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Be careful what you wish for.
These wise words of caution might be hitting home for former President Donald Trump. He and his legal team asked for an independent special master to review documents found at his Mar-a-Lago property as part of a Department of Justice investigation into Trump’s handling of classified material. The special master was meant to screen for potential attorney-client or executive privilege concerns.
Federal judge Aileen Cannon sided with Trump and appointed semi-retired Judge Raymond Dearie to the role, delivering the former president a legal win.
The Trump team got the appointment of a special master as they asked for. They even got a specific special master that they themselves proposed in Dearie. And now he seems to be irking them simply by doing the job they wanted him to do.
During a Sept. 20 hearing, Dearie pressed Trump’s lawyers on the former president’s claim — made in public but not explicitly in court — that he declassified the sensitive material found at his home. Despite their client’s repetition of this claim on TV and social media, Trump’s lawyers have yet to provide evidence of this in official proceedings. They have only alluded generally to an argument that presidents have the broad authority to declassify material.
“If the government gives me prima facie evidence that this is classified, and you decide not to advance a claim of declassification … as far as I’m concerned that’s the end of it,” Dearie said to Trump’s legal team at the hearing last week.
After back and forth with Dearie pressing for answers on this question of declassification, he told Trump’s lawyers that “you can’t have your cake and eat it.” That is a decent summary of Trump’s attempted arguments so far, from an independent arbiter that team Trump wanted and team Trump selected.
On top of the special master developments, Trump and his legal arguments also received a rebuke in the U.S. Court of Appeals for the 11th Circuit last week. That Sept. 21 decision overruled an order from Cannon that put the Department of Justice’s review of 100 documents with classified markings on hold. That review can now continue.
Like Dearie, these judges also pointed out Trump’s failure to actually produce evidence of his claims of declassification.
“Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified,” the appellate judges wrote. “In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal.”
Again, “no evidence” of claims and “red herring” both aptly describe Trump’s overall approach in court and in the court of public opinion so far. He has claimed that he declassified the materials without providing evidence, going as far as to suggest he can declassify documents just by thinking it during a TV interview last Wednesday night. And even if he somehow did issue a sweeping declassification that relevant officials didn’t seem to know about, that wouldn’t suddenly mean he was allowed to have presidential documents that ultimately still belong to the American people.
