Federal Judge Orders Appointment of Special Master and Halts Use of Seized Mar-a-Lago Material by Prosecutors

In another defeat for the Justice Department, a federal court has ordered not just the appointment of a Special Master but halted the use of the seized Mar-a-Lago documents by prosecutors until the legal status of these documents is established (The ongoing intelligence security review of classified material can continue). As with the compelled release of a redacted affidavit, the Justice Department seriously overplayed its hand (as it did in earlier filings) in claiming that an appointment would undermine national security and making extreme, unestablished legal arguments. The ruling by U.S. District Judge Aileen Cannon will not necessarily change the ultimate trajectory of the case but it will force critical reviews and rulings on issues from attorney-client privilege to executive privilege.

For weeks, I have been writing about both the value of an appointment of a Special Master to reassure many in the public of an independent review and to address unresolved and difficult questions over these documents. While brushed aside by many legal experts, the prosecution of Donald Trump would require courts to address some long-unresolved questions.

The appointment and review will cause delay but it was unlikely that the prosecutors would bring charges until after the midterm election anyway due to the long-standing policy.

The order also does not halt the criminal investigation, only the use of the documents. Prosecutors can still interview witnesses on what was known to be the content of boxes, what steps were taken to allegedly move or conceal material, and other issues critical to establishing crimes of obstruction.

Many faculty on the left continue the curious objections to a court seeking review of the FBI or not accepting its overbroad claims of authority. It is a bizarre shift that we have seen in other Trump investigations where liberals suddenly express shock that a court would countermand sweeping national security claims or seek to review the Justice Department’s review of material for privilege. It does not matter that there appears to have been mistakes by the taint team and that privileged material (as well as an assortment of private material from medical records to tax records) were seized.

The same breathless coverage followed the order that we have seen in prior Trump-related matters. AEI’s Neil Ornstein suggested that Judge Cannon is now engaged in obstruction by simply ordering a third-party review. The over-wrought response to this order is par for the course over the last six years.

Harvard Professor Laurence Tribe (who recently said that Trump could clearly be charged with the attempted murder of former Vice President Michael Pence) declared that an order to appoint a special master to review the documents is analogous to the Dred Scott decision as an abuse of judicial power.

Others have impugned Judge Cannon’s integrity and dismissed her as a “Trump judge.” Ironically, many of these same experts denounced Trump for such attacks on “Obama judges” when they ruled against him.

Most are dismissing the order as utterly without legal merit. Stephen I. Vladeck, a law professor at University of Texas and CNN contributor, expressed outrage at “an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation.” (Vladeck was one of the experts who previously supported an array of criminal allegations against Trump and pushed a false claim related to the clearing of Lafayette Park). While it is admittedly less common to use a special master in a criminal case, it is not “unprecedented” for a court to conduct in camera reviews of seized material. In this case, the court wants to use a special master to perform that function. Moreover, special masters are commonly appointed in the federal courts in an array of cases where judges need assistance in creating a record for a ruling on motions.

Keep in mind that 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. Judge Cannon notes that the Justice Department’s own taint team missed privileged material and rejects the government’s assurance that it still caught the errors (emphasis added below):

“Counsel from the Privilege Review Team characterized them as examples of the filter process working. The Court is not so sure. These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material. The Government’s other explanation—that these instances were the result of adopting an overinclusive view of potentially privileged material out of an abundance of caution—does not satisfy the Court either. Even accepting the Government’s untested premise, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the Investigative Team. Perhaps most concerning, the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team [see ECF No. 40]. In sum, without drawing inferences, there is a basis on this record to question how materials passed through the screening process, further underscoring the importance of procedural safeguards and an additional layer of review.

Notably, Judge Cannon also rejected the blanket denial of possible executive privilege arguments by the Justice Department and correctly notes that the assertion of some privilege by a former president remains unresolved in controlling precedent.

The Justice Department may appeal the decision. Special masters are routinely appointed as an extension of the authority of the court to help create a record upon which the judge can rule. It is not common to see this type of review at this stage but this is hardly your common criminal case given the intersecting constitutional and attorney-client privilege claims.  Such appointments are generally left to the discretion of the trial court by appellate courts.

Yet, that does not mean that appellate judges might not tailor the order (or even block it entirely). That would not surprise me any more than a decision upholding the authority of Judge Cannon to appoint special master. There are good-faith arguments against executive privilege claims and other issues. For example, appellate judges could question the scope of the bar on the use of the documents. They could loosen the ruling to allow the use of some documents with classification markings or require threshold determinations to free up such material.

However, the appointment of a special master in my view was the right thing to do. It was unfortunately another step that Attorney General Merrick Garland could have taken but refused to do so.  Garland has had at least four opportunities to take modest steps to assure the public on the department’s motives and means in this controversy.

You can read Cannon’s full order here.

 

353 thoughts on “Federal Judge Orders Appointment of Special Master and Halts Use of Seized Mar-a-Lago Material by Prosecutors”

  1. The report is that President Trump’s medical records were seized In the raid.

    It is illegal to take possession of medical records under the Hippa Law, a privacy law.
    The Medical records were not included and not specifically mentioned or listed in the over broad, “General” search warrant and therefore improper notice was given and the search was illegal, even if you consider the warrant as a court order.
    Under the fruit of the poisonous tree doctrine, all evidence seized should be excluded, the search invalidated, and all items should be returned to President Trump.

  2. The subtext in all of the commentary is how amazingly easy it seems to be for the “law professors” on CNN or MSNBC to be so totally corrupted by the Democratic party establishment that they would make statements even an 8th grader would find ridiculous. Who actually believes Laurence Tribe is an authority on the law?

    1. Every legal expert including conservative ones are pointing out that judge Aileen cannon’s ruling is badly flawed. It shows blatant favor for Trump by making the ridiculous argument that the DOJ’s retention of these documents harms Trump’s reputation. He committed a crime, refused to cooperate, and refused a subpoena to turn in those documents. The judge is putting Trump’s potential harm to Trump’s reputation over the possible exposure of highly sensitive classified information.

      That argument is quite fallacious in itself, especially coming from a judge appointed by Trump. Trump chose that judge specifically because he knew she would time in his favor.

      1. .”Every legal expert including conservative ones are pointing out that judge Aileen cannon’s ruling is badly flawed.”

        Every legal expert, Svelaz? Then you say, including conservative ones. Is it every expert or not? This foolishness is the type of nonsense you write.

        ” He committed a crime”

        What is the crime? Be specific because your allegations are mostly meaningless statements that make you feel good, and any honest jurist gets sick to their stomachs.

        “refused to cooperate”

        He cooperated in June and saw he would cooperate more if needed. This dispute is between what is essentially a librarian and the former President. There is no question former presidents have rights to documents and have the clearance to read them.
        That is part of the PRA. Eventually, these papers go to the presidential librarian.

        This dispute is for the courts to handle, not law enforcement.

        “, and refused a subpoena to turn in those documents. “

        Perhaps you don’t know, but this type of argument belongs in the courts. If you have a dispute with your roommate regarding the proper ownership of property, the courts make the decision. In this case, the fight is between a librarian and a former president.

        “The judge is putting Trump’s potential harm to Trump’s reputation over the possible exposure of highly sensitive classified information.”

        What information is not permitted to be held by the former President?

      2. You say “He committed a crime” when he has been convicted of nothing. You have already convicted him in your own biased mind. It is unsurprising you then attack Judge Cannon when she takes the normal unbiased view that you are innocent until proven guilty and that procedural norms should be respected including the right to have the DOJ not have access to Trumps medical records, attorney-client privileged documents, press clippings, etc. The reason the Fourth Amendment was put into place was historically because the British would do sweeping searches of anything they wanted with no probable cause as part of their campaigns to try to find something, anything they could use against their opponent – just as the DOJ did. But the Fourth Amendments says that you cannot do that – you have to be specific in what you search for and need to pre-specify it, not conduct witch hunts.

    2. “Who actually believes Laurence Tribe is an authority on the law?”

      – GioCon
      _______

      Joseph Goebbels

  3. All appeals to authority are fallacious.
    That is trivially proven, and you lost that argument.
    Logic is a system of reasoning similar to but more fundimental than mathematics.

    You proved my point by citing as evidence of a legitimate appeal to authority the assrtion of expert mathematitions regarding Mr. Weis’s proof of Fermat.

    Weis’s proof is valid and correct if it follows the laws of mathematics. It is not if it does not.
    That is binary, and the ONLY determining factor

    An appeal to the opinon of alleged experts is a means of establishing Trust not Truth.
    We TRUST Weis’s proof because experts tell us to.
    But we only KNOW that it is true because if follows the laws of mathematics.

    Arguments that are not fallacious lead to knowledge.
    Those that are fallacious could lead anywhere – including on occasion to Trust.
    They could even lead to truth, or not, and that is the point. A fallacy can not with certainty lead to truth.

    There is no valid mathematical proof that includes and appeal to authority.
    There is no valid logical argument that includes and appeal to authority.

    Many invalid mathematical proofs lead to things that turn out to be true.
    That does not make them valid.

    1. I did not claim that Weil’s proof is correct because experts say it is, as it’s entirely possible that there’s a flaw that experts have overlooked. That you misrepresent what I actually said is par for the course. Learn the difference between saying “X is true” and “it’s reasonable to believe that X is true.” These are not interchangeable, nor did I imply that they are.

      “All appeals to authority are fallacious” is false. Some appeals to authority are fallacious and others are NOT fallacious. It depends on the nature of the claim.

      When someone refers you to a discussion by an expert, THAT is not an appeal to authority in the first place. It is simply a referral to consider the expert’s argument. That argument might or might not be valid, but experts’ arguments are a key source of learning in the world.

      1. “I did not claim that Weil’s proof is correct because experts say it is, as it’s entirely possible that there’s a flaw that experts have overlooked. That you misrepresent what I actually said is par for the course. Learn the difference between saying “X is true” and “it’s reasonable to believe that X is true.” These are not interchangeable, nor did I imply that they are.”

        The debate is over whether an appeal to authority is a fallacy. It is. You are not very good with logic – as evidenced by your remarks about.
        “it’s reasonable to believe that X is true.” is not logic. It is an actual fallacy, you can check the list of informal fallacies to find the best fit.
        Most of what you wrote above is correct, it is also irrelevant.

        ““All appeals to authority are fallacious” is false. Some appeals to authority are fallacious and others are NOT fallacious. It depends on the nature of the claim.”
        Nope, you lost that argument already, and you provided the amunition.

        “When someone refers you to a discussion by an expert, THAT is not an appeal to authority in the first place. It is simply a referral to consider the expert’s argument.”
        To the extent what you are saying is correct – which is not often, it is also irrelevant – by your own statement.
        Again you are not very good with logic.
        Lets simplify your argument above

        X is not an appeal to authority.
        QED all appeals to authority are not fallacy.

        that is an obvious non-sequitur.

        “That argument might or might not be valid, but experts’ arguments are a key source of learning in the world.”
        Again irrelevant.

        You seem to think that I have argued that no one should every pay any attention to experts.

      2. There are a number of assertions in your post that are standalone correct.

        Stringing together a random collection of true assertions is not an argument either.

        If I responded to your claim that all appeals to authority were not fallacy with

        But some birds are blue

        That would be correct, It would not be an argument.

  4. There is a scene in Terminator II where the terminator bashes out the window of a car he is going to steal and breaks the steering column. In a later scene, John watches him and then finds the keys, waves them in front of him and says, “Are we learning yet?”

    Having federal agents busting into any person’s home, arresting them in their underwear, cleaning out their files, and putting them in leg irons and handcuffs, as has happened in cases of people who are journalists, lawyers, politicians is taking it a step too far. This method might work for a gun runner or drug lord who is surrounded by body guards.

    In the case of a former President of the United States, especially in something that has not happened before in history requires that there is an appearance of an untainted, methodical operation that has considered all conflicts of interests, etc. This was not done. There should have been a taint team, carefully selected that does not answer to any federal agency. The magistrate who issued the warrant should have been above reproach. Instead, the magistrate had just recused himself from a recent case involving the 45th President on 22 June 2022.

    This has nothing to do with concern about secret documents or anything of the nature, especially since this has occurred 20 months after the government officials packed up the boxes and they were shipped to Florida. This has everything thing to do with intimidation and exacting a pound of flesh….timing.

    If this were a properly prepared search, there would be no stone unturned. The search warrant would be narrow, and extraordinary steps would have been taken to consider every contingency and to give absolutely no appearance whatsoever of bias. This was not done. Not even close. If this is such a grave concern and it took the FBI 20 months to move, then there should be no hurry whatsoever for procedures to be put in place and care given to dot every I and cross every t. I suspect that they are very frustrated because this was this was intended to happen before the midterm elections. It won’t be long for more leaks. There is no danger now, the records are out of the former President’s office and in their hands. Who cares if it takes another year or two? What’s the difference?

    Seeing the government with this much power (altering court documents, hiding information, slow walking investigations, etc.) should deeply concern every citizen, regardless of their political party. I would feel the same if this was Bush, Clinton, or Obama. Where is the ACLU? They are silent. Even consider that comedians and satirists such as SNL have been silenced. If there ever was a time for people like the late Mort Drucker (Mad Magazine), Robin Williams, George Carlin, etc. to use unvarnished humor to excoriate these characters and organizations it is now. Why the silence? I can hear a pin drop.

    The best way to cure a headache is to drop a bowling ball on your foot. With the media’s apoplexy regarding this event, there is less attention to border disaster, rise in violent crime, economic hardships that are a direct result of this administration’s myopic politics, rising international tensions, attack on the family structure, failing schools, faltering supply chain, drastic rise in dangerous drugs, and too many to name.

    1. E.M.,

      There are big holes in your argument. The government DID take extraordinary steps to take care that this wasn’t going to become the public mess it is now. For a year an a half NARA asked Trump to return these documents. They quietly negotiated, asked, insisted that these documents needed to be returned. They gave ample opportunity to comply with these requests. The DOJ got involved when Trump refused to cooperate with NARA. Again, the government gave Trump another opportunity to turn in documents that did not belong to him. Even the FBI quietly visited MAL and took 15 boxes. This was after Trump dragged his feet and slow walked any attempts by NARA to get these documents.

      When Trump finally relinquished 15 boxes of documents and declared that it was everything they had to the FBI and “secured” other materials with a padlock NARA discovered that there were classified documents in that first batch. Upon discovering classified material a subpoena was issued. Trump refused to cooperate. Then a witness inside MAL notified the DOJ of the TS/SCI documents still in Trump’s possession. The evidence must have been serious enough to convince the DOJ and a judge to issue a warrant. The seriousness of being illegally in possession of those documents REQUIRED a search warrant be issued. Trump already attested to the FBI that all documents were turned in. Obviously Trump lied. Lying to the FBI and being in possession of highly sensitive classified material AFTER being given multiple opportunities to quietly return these documents pretty much negated they need to be mindful of showing deference to Trump.

      Trump lied to the FBI. That was his biggest mistake. Once he did that the government had no inclination to give Trump special treatment. Keep in mind that the government spent two and a half years trying to get these documents that did not belong to Trump.

      1. Svelaz,

        You’re mistaken about “Trump already attested to the FBI that all documents were turned in. Obviously Trump lied.” Trump is not the one who signed the certification. Christiana Bobb, Trump’s Custodian of Records, is the one who signed it, and she based it on statements made to her by unnamed person(s). She is now a witness about who made that claim to her, convincing her to file a false certification.

      2. You do realize that a violation of the PRA (Presidential Records Act) constitutes a “civil” violation, and NOT a “criminal” violation. You know that, right? It’s the DOJ trying to make it a “criminal” act, but it is not!

      3. “The government DID take extraordinary steps to take care that this wasn’t going to become the public mess it is now.”
        Nope, there was no necescity for the warrant in the first place. The Judges court order not only reveals that Trump has multiple challenges, but that the FBI did not stay constrained within their over broad warrant, and have increased the likelyhood that the entire warrant gets tossed. The only thing worse than getting an almost general warrant, is treating it as a general warrant.

        As several “experts” have suggested searching Melania’s cloths was really stretching things, Taking cloths was absurd.
        There are very very very few possibilities where Melania’s cloths could possibly be evidence.

        Next DOJ has flattly asserted they are not returning anything – that is a stupid position to take. They have already addmitted to 500 pages of attorney/client material as well as Trump’s medical records.

        They had not made sufficient efforts to recover material without a warrant. That also thwarted Trump’s opportunity to assert the claims that the special master is sorting for. The fact that they took so much that they should not have
        is more proof they were creating a spectacle.

        There was no need for heavily armed agents in SWAT gear. Frankly there was no need for large numbers of agents.

        Absolutely Trump istaking advantage of this – as well he should. Absolutely this is making DOJ/FBI/NARA/WH look bad – as well it should.

        ” For a year an a half NARA asked Trump to return these documents. They quietly negotiated, asked, insisted that these documents needed to be returned. They gave ample opportunity to comply with these requests.’

        And to this very moment is is STILL legally debateable what they are allowed to have.
        NARA was free to go to court at any time. They did not EVER.

        The subpeona issued was a DOJ GF subpeona NOT one from the non-existant NARA vs Trump lawsuit which is how NARA must enforce a civil claim regarding these documents.

        “The DOJ got involved when Trump refused to cooperate with NARA.”
        Nope, DOJ got involved in February when Biden waives Trump’s executive priviledge claim. And the WH not NARA refered this to DOJ for Criminal prosecution.

        “Again, the government gave Trump another opportunity to turn in documents that did not belong to him. Even the FBI quietly visited MAL and took 15 boxes. This was after Trump dragged his feet and slow walked any attempts by NARA to get these documents.”

        All a false narative. Many people have documented that Trump personally told agents in June to take whatever they wanted.

        regardless, you continue to claim that it is clear that DOJ/NARA/FBI is inarguably entitled to these documents.
        You do not seem to grasp that in the US, each of us is ENTITLED to assert various claims of legal rights and that Government may not take property in our possession without our claims – whether right or wrong being adjudicated in court.

        From the start WH/DOJ/FBI/NARA has studiously avoided courts. The Subpeona is from a GJ, Not a court. It was issued by a US Attorney, and likely not even presented to the GJ, It certainly never went in front of a Judge. Nor did DOJ seek to have a judge enforce the Subpeona instead going to a Magistrate – not a judge seeking a warrant.
        The WH/NARA/DOJ/FBI never gave Trump any due process. There was no oportunity until now for real judicial review or consideration of these competing claims of ownership. And as the actual judge now finally reviewing this has stated, Trump is entitled to that review – even if his claims are wrong. Something you do not seem to grasp.

        Worse this has been what the DOJ/FBI have been doing from the start. The J6 committee – which violates Congresses rules for itself, has the power to issue subpeonas, But those subpeoned ALWAYS have the power to object to the subpeona.

        Th proper due process resolution when one party beleives another has failed to comply with a subpeona is to go to court and get a court order. Subpeona’s are demands, they are not orders, Subpeona’s are not legally enforceable without court orders.

        But instead of going to court to get an order the J6 committe went to DOJ and DOJ/FBI arrested people – in the must publicly humiliating way. And in atleast one case they then prosecuted them.

        It is near certain that prosecution will be overturned – simply because the J6 committee did not seek a court order to compel.

        In our system neither the executive nor the legislative branches have both the authrotity to make demands and to enforce those demands without judicial revue. There is no exception for – But the claims are poor. Courts decide that. Attorney’s merely Argue that.

        The Biden WH is operating lawlessly. They are littlerally parroting King George III.

        “When Trump finally relinquished 15 boxes of documents and declared that it was everything they had to the FBI and “secured” other materials with a padlock”
        The FBI did not secure anything – they made recomendations and Trump followed them.

        You have your timeline screwed up, it is difficult to address the rest.

        “NARA discovered that there were classified documents in that first batch. Upon discovering classified material a subpoena was issued. Trump refused to cooperate.”
        Incorrect, there remains to this date an unresolved legal debate over whether there are any classified documents, as well as whether Trump was allowed to have them. You are not free to presume that a legal challenge will be decided in your favor and
        skip the adjudication of that challenge.

        “Then a witness inside MAL notified the DOJ of the TS/SCI documents still in Trump’s possession.”
        So says the Warrant. Frankly the Magistrate should have released more of the affadavit as we have no idea whether there is any actual witness. DOJ/FBI are notorious at planting stories in the press and then using those stories to get warrants. They did that with the carter page FISA warrant and we already know they did that In this warrant. What has not been redacted includes news stories – not FBI investigitive results. That is improper, News stories are not good enough.

        “The evidence must have been serious enough to convince the DOJ and a judge to issue a warrant.”
        A naked assertion. Many “experts” – inlcuding former FBI and US attorney’s have reviewed the warrant and said that it is way overbroad and should not have been issued as it was, or that DOJ/FBI had better have some really damning evidence redacted – like Photo’s of Trump offering nuclear plans to the Saudi’s – because anything less is going to be a huge problem for DOJ.

        yesterday I heard one Bush and one Clinton US attorney say that their read of the recent judges order puts DOJ at serious risk of having the entire Warrant thrown out, and losing Everything.

        This is what happens when you over step, when you take shortcuts, when you do not follow the rule of law.

        Ordinarily I would think Trump’s claims of Executive privildge are weak and the limited existing case law goes against him.
        But DOJ has created a new case, with different fact patterns. They have created nearly the perfect test case to see the prior rulings either overturned or narrowed. Further that resolution might appeal to the courts, as it is the simplest and quickest way for them to resolve this.

        The easiest court resolution is to say – the Current president can not waive privilege for ex-presidents.
        That does not result in a total Win for Trump. but it makes NARA/WH/DOJ/FBI start over.

        Further it is consistent with prior court decisions – the COURTS have ruled against assertions of priviledge by ex presidents,
        They have not given NARA DOJ FBI or the WH the power to wish executive priviledge away.

        One of the problems that those on the left like you have is failing to understand that what you beleive is a good argument, is NOT sufficient to jump process, to skip the requirement that your argument be considered by a court in an adversarial hearing and then decided by the court – no the WH not DOJ not NARA.

        Even winning does not give you the power to skip the courts and abandon due process.

        “The seriousness of being illegally in possession of those documents REQUIRED a search warrant be issued.”
        Nope. Nor are the elements you claim established.
        There are assertions that there are classified documents. there is evidence, but that has neither been proven, nor otherwise adjudicates by a court. there are counter claims that have not been weighed by a court, and evidence that has not been presented.

        “Trump already attested to the FBI that all documents were turned in.”
        Yup,
        “Obviously Trump lied.”
        False, Nor is this limited to Trump – several attorney’s have also. These are highly reputable attorneys, with better credentials than the FBI and DOJ attorney’s involved.

        If the question is credibility alone – They win.

        “Lying to the FBI and being in possession of highly sensitive classified material AFTER being given multiple opportunities to quietly return these documents pretty much negated they need to be mindful of showing deference to Trump.”
        You keep assuming as true things that have never had any adversarial hearing in court.

        In fact strongly working against you is that NARA/DOJ/FBI/WH have done everything possible to avoid adjudication of Trump’s claims in court. that strongly suggests that the governments claims are weak.

        Due process has not been followed. The government has done everything in its power to game the system.
        The documents are in MAL, yet it is the DC office that is running this case.
        NARA, DOJ, FBI have studiously avoided getting into any adversarial court proceeding where they would have to face attorney’s aerguing they are wrong, and a judge who might decide against them.

        That looks bad, as the current judge has noted.

        NOW DOJ is in court whether they like it or not, one that is not so friendly to them, and they are doing very badly.

        That court has ordered the Special master to segregate material that would be subject to an executive priviledge claim.
        That is by far Trump’s weakest claim. But it is also the claim that will stop DOJ dead in its tracks.

        And this court appears to be saying that claim must be adjudicated before DOJ can procede.

        “Trump lied to the FBI.”
        You keep making claims like this – as if they are proven. They are not.
        Trump has repeatedly asserted that any documents at MAL were declassified by him.

        “That was his biggest mistake.”
        The actual big mistake was NARA not going to court in the first place. That is the proper process.

        All of this increasingly looks like asetup – a deliberate effort by the WH to manufacture a crime.

        ” Once he did that the government had no inclination to give Trump special treatment. Keep in mind that the government spent two and a half years trying to get these documents that did not belong to Trump.”

        You keep making obviously false claims. trump is not entitled to special treatment. But he is entitled to due process. Just like everyone else.

        The govenrment is not entitled to escalate a civil dispute into a crime, by jumping over steps in the process.
        You say government spent 2 1/2 years – incorrect, but more important is what they did NOT do in that time.
        NARA could have gone to court to get these documents. They did not.
        DOJ could have gone to court to enforce he subpeona – they did not.

        They jumped to the most forceful and hamfisted means of proceding and they did so deliberately bypassing court adjudications of Trump claims.

        Whether you like it or not – this all looks bad,

        Worse this can and probably will blow up on DOJ/FBI/Biden.

        Democrats impeached Trump over much less than this.

        Increasingly DOJ has put itself into a position were is must win on every single argument, which is not likely,
        Or not only lose everything, but face repercussions.

        DOJ/FBI told the current court that they had already completed their priviledge review and provided purportedly non-priviledged documents to agents.

        If true – that could be contempt of court.
        Even if not contempt, any agents that have access to documents that a special master later decides are priviledged will be removed from the case. It is entirely possible that DOJ/FBI will be required to transfer the entire case to a different district with new agents and US attorney’s because of mistakes in handling priviledged documents.

        Or they could lose everything.

  5. It would be nice if LE had the integrity to do as the judge orders but there’s an elitism which bars such honesty.
    If the judge would order all materials returned (what I personally believe to be the correct course) then LE would make do with the thousands of copies they’ve already made.
    That the judge does the right thing unfortunately will have small chance of meeting with compliance.
    Medical records, attorney client communication and tax returns are already in political hands.

    1. Also, either the DOJ or the FBI is still “leaking.” I read an article this morning saying that “a person close to the FBI retrieval of documents from their raid of Trump’s residence show that there was a document that revealed a foreign nation’s nuke capabilities, although the document does not name the foreign nation.” So, leaking is still going on! But since no nation is named, I don’t see how that can be “Top Secret!”

      1. Joe what’s up with Bill Barr? He’s s a deep state CIA Hack.

        The CIA is Hotel California you can check in but you can never leave. It’s not mistake the main street media is populated by “former” CIA agents.

        Psyop! MSM is nothing but indoctrinated and propaganda. Fox included.

        1. In the 1990s, Barr’s job was to whitewash the federal murders at Ruby Ridge. James Bovard at American Conservative: “When the Justice Department won an initial appeals court victory in the case in 2000, federal judge Alex Kozinski warned in a dissent of a new James Bond “007 standard for the use of deadly force” against American citizens. The same court reversed that decision the following year. Kozinski, writing for the majority, declared: “A group of FBI agents formulated rules of engagement that permitted their colleagues to hide in the bushes and gun down men who posed no immediate threat. Such wartime rules are patently unconstitutional for a police action.”

          Does William Barr still endorse “wartime rules” and a “007 standard” that absolve federal agents for questionable shootings of Americans? Does Barr consider “illegal government killings” to be an oxymoron? Best of all, can Barr explain to us his understanding of the phrase “government under the law”?”

  6. This is a individual Queensland, Australia, perspective. Anyone in the past ten years who has taken an interest in the US Democrat Party will realize that it is a thoroughly corrupt and evil political party. The Democrat track record is so impregnated, inter alia, with Clintonian criminality and jaundice, that nearly everything that comes out of the Democrat Party is the FRUIT OF THE POISONOUS TREE. Donald J. Trump is a serious threat to the exposure of the Democrat Party and its criminality. The ‘Deep State’ will do ANYTHING to prevent transparency and the consequences that will no doubt follow. At the leadership level, the DoJ and FBI have been co-conspirators in the DEEP STATE, under Democrat Party cover. The Midterm results may see the Democrat Party exposed for what it is, a CRIMINAL CONSPIRACY. If the US voters do not save themselves from the evil of the Democrat Party by voting GOP at the midterms, they will have themselves to blame for the destruction of their once great country. MAGA.

  7. “The moderator is fine with Meyer’s nasty and insulting comments”

    Anonymous insults you ATS, not Meyer.

  8. All appears good regarding a “Special Master,” but we’ve been fooled before by so-called independent parties who end up acting like partisan hacks under the guise of impartiality. We shall see. Perhaps we will be treated to the classic “well, there was some wrongdoing, but not enough to warrant any severe penalties or causes of action,” thereby permitting egregious behavior to skate free once again.

      1. David, and Sulla and Marius were dictators before that. The days of a dictator like Cincinnatus were long gone. Caesar was right when he said he didn’t destroy the Republic. It was already gasping in the gutter.

          1. Mespo:
            Remember the proscriptions under Sulla. Members of the Senate were reduced to begging Sulla to please list the people he intended to kill so the rest could sleep at night. The republic was moribund if not already dead. By the way, the Senate continued to meet and have some influence long after 476 AD.

        1. iowan2:

          Some woke rebellion against the BC/AD designtion as “too Christian.” It’s “Before the Common Era” based on some old manuscripts and revived by those defiant of the Judeo-Christian culture of the West.

    1. Well, the Republic fell in 27 BC when Octavian took power. Christ was crucified in 33 AD. So “one of the first things” is a tad hyperbolic given two generations had passed during the time.

  9. Why the BS obfuscation Johnathan? They SPIED ON TRUMP in 2016, they lied and used the FISA courts, Obama used the Gov like a thug Authoritarian, and because he’s black you are afraid to tell the damned truth. Also, the courts have settled this, and you know it, an Obama appointed Judge held that anything the Clinton’s took with them were deemed to be HIS DOCUMENTS, and found against Judicial Watch. These are THUGS, and they stole the Election, and you know they did. Welcome to the Commie USA Mr. Turley.

  10. Has your brilliant proposal not been previously contradicted by the fact of the aforementioned pseudonymous account?

  11. Why are classified pictures being leaked? Also, Barr back at the microphone. DOJ loves to leak and loves to be on TV. Meanwhile Hunter and Hillary get all kinds of passes. ALL WE WANT ARE FAIR UMPIRES! Durham couldn’t walk any slower!!! But you can be McCabe, Clinesmith, and Hillary and enjoy special privileges. This is how Republics end.

    1. Understanding that: Wanting something you don’t have (Niccolò Machiavelli) is a powerful force, and that since the U.S. has not had a Female President,
      That alone can be the driving force behind Hillary (et.al.).
      It could be dismissed that the issue is a matriarch v. Patriarch battle, as ‘power’ is empirical. Rather in this case (Era) it appears to be a Diversity issue (Diversity of the Presidential Office) wherein the Female status is vacant. (Much like the latest SCOTUS Justice Appointment).

      Wherefore Hillary Clinton stands as a viable candidate. (IMHO)

  12. You know, I am not a lawyer, as so many are here. My wife went to law school, clerked for a judge in NYC years ago, and turned me on to this website. I have learned a great deal from her. She was born in another country, South East Asia, FYI, and not a Western one. She carries a tiny copy of the Constitution in her purse. I appreciate all of the deep insights on this blog from the actually informed and experienced, and I appreciate the Professor and his staff to the skies.

    The reason I post this: I am certain many of you have read a few of my posts – whatever, to each their own. I only share this to say I am precisely the kind of informed voter the DNC would like to pretend doesn’t exist. We do. We are many. And for our own reasons, we are paying attention. And we no longer vote dem. Neither does my wife’s family, from a distant South Asian country they left because they were educated people and did not want to be restricted by tyranny, and that’s a much bigger number than me.

    I am eternally grateful to Professor Turley, even when we disagree. Yes, young’uns, some of us have friends that do not align on the political spectrum, and we still love each other very much. Tell your professors and their binary bull**** to go to h***.

  13. I once needed three attempts at drafting a civil RICO complaint sufficient to convince a federal judge in the Southern District of Florida that I had properly pled a claim for relief. Fortunately, the rules contain a mechanism for amendments to pleadings. It is always the plaintiff’s burden at the outset of a case to allege facts which, if proven, will provide a cognizable remedy. And it is only at that point that a defendant is required to respond to the substance of the claim. That is part of what we call “due process,” and the rules are drawn to afford the parties plenty of opportunities to refine and hone their positions so that everyone knows what the case is about and no one can complain about the outcome except in limited circumstances.

    After a review of the record in this case, however, I’m beginning to wonder whether I simply haven’t drawn the right judges. Without taking a deep (and boring) dive into the procedural weeds, it appears that the court has managed the judicial equivalent of turning a sow’s ear into a silk purse for the former president. Judge Cannon basically filled in the blanks in Trump’s deficient complaint, announced an intention to grant some sort of relief before the case was at issue (indeed, unless I somehow missed it, actual service of process was an afterthought; maybe Truth Social has magically become an authorized efiling portal), asserted “equitable jurisdiction” without any sort of competent factual predicate, ignored the efforts of the special magistrate altogether, and created out of whole cloth what I will call the “special solicitude doctrine” applicable (at least initially) to former presidents who are subjects of criminal investigations, a wonderfully remarkable feat for an originalist. The court even managed to limit the unanimous ruling in United States v. Nixon, 418 U.S. 683 (1974) to sitting presidents. The practical effect of the order is that a former president has been afforded the right to claim a privilege he does not have in order to reclaim possession of property he does not own.

    With all due respect to Prof. Turley, my view is that this case is a procedural and substantive abomination.

    I am signing my comment because my last post appeared as Anonymous for reasons I don’t pretend to understand.

    Mike Appleton

    1. it appears that the court has managed the judicial equivalent of turning a sow’s ear into a silk purse for the former president

      We often have referred to Hillary as a cow, sow, heifer and female dog but never a silk purse. Then again she has also been referred to as a runt with a “c” but why bother mentioning the obvious as to Democrats perverting the Department of Justice and the Courts.

      James Comey sends his best

      1. Mike:

        “I once needed three attempts at drafting a civil RICO complaint sufficient to convince a federal judge in the Southern District of Florida that I had properly pled a claim for relief. ”
        (…)
        “Judge Cannon basically filled in the blanks in Trump’s deficient complaint, announced an intention to grant some sort of relief before the case was at issue (indeed, unless I somehow missed it, actual service of process was an afterthought; maybe Truth Social has magically become an authorized efiling portal), asserted “equitable jurisdiction” without any sort of competent factual predicate, ignored the efforts of the special magistrate altogether, and created out of whole cloth what I will call the “special solicitude doctrine” applicable (at least initially) to former presidents who are subjects of criminal investigations, a wonderfully remarkable feat for an originalist. The court even managed to limit the unanimous ruling in United States v. Nixon, 418 U.S. 683 (1974)”
        *****************************
        I had no idea your case involved a great matter of state such as when a politicized DOJ takes on a former and likely future POTUS at the behest of the opposing party and its likely candidate in opposition. Do tell how you case is of the same constitutional magnitude as this one. As for US v. Nixon, that was decided under Fed.Rule Crim.Proc. 17(c) which explored the scope of executive privilege when Presidential papers were subpoenaed in the face of a specific criminal charge – not a fishing expedition. In response and in 1974, Congress passed the Presidential Recordings and Materials Preservation Act (PRMPA) of 1974. That law was changed in 1978 and is the Presidential Records Act (PRA) of 1978 which governs Trump’s situation. The two cases could not be premised more differently and hence the judge paid little attention to the claimed precedent.

        Maybe this is why the judge had so much problem with your RICO complaint.

    2. Mike,

      There was a problem a couple weeks ago in either the WordPress system, its partner authenticator services, and perhaps elsewhere in that users’ login credentials were not passed along and this bug resulted in their comments sometimes posting as anonymous. I do not know the cause of this or if a solution was recently implemented.

      I did locate the comment you mentioned and have edited it by affixing your name in the author element.

    3. @Mike Appleton,

      While there is some truth that there is a bit of a luck in the draw when it comes to judges… in this case w.r.t Trump the judge didn’t make a purse out of a sows ear.
      Trump actually has a good case to get this tossed.

      The facts already before us show that the FBI blew it on this raid.
      The warrant was overly broad. It was a hoover vacuum. See a piece of paper? Suck it up.

      Were this really about a NARA issue… it would have been handled much differently.
      Clearly overreach on the part of the DOJ/FBI.

      You also seem to have conflated too many things into this.
      If you stick to the facts… the results of the Special Master will end up having this case tossed.
      -G

    4. In fact, this case is not dissimilar to an overdue charge from the library.

      As that noble and patriotic statesman, James Comey, once said, “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case,” (i.e. if Comey had indicted Hillary, Comey would have convicted Obama).

      Did I get this wrong, your belief is that corruption, if extant in this case as you imply, must favor communists (liberals, progressives, socialists, democrats, RINOs) only, and never conservatives (i.e. Americans)?

      Unreasonable prosecutors have brought this jurisprudentially and historically absurd, frivolous case.

      By all means, do continue attempting to block the forest with the trees.

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