“Put up or shut up moment”: Special master corners Trump's lawyers on his "planted" evidence claims

"This is really a test for Donald Trump," former prosecutor says, because his lawyers can't lie in court

By Igor Derysh

Senior News Editor

Published September 23, 2022 9:28AM (EDT)

Former President Donald Trump. (Erin Schaff - Pool/Getty Images)
Former President Donald Trump. (Erin Schaff - Pool/Getty Images)

The special master tasked with reviewing thousands of documents seized from Mar-a-Lago on Thursday demanded that former President Donald Trump's lawyers assert to the court whether the FBI lied about what they found.

Trump and his lawyers after the August 8 raid repeatedly claimed without evidence that the FBI may have "planted" evidence at Mar-a-Lago. Trump has largely backed away from that claim publicly, instead insisting that he may have "declassified" the documents found by the FBI — possibly just by "thinking" it. Federal Judge Raymond Dearie, who was who was chosen by Trump-appointed U.S. District Judge Aileen Cannon from a list proposed by Trump's lawyers, on Tuesday rebuked Trump's lawyers for refusing to submit any evidence of his declassification claim. Dearie on Thursday further challenged Trump's lawyers to back up the former president's "planted" evidence claims.

Dearie in an order gave Trump's legal team until September 30 to confirm whether they believe any of the seized items listed on the Justice Department's 11-page inventory list were incorrectly described and to submit "a list of any specific items set forth in the Detailed Property Inventory that Plaintiff asserts were not seized from the Premises."

"This submission shall be Plaintiff's final opportunity to raise any factual dispute as to the completeness and accuracy of the Detailed Property Inventory," Dearie wrote.

Dearie's handling of the matter has been a departure from Cannon's handling of Trump's motion to appoint a special master. Cannon never asked Trump's lawyers to back up his claims about planted evidence or declassification. Cannon had also blocked the DOJ from continuing its criminal investigation into the documents, but an appeals court on Tuesday lifted her order, writing that she had "abused" her discretion.

Trump in an interview with Fox News host Sean Hannity claimed that he had the power as president to declassify the documents just by "thinking about it," a claim entirely rejected by legal experts.

Dearie at a hearing on Tuesday rejected the Trump lawyers' argument that they cannot submit evidence backing up his claim because they have not yet reviewed the documents and because they may need to withhold the evidence for a defense in a potential prosecution.

"My view of it is, you can't have your cake and eat it," Dearie told Trump's legal team.

Trump in the Hannity interview also repeated his claim that the FBI may have planted evidence during the search.

"Did they drop anything into those piles" he questioned, "or did they do it later?"

Trump has hinted that he may release surveillance video from the search. Hannity asked Trump if there was video to back up his claims.

"Nah, I don't think so," Trump replied.

Dearie on Thursday suggested he may hold a hearing where "witnesses with knowledge of the relevant facts" could be called to testify about the materials seized from Mar-a-Lago.

Former U.S. Attorney Barbara McQuade said Dearie's order shows he's "not taking any of the nonsense that's been put forward by Trump's lawyers."

"That really is a put up or shut up moment," she told MSNBC. "Fine, you are making this allegation. But if so, tell us what that is. Say so in a document that is under oath in court. it's time to stop playing games and making accusations. You can say what you want in the media. But here we are in court and we deal with facts here. And so if there is a factual dispute, you need to say so under oath and then we'll hear from the government and we'll litigate that."

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Former federal prosecutor Elie Honig said that while Trump and his lawyers can get away with "fudging the truth in their public statements," the court battle will require them to prove their claims.

"You can see the tension in Donald Trump's legal team because they will not say the things in court about declassification and planting that he is saying because lawyers have an ethical obligation," he told CNN. "You cannot make a false statement to a court. You can argue aggressively for your client, you could try to poke holes in what the other side is doing, but you cannot lie. This is really a test for Donald Trump."

National security attorney Bradley Moss pointed out that Trump's headaches in the special master proceedings are of his own making.

"Trump made it an issue. He brought the litigation. He raised the issue of possible declassification," Moss told NewsNation. "To the extent that he's being asked to lay out his defense prematurely, that's a problem of his own making."

Legal experts widely believe that Trump's gambit to delay the investigation by asking for a special master may have already backfired.

"Trump's team needs to find an exit ramp," tweeted former federal prosecutor Renato Mariotti, "out of the Special Master proceeding they asked for."

By Igor Derysh

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

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Related Topics ------------------------------------------

Aggregate Aileen Cannon Donald Trump Politics Raymond Dearie