Now... I Am The Master

by Dar ul Harb, Esq.

Well, I’m not¹… but Senior Judge Raymond Dearie was appointed Special Master in the Mar-a-Lago documents matter on Thursday, and on the same day, the U.S. District Court for the Southern District of Florida denied the government’s motion for a partial stay of the court’s temporary injunction prohibiting further use of the seized documents in the DOJ’s criminal investigation, at least regarding those documents having classification markings. The government really doesn’t want to have to produce those documents to anyone, even a former FISA judge like Judge Dearie, or to President Trump’s attorneys. As expected, the government has now appealed the district court’s denial of its motion for partial stay to the 11th Circuit.

(The government certainly does seem to fear Judge Dearie using judicial Force to have a look at their classified records, presumably because of what he would find.)

I now have reviewed all the pleadings regarding this battle over the partial stay, and have a few observations. The government has filed a fairly strong motion in the 11th Circuit, but interestingly (in a law geekery way), the motion is not characterized as a “emergency” motion under the 11th Circuit local rules, presumably because it couldn't meet the "emergency" test (or the government wasn't certain it could, and didn't want it to fail because of that).  Also, to be an "emergency motion" under the 11th Circuit rules, you have to call it that. 

(h/t @ProfMJCleveland)

It’s also still not clear that the order appointing the special master is an appealable “final order,” so this motion for partial stay pending appeal may be in support of something the government is procedurally unable to appeal anyway.

The prong they weren't sure they could meet was apparently the first one, "the motion will be moot unless a ruling is obtained within seven days."  The parties haven't met with the Special Master yet to determine a date certain for turning over the documents for his review, so there's no way of knowing whether that date would meet the "moot unless ruled on within seven days" prong of the "emergency" test. That first meeting is scheduled for Tuesday, September 20.

In their now-denied motion for partial stay in the district court, which I discussed briefly last time, the government narrowed its argument to what they expected would have the strongest chance of success, trying to keep the “documents having classified markings” from being reviewed by the Special Master, and from having to be disclosed to President Trump’s attorneys, arguing that the court overreached in temporarily preventing the USA from using the documents bearing classification markings in its criminal investigation, because that portion of the order “will cause the most immediate and serious harms to the government and the public.” (p.2 of district court motion).

As I discussed previously, the government used what one might call a Jedi “mind trick” in their first footnote to its motion in the district court, by announcing that the “records bearing classification markings” would be referred to as “classified records” throughout. Kind of a mind trick for those reading the main body of the motion to pay attention that references to “classified records” actually means “records bearing classification markings,” which, the motion says, are “a discrete set of just over 100 documents” and “the very subject of the government’s ongoing investigation.” (p.2 of district court motion). Unlike in the district court, the USA’s appellate motion right out of the gate unambiguously describes the “documents marked as classified” as the government’s “own highly classified records” (p.1 of appellate motion).

In the district court, the government had stated in its “mind trick” footnote (fn.1) that “a classification review of these materials was in progress at the time of the Court’s order but has not been completed.” In the motion in district court, the government had also said that “uncertainty regarding the bounds of the Court’s order and its implications for the activities of the FBI has caused the Intelligence Community, in consultation with DOJ, to pause temporarily this critically important work.” (p.3 of district court motion). Are we to understand now that the classification review has been completed sometime within the last week, and the “documents marked as classified” are definitively believed by the government to be “classified records”? Or are they overselling their case in the first line?

The USA asserts in the appellate motion that “the criminal investigation is itself essential to the government’s effort to identify and mitigate potential national-security risks” (p.3)  The government’s primary argument below as to why the criminal investigation and the national security risk assessment are “inextricably intertwined” is that the classification review to determine the classification status of the documents is conducted in cooperation with the FBI, and necessarily involves looking at the content of the documents, which could also inform the criminal investigation.  This argument presumes that the classification review is affected by the court’s order, and that if the classification review was suspended as a result of the order (as was claimed in the “mind trick” footnote), that’s what poses a danger to national security.²

In the motion in district court, the USA cites to U.S. v. Nixon, 418 U.S. 683, at 713 (1974) for the proposition that “[A]lthough this Court suggested that Plaintiff might be able to assert executive privilege as to some of the seized records, Supreme Court precedent makes clear that any possible assertion of privilege that Plaintiff might attempt to make over the classified records would be overcome by the government’s ‘demonstrated, specific need’ for that evidence.” p.2.

Trouble is, the cited language from the Nixon case says something different:

“…when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial…”

(418 U.S. 683, at 713, emphasis added)

Three points: President Trump doesn’t yet know what specific “documents bearing classification markings” the government is talking about; leaks to the media³ (and the government’s own claims of ‘national security implications’) suggest that “military or diplomatic secrets” are indeed implicated (making the citation to Nixon inapposite, because the discussion in the Nixon case applied to ‘ordinary’ assertions of executive privilege, not assertions of executive privilege related to ‘military or diplomatic secrets’); and the Nixon case pre-dates the enactment of the Presidential Records Act (PRA), making it arguably a stale precedent. Under the PRA, a President now has a statutory right to impose restrictions of up to 12 years (a “restricted access period”) on the public disclosure of their own Presidential records, with access during that time controlled as provided in the statute.

One could certainly imagine “Presidential records” under the PRA which could contain military or diplomatic secrets and which would also be covered by executive privilege, such as internal discussions within the Trump White House regarding policy and military options related to North Korea’s nuclear weapons program.

The district court’s order, according to the USA’s appellate motion, “irreparably harms the government by enjoining critical steps of an ongoing criminal investigation and needlessly compelling disclosure of highly sensitive records, including to Plaintiff’s counsel.” p.3  But if the restricted access period under the PRA is to be given any force at all, the former President must be informed of the content of the documents so that he can determine what “rights, defenses, or privileges” he can invoke over their access.  The PRA doesn’t contemplate that the government can simply seize Presidential records during the restricted access period, without giving the former President the opportunity to raise any “rights, defenses, or privileges.”

The government continues to ignore that the Presidential Records Act is the controlling statute in this dispute, and that the Biden Administration short-circuited the civil PRA process. As scathingly put in a footnote to President Trump’s response to the USA’s motion in the district court:

“While the discovery of classified material in files containing Presidential records should not have been at all surprising, NARA allegedly became concerned about national security interests within weeks of the turnover by President Trump of fifteen boxes of records. Yet no notification was provided to Congress at that time. Moreover, rather than adhering to the PRA, NARA made an immediate criminal referral. Given the circumstances involve the possession by a former President of his own Presidential records at a location which had long been utilized to conduct the business of the United States, the pursuit of all other available civil mechanisms would, respectfully, have been a better exercise of prudential judgment.”

fn. 8. p.16

The PRA is what attorneys for President Trump primarily rely on in their response, saying that “the ultimate disposition of all the ‘classified records,’ and likely most of the seized materials, is indisputably governed exclusively by the provisions of the Presidential Records Act (‘PRA’)”, which “contains no provision authorizing or allowing for any criminal enforcement.” “What is clear regarding all of the seized materials is that they belong with either President Trump (as his personal property to be returned pursuant to Rule 41(g)) or with NARA, but not with the Department of Justice.” (p.3 of response to motion in district court).

The government in its appellate motion continues to insist they don’t have to turn over the “records bearing classified markings” to the Special Master, because there’s no way they belong to President Trump. “[T]he court’s suggestion that there are ‘factual and legal disputes’ about the records bearing classification markings, […] is incorrect and not relevant in any event.”“Plaintiff lacks standing at least as to the discrete set of records with classification markings because those records are government property, over which the Executive Branch has exclusive control and in which Plaintiff has no property interest.” pp.9-10.

This ignores that the records may be declassified records, in which case their markings do not reflect their legal status, or copies, and the government has previously said that many such documents contain President Trump’s handwritten notes, which means that they could be “presidential records” within the meaning of the Presidential Records Act, which are subject to the PRA’s restricted access period (see e.g., redacted search warrant affidavit, at ¶47 and ¶58). Or, President Trump could have considered them personal records, with the notes reflecting his own thought process about them, which he may not have communicated with anyone else.⁴

In the government’s motion in the district court, they argued that “[classified] records clearly belong in government custody and, as a matter of national security, must be fully accessible to the Executive Branch.” (p.7 of district court motion). By asserting that the “[documents marked as classified]…must be fully accessible to the Executive Branch,” the government seems to assert that these are the only such copies, and that by retaining them, President Trump has denied the Executive Branch “access.” But at least during the 12-year “restricted access period” under the PRA, access to all Presidential records is controlled by its terms, and generally "subject to any rights, defenses, or privileges which the United States or any agency or person may invoke." The statute seems to imply oversight by a court, just as is being demanded here, except in this case, the DOJ already has the records, and is ignoring that it didn't go through a procedure that would have adjudicated access.

In recounting the history of the dispute to the 11th Circuit, the government reveals again the involvement of the Biden White House in setting the investigation in motion. “DOJ then sought access to the 15 boxes under the PRA’s procedures governing presidential records in NARA’s custody. A44-A45; see 44 U.S.C.§ 2205(2)(B).” p.4-5.  Here, the government cites to the access provision of the PRA which doesn’t have to do with subpoenas in a criminal case (§ 2205(2)(A)), but with the current President seeking to access the records for “information that is needed for the conduct of current business of the incumbent President's office and that is not otherwise available.” (§ 2205(2)(B)).  Who made the determination that the documents were “not otherwise available”? And as with the provision dealing with subpoenas, the incumbent President’s access during the restricted access period is also “subject to any rights, defenses, or privileges which the United States or any agency or person may invoke.” (For more on the structure of the Presidential Records Act, see my earlier discussion here.)

In his response to the government’s motion at the district court, President Trump’s attorneys made what I consider to be a killer point in President Trump’s favor.

“[I]f any seized documents (including any purported ‘classified records’) are Presidential records, President Trump (or his designee, including a neutral designee such as a special master) has an absolute right of access to same under the PRA.”

p.4, of response.

President Trump may or may not be entitled to the return of the seized “documents marked as classified,” but if they are Presidential records, Judge Dearie cannot be denied access to them, because if President Trump wants to delegate to him the access he lawfully has under the PRA, he can do so.

In their appellate motion, the USA continues to argue that the classification markings decide the question of whether there is any point in having the special master review the “documents marked as classified.”

“Plaintiff has never disputed that the government’s search recovered records bearing classification markings. […] Instead, the district court cited portions of Plaintiff’s filings in which he suggested that he could have declassified those documents or purported to designate them as ‘personal’ records under the PRA before leaving office. […] But despite multiple opportunities, Plaintiff has never represented that he in fact took either of those steps—much less supported such a representation with competent evidence. The court erred in granting extraordinary relief based on unsubstantiated possibilities.” 

pp.15-16 of appellate motion.

Even if President Trump could assert executive privilege against the executive branch over the “documents marked as classified,” the government in their motion in the district court had argued that “Plaintiff himself declined to assert any claim of executive privilege over the classified records at the point when it would have been appropriate to do so,” namely when he got the grand jury subpoena back in May. “Plaintiff cannot now maintain—following the government’s seizure of additional classified records that Plaintiff failed to produce—that classified records obtained in the search, which were responsive to the grand jury subpoena, are shielded from the government’s review by executive privilege.” (p.11 of district court motion). The USA is essentially arguing the equitable doctrines of “unclean hands” (he did something wrong) and, particularly, “laches” (he waited too long) without explicitly saying so, as reasons that President Trump cannot obtain equitable relief from the court regarding these particular records.

Pretty hard for President Trump to present evidence about specific records when the government won’t even reveal exactly which records they are, or what they contain.  Not to mention regarding these particular documents, the government simply seized everything, without going through the procedures under the PRA which would have allowed adjudication of any “rights, defenses, or privileges” on the front end.  President Trump is operating at a distinct information deficit that the government seems intent on maintaining.

“[R]equiring disclosure of classified records to a special master and to Plaintiff’s counsel, […] would impose irreparable harm on the government and public.” (p.20, of appellate brief). In support of this statement, the government cites to cases involving disclosure of classified information to defense attorneys for a terrorist defendant, and foreign nationals accused in espionage cases. This is inapposite, to say the least, and shouldn’t really even pass the “laugh test.” Again, the government would not be revealing any secrets to President Trump he’s not already seen before, and unlike those other cases, President Trump or his designated representative has a lawful right of access to these documents under the PRA, if they’re Presidential records —even if they’re classified.

As another example of irreparable harm that’s been done to the criminal investigation, and hence the intelligence community’s national security review, the government says that “[t]he injunction also appears to bar the FBI and DOJ from further reviewing the records to discern any patterns in the types of records that were retained, which could lead to identification of other records still missing.” (p.18 of appellate court motion).

So the government controls over classified documents are so bad that classified records could be missing that they still don’t know about, such that they have to see if they can figure out a “pattern” to determine what might be missing?  That’s very reassuring, isn’t it?

In one place in the government’s motion in district court, the USA seemed to argue their comprehensive raid may have missed something. They wrote that "...the injunction against using classified records in the criminal investigation could impede efforts to identify the existence of any additional classified records that are not being properly stored --which itself presents the potential for ongoing risk to national security." (p.17 of district court motion).

How's that work, exactly? Is one document that they already have going to have a sticky note on it that says "go look in the wine cellar for further classified information on this topic?"

—end—

1. …at least as far as predicting the court: Judge Cannon neither granted the government’s motion, nor ignored their deadline, as I’d suggested last time. Could we say she stuck to her guns? …sorry.

2. The government in their appellate motion is also upset that they can’t be sure how to comply with the district court’s temporary injuction. “The court offered little guidance on how FBI and DOJ personnel should bifurcate their efforts, forcing them to discern that line for themselves on pain of contempt should the court later disagree with their judgments—at threat that will inevitably chill their legitimate activities.” p.19 

Yes, my heart bleeds a little for the risk of the FBI and DOJ being held in contempt of court, but I suppose you could ask the court ahead of time if you have questions whether certain actions are in conflict with its order?

3. In a footnote to their response to the government’s motion for partial stay at the district court, President Trump’s attorneys cited the recent “foreign nuclear secrets” story leaked to The Washington Post.  I’m glad someone did.

“The Government is apparently not concerned with unauthorized leaks regarding the contents of the purported ‘classified records,’ see, e.g., Devlin Barrett and Carol D. Leonnig, Material on foreign nation’s nuclear capabilities seized at Trump’s Mar- a-Lago, WASH. POST (Sept. 6, 2022), https://www.washingtonpost.com/national-security/2022/09/06/trump-nuclear-documents/, and would presumably be prepared to share all such records publicly in any future jury trial. However, the Government advances the untenable position in its Motion that the secure review by a Court appointed and supervised special master under controlled access conditions is somehow problematic and poses a risk to national security.”

fn.1

4. Yeah, O.K., so he’s writing personal thoughts on classified documents? What better place to keep them private? “Dear Diary: If you’re unauthorized and looking at this, you’re also looking at a long term in federal prison…”