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Trump’s Demand for Special Master Is Looking Like a Mistake


WASHINGTON — Former President Donald J. Trump’s request that a judge intervene within the criminal investigation into his hoarding of presidency documents by appointing a special master increasingly looks like a major blunder, legal experts say.

“Possibly from Trump’s perspective, creating delay and chaos is at all times a plus, but this has the texture of a large backfire,” said Peter M. Shane, a legal scholar in residence at Latest York University and a specialist in separation-of-powers law.

Initially, Mr. Trump’s demand that an outdoor arbiter sift through the materials the F.B.I. seized from his Florida estate appeared to turn in his favor. His lawsuit was assigned to a judge he had appointed, Aileen M. Cannon of the Southern District of Florida, who surprised legal experts by granting his request.

In naming a special master suggested by Mr. Trump’s lawyers, she effectively froze the Justice Department’s investigation and gave the arbiter a broad mandate. The judge, Raymond J. Dearie of Federal District Court for the Eastern District of Latest York, would filter the materials not only for attorney-client privilege, which will not be unusual, but additionally for executive privilege, which is unprecedented.

But Mr. Trump’s apparent triumph would prove short-lived. An appeals court ruling last week and a letter the Justice Department filed late Tuesday about subsequent complaints his legal team has apparently filed under seal to Judge Dearie suggest that the upsides to obtaining a special master are eroding and the disadvantages swelling.

A lawyer for Mr. Trump didn’t reply to a request for comment.

The appeals court freed the Justice Department to resume using about 100 documents marked as classified in its investigation, while telegraphing that the court thought Judge Cannon likely erred by appointing a special master.

In blocking a part of Judge Cannon’s order, the appeals court panel, including two Trump appointees, allowed investigators to again scrutinize the fabric that poses by far the gravest legal threat to Mr. Trump. Potential crimes include illegal retention of national security secrets, obstruction and defying a subpoena demanding all sensitive records that remained in his possession.

However the Justice Department acquiesced for now to the rest of the special master process, meaning that an outdoor arbiter would still assess some 11,000 unclassified records and other items seized from Mr. Trump’s Florida compound, Mar-a-Lago.

Since that review isn’t any longer delaying or diverting the criminal inquiry, it will not be clear what advantages remain for Mr. Trump.

For one, a special master will cost a variety of money. Judge Cannon rejected Mr. Trump’s proposal that taxpayers should foot half the bill of the review, as an alternative saying he could be solely responsible.

That features the complete cost of a vendor who will scan all of the materials, in addition to support staff for Judge Dearie, like an assistant who bills $500 an hour. Mr. Trump can even must pay his own lawyers’ fees as they filter 1000’s of pages of records after which litigate disputes about which of them may be withheld as privileged.

And removed from indulging Mr. Trump, as his lawyers likely hoped in suggesting his appointment, Judge Dearie appears to be organizing the document review in ways in which threaten to swiftly puncture the previous president’s defenses.

For instance, the judge has ordered Mr. Trump to submit by Friday a declaration or affidavit that lists any items on the inventory “that plaintiff asserts weren’t seized” within the search.

But when Mr. Trump acknowledges that the F.B.I. took any documents marked as classified from his personal office and a storage room at Mar-a-Lago, because the inventory says, that might grow to be evidence that might be used against him if he were later charged with defying a subpoena.

Requiring Mr. Trump’s lawyers to confirm or object to the inventory also effectively means making them either affirm in court or disavow a claim Mr. Trump has made in public: his accusation that the F.B.I. planted fake evidence. While it will not be against the law to misinform Fox News viewers or on social media, there are consequences to lying to a court.

Essentially, Judge Dearie is telling Mr. Trump’s legal team “to place up or shut up,” said Julie O’Sullivan, a Georgetown University professor of white-collar law.

Late Tuesday, the Justice Department indicated to Judge Dearie that Mr. Trump’s lawyers were balking at his request that their client confirm the property inventory at this stage, before the documents might be categorized or reviewed for privilege. They apparently expressed such objections in a document filed under seal.

“They thought it was a win to win the primary battle, but they didn’t think through what winning that battle would mean with any reputable judge who’s appointed as special master,” Ms. Sullivan said. “They will’t anticipate that each judge will give them a whole pass despite the law. It was a political or a public relations strategy, not a legal one.”

One other issue centers on Mr. Trump’s public insistence that he declassified all the things he took to Mar-a-Lago, a claim for which no credible evidence has emerged.

His lawyers haven’t repeated that claim in court. They’ve as an alternative merely insinuated that he might need done so by emphasizing that a president has broad declassification powers without asserting that he actually used them on the files.

At a hearing this month, Judge Dearie said that Mr. Trump’s legal team would wish to submit evidence of any declassification — like a sworn declaration or affidavit — or he would conclude that they remained classified.

“I suppose my view of it’s,” he said, “you’ll be able to’t have your cake and eat it.”

In exempting the documents marked as classified from the special master’s review, the appeals court also focused on the disconnect. There was “no evidence that any of those records were declassified,” the three-judge panel wrote, noting that Mr. Trump’s lawyers had “resisted providing any evidence that he had declassified any of those documents.”

The Justice Department’s letter indicated that Mr. Trump, through his lawyers, is chafing at other orders from the special master.

For instance, Judge Dearie has said they need to categorize each document Mr. Trump claims is subject to privilege. They’re to say whether or not they mean attorney-client or executive privilege. In the event that they claim executive privilege, then they need to distinguish between records which are merely shielded from disclosure to people outside the chief branch and people the chief branch itself supposedly cannot review. They need to also explain why each document qualifies for such status.

Judge Dearie is effectively attempting to force Mr. Trump’s lawyers to confront a weakness of their theory that executive privilege is relevant to the case. Many legal experts doubt a former president can invoke the privilege against the desires of the present president, stopping the Justice Department from reviewing executive branch materials in a criminal investigation.

But for now, Mr. Trump’s legal team evidently desires to say only that various items are privileged, leaving it at that.

For its part, the Justice Department appeared to relish Mr. Trump’s growing discomfort.

“Plaintiff brought this civil, equitable proceeding,” it wrote. “He bears the burden of proof.”

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