Another day, another legal disaster for Donald Trump
Former President Donald Trump speaks at a Save America rally to support Republican candidates running for state and federal offices at the Coveley Center on September 17, 2022 in Youngstown, Ohio. (Photo by Jeff Swenson/Getty Images)
Former President Donald Trump’s big plan to halt the investigation into the Mar-a-Lago classified document scandal isn’t going the way he had hoped.
On Tuesday, a federal judge pushed back against Trump’s lawyers for indicating that the documents may be declassified, refusing to say whether they certainly were. In other words, Trump’s own lawyers backed up the claims his boss made loudly outside the courtroom.
Judge Raymond Deary said, “I think, you can’t have your cake and eat it too.”
Dearie did not rule on the issue Tuesday, but he pressed Trump’s attorney, Jim Trusty, on why he should not rule in favor of a party that at least shows him some evidence.
“If the Government gives me prima facie evidence that they are classified documents, and you do not pursue any claim of declassification, then I have a prima facie case of classified documents left, and as far as I am concerned, That is the end of it,” said Dearie.
Trump’s lawyers argued they could not tell whether Trump actually declassified any of the documents because it would reveal his future defense strategy if Trump is ever charged with a crime.
The FBI is investigating whether Trump may have violated the Espionage Act by stashing highly sensitive national security documents at his Beachside country club without proper approval. Unconfirmed media reports have suggested that those documents may contain secrets about another country’s nuclear program.
Trump’s own former cabinet officials have ridiculed Trump’s claim that he had a standing order to make public all documents removed from the Oval Office to his White House residence. And national security experts have said the idea sounds strangely far-fetched.
Dearie was hand-picked by Trump’s lawyers to referee his dispute with the Justice Department over the documents as the so-called special master, with the approval of the DOJ.
But Dearie’s questions about the investigation did not bode well for Trump’s efforts to obstruct the investigation.
Carl Tobias, an expert on court systems at the University of Richmond School of Law, said Trump’s lawyers may refuse to raise the declassification argument for fear of catching up with legal trouble if they lie in court.
“If Trump doesn’t want to live in reality, that’s fine, but his lawyers know he has moral obligations,” Tobias told Vice News. “I think they don’t want to give perjury. If they lie in court, they can be sacked and held in contempt of court. I don’t think they want to go there.” , and therefore they are not saying anything or cooperating.”
Legal experts said the failure to state a clear position left Dairy with no option but to ascertain that the documents were still classified.
“Trump has the burden of proof,” Defense lawyer tweeted and former prosecutor Renato Mariotti. “Asking the court to find that classified documents have been declassified without presenting any evidence of declassification is a non-starter.”
In other words, Trump’s initial victory in this legal battle appears to be in danger of collapsing like a sand castle in a rising tide, now that the dispute has shifted from Palm Beach, Florida, to Dearie’s courtroom in the Eastern District of New York.
Trump won an early victory thanks to South Florida District Court Judge Eileen Cannon, who was nominated by Trump and then confirmed a lifetime appointment by the Senate after Trump lost the 2020 election.
Cannon’s decisions were highly favorable to Trump but stunned legal observers for his curious reasoning and bizarre leaps of reason. She prompted legal observers to suggest that Cannon appeared bent on giving Trump the results he wanted, and that at times she did not understand the legal nuances or the national security implications of her decisions.
For example: Canon wrote that she believes the Trump team’s argument that the documents cannot be classified, even though Trump’s lawyers presented no convincing evidence that this was the case. Trump’s lawyers have never argued that the documents were declassified, but only that they are still not required to be classified, without further explanation. Cannon ruled that was good enough.
But that level of uncertainty wasn’t enough for Dearie on Tuesday.
If Dearie learns that the documents are in fact still classified, it would likely mean that they belong to the government and should not be considered privileged, despite Trump’s protests. This could free up the government to restart its investigation, as Canon ordered the DOJ to stop using the documents in its investigation, pending Dearie’s ruling.
However, it’s possible that Dearie may not have the last word. She was appointed special master on the case by Cannon, meaning she could still resolve the disputes that Trump’s team had with Dearie regarding classification issues later.
Meanwhile, another appeal is also pending in the 11th Circuit. That appellate court can either confirm Canon’s decision that a particular master review the files, or decide that it has no authority to encourage such special analysis of documents that have been classified.