Last night, Department of Justice filed in opposition to the appointment of a Special Master in Florida. It used the filing to add new facts and allegations to the public record, including the statement that “obstructive conduct occurred” at Mar-a-Lago by concealing or moving documents. The Department makes many of the same claims that it used to opposed the release of a redacted affidavit, claims shown to have been misleading and exaggerated after the magistrate ordered the release.  Notably, this filing contained details that were likely redacted in the affidavit but just released on the public record.

In the most direct challenge to the former President’s public claims, the Justice Department claimed that he and his staff had failed to turn over classified material and that the Department had no choice but to search areas outside of the storage room. Indeed, it says that it found three classified documents in Trump’s desk without indicating the level of classification or subject matter.

It also said that the Trump staff barred the FBI from looking at documents in the storage room after turning over classified information to them.

“As the former President’s filing indicates, the FBI agents and DOJ attorney were permitted to visit the storage room. See D.E. 1 at 5-6. Critically, however, the former President’s counsel explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained.”

The filing also adds new disclosures on past claims of declassification by Trump. It states that “[w]hen producing the Fifteen Boxes, the former President never asserted executive privilege over any of the documents nor claimed that any of the documents in the boxes containing classification markings had been declassified.” That was in January 2022.  It then alleges that, in the June 3, 2022 meeting, “neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege.” It is not clear if or when the Trump team made the declassification claim.

The filing also includes this notable allegation:

“The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.”

The Justice Department told the court that it was vindicated in its suspicions and that

“the FBI, in a matter of hours, recovered twice as many documents with classification markings as the ‘diligent search’ that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter.”

It is not clear from the filing if the FBI has evidence of intentional acts of concealment as opposed to negligence in keeping track of such material. However, stating that the FBI believes that “obstructive conduct occurred” is very serious, particularly if the FBI also believes that this conduct was knowingly or intentional obstructive.

The main point of the filing was to address the court’s indication that it wanted a special master appointment. I have supported such an appointment, even at this late date.  Indeed, I felt that this was one of the four failures of Attorney General Merrick Garland in not taking proactive steps to assure that public that this was not a pretextual raid to collect sensitive material for other investigative purposes. It would still have considerable value in the case.

The special master could divide these documents into groups of classified material, unclassified but defense information, and unclassified material outside of the scope of the alleged crimes. The last category would then be returned. That accounting could also offer basic descriptive information on the material without revealing their precise content or titles. The special master could describe material as related to national defense or nuclear weapons (as was previously leaked government sources). The government has already leaked that there was nuclear weapons material being sought. Confirming such general details can be done without giving details on the specific information or even titles for the documents to protect national security. In national security cases, including cases where I have served as counsel, such indexes and summaries are common.

Notably, this filing includes the picture which is being widely distributed. It can, however, leave an obviously misleading impression.

The picture could be seen by many that secret documents were strewn over the floor when this appears the method used by the FBI to isolate classified documents.  However, putting that initial concern aside, there is a question as to the purpose of the attachment. It seems entirely superfluous in releasing this one picture. The picture is Attachment F and the textual reference on page 13 simply says

The arguments raised by the Justice Department are not just familiar but transparently weak. The government argues that Trump lacks standing because the records belong to the United States, not him. However, that is the point. The court is trying to determine who has a right to these documents. The Justice Department itself recognizes that it may have gathered some attorney-client privileged documents in this ridiculously broad search. It allowed the seizure of any box containing any document with any classification of any kind — and all boxes stored with that box. It also allowed the seizure of any writing from Trump’s presidency.

Moreover, the court itself has ample authority to appoint a special master to help sort through such material.

The government and its allies, in my view, misconstrue the impact of Federal Rule of Criminal Procedure 41(g), which provides

” A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.”

However, the Special Master is being used by the Court to determine the status, classification, and categorization of the documents. The Court has the inherent authority to seek such assistance in an independent review of material. Special masters are fairly common helping courts establish the record for ruling on the merits of motions. It may turn out that most or all of this material is properly held by the government, but a Special Master can help establish the record for that decision, including the status of material acknowledged as potential attorney-client material.

The Justice Department also makes the same type of arguments used to oppose the release of a single line of the affidavit in redacted form.  It claims that both its investigation and national security would be harmed. That is even less compelling here. A special master would be reviewing documents in a secure facility and would presumably have a clearance. Many of us who have handled national security cases have been cleared for TS/SCI material.

Notably, however, the Justice Department states in a footnote that “the government is prepared, given the extraordinary circumstances, to unseal the more detailed receipt and provide it immediately to plaintiff.” That sounds like (as with the redacted affidavit) that they clearly can release more information, particularly to avoid a Special Master appointment.

The use of such arguments after the release of the redacted affidavit only undermines the arguments further. The Justice Department insisted that the court should not release a single line of the affidavit and that any substantive disclosure would unleash a parade of horribles, from damaging national security to sacrificing witnesses.

For those of us who have litigated cases against the Justice Department, it was an all-too-familiar claim by a department notorious for over-classification and over-redaction arguments. For a week, media pundits mouthed the same exaggerated claims and challenged those of us who argued that it was clearly possible to release a redacted affidavit; liberals suddenly shuddered at the thought of doubting the Justice Department.  Then the government produced a redacted version that caused no such harms while confirming important facts in the case.

Notably, some of the details in this filing on meetings before the August raid may have been part of the affidavit but redacted.

The Department also claims that it does not need to return personal material to the former president because the evidence of “commingling personal effects with documents bearing classification markings is relevant evidence of the statutory offenses under investigation.”  That is again transparency weak. The government has recorded or documented such intermingling and make a record for any trial without refusing to return material that is neither classified nor otherwise subject to government confiscation or removal.

The Department also makes other incomplete or dubious arguments. For example, it asserts that no executive privilege claim can be made by a former president: “The former President cites no case—and the government is aware of none—in which executive privilege has been successfully invoked to prohibit the sharing of documents within the Executive Branch.” That is because this issue has not been fully litigated. It has been a long debate over the ability of former presidents to claim privilege. Indeed, under the Presidential Records Act, such assertions are honored over documents in its possession.

What is clear from this filing is that Merrick Garland will not change his refusal to seek modest steps to assure the public that this investigation is neither pretextual nor political. Instead, he is “all in” on these sweeping and untenable claims of the need for absolute control and secrecy. What is missing is real leadership to address the deep concerns of millions of Americans over the past records of the Department and its current investigation.  Instead, Garland has required courts to force the release of a redacted affidavit and the possible appointment of a special master.

What is clear is that Garland’s “trust us” mantra has done little to assuage concerns. Indeed, that seems almost comical to many people, given the Crossfire Hurricane debacle and the fact that this investigation is being handled by the same section.

The court should reject the arguments against the appointment of a special master and allow for an independent review of these documents.

Here is the filing: doj-response-to-trump-special-master

This column was edited to add the language from Rule 41 and the basis for such motions.