The independent arbiter tasked with inspecting documents seized in an FBI search of former President Donald Trump's Florida home said Tuesday he intends to push briskly though the review process and appeared skeptical of the Trump team's reluctance to say whether it believed the records had been declassified.
“We're going to proceed with what I call responsible dispatch," Raymond Dearie, a veteran Brooklyn judge, told lawyers for Trump and the Justice Department in their first meeting since his appointment last week as a so-called special master.
The purpose of the meeting was to sort out next steps in a review process expected to slow by weeks, if not months, the criminal investigation into the retention of top-secret information at Mar-a-Lago after Trump left the White House. As special master, Dearie will be responsible for sifting through the thousands of documents recovered during the Aug. 8 FBI search and segregating those protected by claims of executive privilege or attorney-client privilege.
Though Trump's lawyers had requested the appointment of a special master to ensure an independent review of the documents, one of the former president's attorneys, James Trusty, made clear they were concerned that Dearie's proposed deadlines were too ambitious.
The lawyers are also resisting Dearie's request for information about whether the seized records had been declassified, as Trump has maintained. In a letter to Dearie on Monday night, the lawyers said that issue could be part of Trump’s defense in the event of an indictment.
But Dearie appeared unsatisfied with that position. He said if Trump's lawyers will not actually assert that the records have been declassified and the Justice Department instead makes an acceptable case that they remain classified, then “as far as I'm concerned, that's the end of it.”
Trusty said the Trump team should not be forced at this point to disclose a possible defense based on the idea that the records had been declassified. He denied that the lawyers were trying to engage in “gamesmanship” but instead believed it was a process that required “baby steps.”
But Dearie at one point observed: “I guess my view of it is, you can’t have your cake and eat it” too.
Trump has maintained without evidence that all of the records were declassified; his lawyers have not echoed that claim, though they have repeatedly asserted that a president has absolute authority to declassify information, and they said in a separate filing Tuesday that the Justice Department had not proven that the records remained classified.
“As someone who has been president of the United States, he has unfettered access along with unfettered declassification authority,” Trusty said Tuesday.
The resistance to the judge’s request was notable because it was Trump’s lawyers, not the Justice Department, who had requested the appointment of a special master and because the recalcitrance included an acknowledgment that the probe could be building toward an indictment.
In the letter, Trump’s lawyers said the time for addressing that question would be if they pressed forward with demands for the Justice Department to return some of the property taken from Mar-a-Lago.
“Otherwise, the Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment.” they wrote.
The Trump team also asked the judge to consider pushing back all of the deadlines for his review. That work includes inspecting the roughly 11,000 documents, including about 100 marked as classified, that were taken during the FBI's search.
U.S. District Judge Aileen Cannon, a Trump appointee who granted the Trump team's request for a special master, had set a Nov. 30 deadline for Dearie's review and instructed him to prioritize his inspection of classified records. The Justice Department has asked a federal appeals court to halt Cannon's order requiring it to provide him with classified documents for his review. That appeal is pending.
Dearie, a Ronald Reagan appointee whose name is on the atrium of his Brooklyn courthouse, made clear during Tuesday's meeting that he intended to meet the deadlines, saying there was “little time” to complete the assigned tasks.
Julie Edelstein, a Justice Department lawyer, said she was hopeful that the department could get the documents digitized and provided to Trump's lawyers by early next week. She noted that the department had given the legal team a list of five vendors approved by the government for the purposes of scanning, hosting and otherwise processing the seized records.
After some haggling, Dearie instructed Trusty's lawyers to choose a vendor by Friday.
Earlier Tuesday, the Trump legal team urged the U.S. Court of Appeals for the 11th Circuit to leave in place Cannon's order temporarily barring the Justice Department's use of the classified records for its criminal investigation while Dearie completes his review. The department has said that order has impeded its investigation into the presence of top-secret information at Mar-a-Lago.
Trump's lawyers called those concerns overblown, saying investigators could still do other work on the probe even without scrutinizing the seized records.
“Ultimately, any brief delay to the criminal investigation will not irreparably harm the Government,” Trump's lawyers wrote. “The injunction does not preclude the Government from conducting a criminal investigation, it merely delays the investigation for a short period while a neutral third party reviews the documents in question.”
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