“Trump’s request has already backfired”: Trump’s handpicked special master rebukes his claim on docs

“You can’t have your cake and eat it,” Raymond Dearie told Trump lawyers after they refused to provide evidence

By Igor Derysh

Managing Editor

Published September 21, 2022 9:40AM (EDT)

Former president Donald Trump speaks to supporters at a rally to support local candidates at the Mohegan Sun Arena on September 03, 2022 in Wilkes-Barre, Pennsylvania. (Spencer Platt/Getty Images)
Former president Donald Trump speaks to supporters at a rally to support local candidates at the Mohegan Sun Arena on September 03, 2022 in Wilkes-Barre, Pennsylvania. (Spencer Platt/Getty Images)

Federal Judge Raymond Dearie, the special master tasked with reviewing thousands of documents seized at Mar-a-Lago, rebuked former President Donald Trump's lawyers during a hearing on Tuesday for failing to back up his dubious claim that he "declassified" the records while still in office.

Dearie, who was selected by U.S. District Judge Aileen Cannon from Trump lawyers' list of proposed special masters, earlier this week called on the former president's team to turn over any details related to Trump's repeated claim that he "declassified" secret documents that he took home after leaving the White House. Trump's lawyers, who have not mentioned the declassification claim once in their court filings, balked at the request in a letter to Dearie, writing that they may save the details for a defense argument in a potential prosecution.

Dearie held his first hearing in New York on Tuesday and called out Trump's legal team for refusing to provide evidence for the president's key claim in the case.

"My view of it is: you can't have your cake and eat it," Dearie told Trump's lawyers, according to Politico. Dearie said that if the Justice Department provides evidence of classification and Trump's lawyers don't provide any evidence of declassification, the documents would be considered classified. "What business is it of the court? As far as I'm concerned that's the end of it," Dearie said.

Dearie took issue with Trump lawyers' arguments that they were saving details about the claim for a potential defense.

"I can't allow litigation strategy to dictate the outcome of my recommendations," he said.

Trump attorney Jim Trusty argued that it was "premature" to consider the issue right now because "it's going a little beyond what Judge Cannon contemplated in the first instance."

Dearie again rebuked Trump's team.

"I was taken aback by your comment that I'm going beyond what Judge Cannon instructed me to do," he said. "I think I'm doing what I'm told."

Legal experts praised Dearie's handling of the Trump team's attempt to dance around the former president's claims.

"The part that reassures me the most is that [Dearie] gets it on the classified information," Ryan Goodman, a professor at NYU Law School, told MSNBC. "He's not giving the Trump side any excuses in a certain sense, it is time for them to pony up."

Former federal prosecutor Renato Mariotti predicted that "it doesn't look like Trump will achieve anything significant from this process."

Former U.S. Attorney Barb McQuade noted that Trump's lawyers may be hesitant to identify documents Trump claims to have declassified because it could amount to perjury.

"Lies in court may be punished with sanctions or even criminal charges," she tweeted. "They appear to have painted themselves into a corner."

Even George Washington University Law Professor Jonathan Turley, who has publicly defended Trump amid numerous legal scandals, was taken aback by the lawyers' failure to produce any evidence.

"The court's request for support of the declassification was highly predictable and the absence of support at this stage is striking," he tweeted. "Even if Trump is claiming an oral order, they could have offered a declaration from Trump or a staff member on such an order."

Ultimately the matter may be irrelevant to the DOJ investigation since the three statutes cited in the search warrant for Mar-a-Lago do not require mishandled information to be classified to trigger prosecution.

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During another point in the hearing, the DOJ and Trump's lawyers squabbled over the Trump team's demand to view classified documents seized by the FBI last month.

Trusty asked Dearie to start the process to get proper security clearances for Trump's lawyers. Dearie said that he takes national security issues "very seriously" and that he would like to resolve the issue without looking at the classified documents.

Justice Department lawyer Julie Edelstein cited a "need-to-know" standard for certain highly classified documents.

"It's kind of astounding to hear the government say the president's lawyers don't have a need to know," Trusty bristled. "I believe we have a need to know, absolutely."

Edelstein said that some of the documents were classified beyond the "Top Secret" level.

"Some of the documents are so sensitive that members of the team investigating possible offenses here have not yet been able to see them," she said.

"It's not just a matter of having the clearance. It's a matter of need to know," Dearie said. "If you need to know, you will know."

Conservative attorney George Conway, a frequent Trump critic, called Dearie's handling of Trump's legal team "brutal."

"Judge Dearie is just destroying Trump's lawyers here," he tweeted.

The hearing came as the DOJ appeals Cannon's original order to appoint the special master and put the criminal investigation into the documents on hold. The DOJ in a filing argued that Trump is implying he "could" have declassified the records before leaving office but has not provided any evidence to show that he "actually took that step." The filing cited the legal team's refusal to cite evidence to the special master, adding that even if the documents were declassified it would not affect the criminal investigation.

"This Special Master gambit does not appear to be going well for [Trump] at all," tweeted national security attorney Bradley Moss.

"Trump's request for a special master has already backfired, putting him in a position where he ended up declining, in writing, to state whether he declassified any documents," wrote Mariotti, the former prosecutor. "Now DOJ is using that to undermine his argument on appeal. Self-inflicted wound by Trump's team."

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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