Tuesday, September 6, 2022

I told you so


 - by New Deal democrat

Not much economic news this week. I’ll post an update on COVID later, but for now, a follow-up on my Mar A Lago search warrant post last week.

Last week I concluded my observations as follows:

Despite how devastating the DoJ response apparently is, it is important to remember that this judge, on Friday [actually Saturday, sorry], publicly declared that she had made up her mind on an issue before the other party had an opportunity to respond to the request, without even proper service on the defendant, without asking for any sworn factual assertions by the plaintiff, and to provide information to her about, inter alia, highly classified documents that goes beyond normal search warrant practice.

“There is no substantial reason to believe that she will change the conclusion she obviously arrived at last week. So prepare for the judge to completely disregard the information put forward by the DoJ, and issue an unprecedented, broad, and novel ruling.”

On Saturday, on another forum, I followed up with the following prediction:

“I see her issuing a broad order, including executive privilege, and under a rubric of “extraordinary circumstances” and “equitable jurisdiction,” essentially placing herself in the role of “supervising judge” overseeing anything having to do with this search warrant. She will have to avoid relying on the PRA; avoid enjoining the government from taking certain actions (because that’s appealable); and finding that this case is sui generis for purposes of avoiding Nixon as controlling precedent.”

And sure enough, here is the money quotation from her ruling:

“Pursuant to the Court’s equitable jurisdiction and inherent supervisory authority, and mindful of the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented, the Plaintiff’s Motion is Granted in Part….

“The Court takes into account the undeniably unprecedented nature of the search of a prior President’s office…”

The Court literally hit all of my buzzwords in those two sentences. 

The only thing I got wrong is that she *did* enjoin the government “from further review and use of any of the materials seized from Plaintiff’s residence on August 8, 2022, for criminal investigative purposes pending resolution of the special master’s review process as determined by this Court.”

So, what happens now? The same practicing lawyers who Genuflected before the Majesty of the Law two weeks ago, assuring us that this judge would quickly laugh this case out of court, now suggest that the DoJ should probably just “power through” the special master process.

Nuh uh. Here’s why.

First of all, the Court ordered that:

On or before September 9, 2022, the parties shall meaningfully confer and submit a joint filing that includes:

a. a list of proposed special master candidates; and

b. a detailed proposed order of appointment in accordance with Rule 53(b), outlining, inter alia, the special master’s duties and limitations consistent with this Order….”

Again, I have no special knowledge of criminal procedure, but let’s just examine the behavior of the parties, particularly Trump. 

And here is the simple fact: it is in Trump’s interest to drag this process out as long as possible, because until the process is concluded, the government may not “review or use” any of the materials. This in my opinion likely includes arresting and charging Trump. The Court’s order is unclear, but given her behavior so far, it is at least quite likely she would view arrest and/or charging as being in contempt of her order. I would not like to be the DoJ attorney having to appear in front of her for that reason.

So, here’s what will happen. The parties will *not* in fact be able to agree on “proposed special master candidates.” Trump will propose clearly biased candidates that the DoJ will never agree to. This will give rise to further litigation before the judge, which will delay the matter further; and since the judge has already clearly shown she will bend over backwards for Trump, the likelihood is she will use her “supervisory authority” to resolve the deadlock by appointing a pro-Trump master.

For the same reason, it is not in Trump’s interest to agree to *any* limitations on the “special master’s duties.” He wants the special master to be able to declare any documents “privileged” and further to both preclude the government from making any use of them, and even further, to return the documents to him.

So there will be litigation over that in front of a biased, pro-Trump judge. More delay. More likely pro-Trump rulings.

See how this works?

Next, There is already much discussion in legal Twitter about the fact that the Judge did not give any parameters as to how the special master could determine if “executive privilege” applies. As far as I can tell, there are none that could apply. The special master is going to have a tabula rasa on which to write; all of which will be further subject to this judge’s “supervision,” no doubt exercised to declare as much as possible privileged for Trump.

Indeed, Trump will now claim executive privilege as to *all* the documents, and refuse to budge. 

Result: this creates yet another issue that can be litigated for a full year or two - as will any decisions by the special master adverse to Trump.

Further, because the judge is ultimately reserving the issue to herself under her undefined “equitable” “supervisory authority,” this will also create a huge morass of issues, that could take several years to untangle via further litigation.

In the meantime, so long as her restraining order on the DoJ is in effect, I don’t see how they can prosecute Trump for anything having to do with these records, because the prosecution would “make use” of the records.

One final note about the judge’s bias. In her opinion, she says she is granting the motion so that there will be “at least the appearance of fairness and integrity.”

Excuse me? Shouldn’t this judge first and foremost be concerned about *actual* fairness? Try to read that sentence without arriving that the conclusion that the judge has already determined that the entire seizure of documents from Mar a Lago was substantively unfair. There’s simply no other way to read it. Unfair to whom? Clearly not the DoJ! So this judge has already determined that the seizure was substantively unfair to Trump, but at least her order can create a fair-appearing process to resolve it.

That’s how this “special master” process is going to play out, unless Cannon’s order is reversed, and promptly, by a higher court.