The Judges Strike Back
Terry H. Schwadron
Sept. 22. 2022
The legal soap opera that describes the effort to recover government documents, including dozens marked with serious classified labels, from Mar-a-Lago had almost obscured the clarifying role that a good judge can bring.
In a single day on Tuesday, Federal District Court Judge Raymond J. Dearie, named the special master in the classified documents case, brought things back to reality. And then last night, a federal appeals court set things back on track
The appeals judges issued a 29-page decision that blocked the decision by a Florida judge to require special review of classified documents recovered by the FBI executing a search warrant at Donald Trump’s palatial Mar-a-Lago resort home. The appeals court said that the Justice Department “argues that the district court likely erred . . . We agree.”
Earlier, in his Brooklyn courtroom, Judge Dearie was able to bring appropriate perspective to the ever-more-weird claims from Trump’s legal team that he owns classified documents or may have used some special magic need to hold on to them.
Judge Dearie “expressed skepticism about the efforts by former President Donald J. Trump’s legal team to avoid offering any proof of his claims that he had declassified sensitive government documents that were seized from his Florida estate last month,” The New York Times summarized.
In response to attempts to bog down the judge’s evaluation with time-consuming questions over the classification status up to 100 documents marked classified, Dearie opined: “My view is, you can’t have your cake and eat it too,” ruling that they cannot argue both that the documents may not really be classified at all or that Trump may argue sometime in the future that he properly declassified them.
Regardless of the specific outcome, it’s frankly a relief to see judges doing their jobs, as compared with the Florida judge whose pretzel-like logic had insisted on a special master to do what she could not bring herself to demand.
Arguing Classified Documents
Dearie, whose name was suggested by Team Trump, issued no rulings at the hearing. But, as The Washington Post noted, he made clear that if Trump’s side remained silent on whether their client had at some point in his presidency declassified the documents, Dearie was likely to agree with prosecutors that the files at the heart of the case remain classified. That was borne out by the parallel appeal decision last night.
Trump’s lawyers have argued that answering the question now could put them at a disadvantage in the face of a possible future criminal prosecution or a future legal fight over getting seized documents returned to Trump. Basically, they argue that Trump could have declassified them, but they won’t say so.
Doing so would put Trump in a position of having to show proof that he declassified documents and that his bureaucracy carried it out. But doing could leave him and his lawyers vulnerable to charges of lying to the court, since the FBI says the documents still show classified markings.
Naturally, Justice lawyers say it is the job of the executive branch, not courts, to decide what is classified altogether.
To a certain extent, focus on the classification status is just a blind.
Two of the three federal statutes cited by the Justice Department as reason for a search warrant at Mar-a-Lago don’t require any special classification of documents to be considered an illegal act. Essentially, Trump is being seen as possessing stolen goods. Under the third, the Espionage Act, Trump could be held in violation of law if the material is deemed harmful to U.S. national security, regardless of classified status.
In any case, what we could see in Dearie’s courtroom was a concerted effort to get on with the case and to apply law and legal procedure rather than some personal worries about Trump’s reputation.
What had appalled about Judge Aileen Cannon’s handling of the case until now was that normal application of the law and procedure seemed missing in lieu of judicial gymnastics to protect Trump.
One Among Many
These twists and turns came as legal tentacles seemed to grow stronger around Trump’s simultaneous cases.
The New York Times reported, for example, that former White House attorney Eric Herschmann “warned [Trump] late last year that he could face legal liability if he did not return government materials he had taken with him when he left office.” Herschmann has been called to testify before a federal grand jury — with testimony that could contribute towards a case of obstruction of justice. At the least, Herchmann’s testimony could buttress any questions about Trump’s criminal intent to remove documents from the White House.
The House Select Committee on Jan. 6 is planning more hearings for next week and plans to issue at least an initial report on its evidence and findings before the November elections.
The dramatic announcement yesterday of a massive New York State civil lawsuit over years of fraudulent financial and tax filings by the Trump Organization businesses raised a lasting specter of criminal charges as well, with new referrals to Justice and to the Manhattan district attorney.
In a separate court filing in Georgia, video surfaced that helps to show that a Republican county official and operatives working with an attorney for Trump spent hours inside a restricted area of the Coffee County elections office on Jan. 7, 2021. Among those seen in the footage is Cathy Latham, a former GOP chairwoman of Coffee County who is under criminal investigation for posing as a fake elector in 2020. The issue of fake electors is the basis for a separate Justice grand jury inquiry involving Trump.
Lawsuits by Dominion Voting Systems against several Team Trump advisors continue to proceed, and Mike Lindell, the pillow businessman who has taken a big role in pursuing election fraud claims, lost his bid in court to dismiss lawsuits naming him.
Through it all, Trump makes his case as victim of FBI and Justice harassment through tweets and public appearances at which he increasingly is identifying with QAnon conspiracy theorists.
If it all is going to court, we need judges who apply actual law.