot even review on the other. This gets to the heart of a bizarre argument that Trump made and Judge Cannon accepted: that there are some documents over which one part of the executive branch (the Justice Department) is restrained from review because another part of it (the former president) claims privilege. That, too, is an unprecedented claim, and Dearie wants Trump to say which kind of executive privilege is which.

The Justice Department is content to sit back and enjoy the squirming Trump himself invited and let Judge Dearie press Trump on the weirdest and most unsupported parts of his claim. “Plaintiff brought this civil, equitable proceeding,” the Justice Department wrote in a letter to Dearie. “He bears the burden of proof. If he wants the special master to make recommendations as to whether he is entitled to the relief he seeks, plaintiff will need to participate in the process.”