Unless the government’s appeal filed Friday succeeds, major action in the investigation now looks set to be postponed until after the midterm elections — by which time Trump could conceivably declare himself the 2024 presidential candidate. In that scenario, he can be expected to argue with even greater gusto that he is being victimized for political reasons by the Department of Justice (DOJ) and the FBI. At a recent rally in Pennsylvania, Trump called the two organizations “vicious monsters.” The victory for Trump came when Judge Aileen Cannon announced Thursday that she would appoint Raymond Dearie, a semi-retired judge nominated by Trump’s legal team, as the so-called special master in the case that first broke into public view on Aug. 8 . FBI raids ex-president’s club in Florida. Cannon, a Trump appointee, favored the former president in other important ways as well. A special master’s typical role is to evaluate documents seized in a law enforcement raid to see if any may be privileged attorney-client communications — or private and without probative value. Cannon ruled that Dearie could review all seized documents, including those marked classified, for that purpose. About 11,000 documents were taken in the raid, with about 100 bearing classified markings. The government has argued — including in its appeal Friday — that even if Cannon insists on moving forward with appointing a special master, the classified documents should be excluded from the process. Essentially, the government contends that such documents cannot, by their nature, be Trump’s personal property and are inherently relevant to the investigation. But “the Court does not see fit to accept the government’s conclusion on these important and contested issues without further review by a neutral third party in an expeditious and orderly manner,” Cannon wrote. Moving forward, there are two other critical aspects to Cannon’s latest decision. First, he gave the special master until November 30 to complete his work, blocking some lines of inquiry for at least six weeks. Second, Cannon consistently held a controversial view. It claims it is possible to halt the use of the seized documents in a criminal investigation, pending the Dearie review, while at the same time proceeding with a separate process that would assess whether national security interests might be threatened. Media reports say at least one seized document refers to a foreign nation’s nuclear capabilities. Several were categorized as “TS/SCI,” an acronym that stands for “Top Secret/Sensitive Compartment Information.” Cannon slammed the investigators in her ruling Thursday, noting that the main national security risk in the case so far stems from “the unwarranted disclosures [in] leaks to the media following the underlying seizure.” The government had argued that the two strands being investigated – implications for national security and potential criminality – could not be separated. If the DOJ does not prevail in its appeal, legal experts say investigators face significant problems. Investigators cannot currently use the contents of any of the seized documents in interviews with potential witnesses. In practical terms, this would seriously sterilize the probe. “How can one investigate issues related to these documents from Intel’s perspective if you still cannot share the content?” said Mark Zaid, a D.C.-based attorney who specializes in national security-related cases. “The first question, say to a Mar-a-Lago staff member, might be, ‘Where did you see the classified document?’ And they say, “What?” And the answer is “We can’t tell you.” The FBI runs out on two questions.” Zaid noted, however, that this does not necessarily remove every legal risk Trump or those close to him face. Previous depositions indicated that one of the possible crimes being investigated is obstruction. It could be argued that such a crime had taken place, without reference to the actual content of the documents. The chronology of events leading up to and including the FBI investigation into Mar-a-Lago suggests that Trump and people around him were asked to produce all classified documents and said they had, when in fact they had not does. This could be considered evidence of a crime, regardless of the specifics of what the documents contain. In the real world, however, the Justice Department may be reluctant to indict a former president at that stage, when it would otherwise wait for the special master’s review to be completed. Meanwhile, some legal observers are pushing Cannon’s decision hard. “Judge Cannon wasn’t just leaning in Trump’s direction, he was falling at Trump’s feet,” said Harry Littman, a former U.S. attorney and deputy assistant attorney general. Dearie asked attorneys for both sides to appear in federal court in Brooklyn, New York, on Tuesday for a “preliminary conference.” Further complicating matters, Cannon allowed Dearie to evaluate the documents for whether Trump could justifiably exercise executive privilege — not just attorney-client privilege — over any of them. The nuances of legal arguments do not mask the underlying realities. A Trump-appointed judge has put a major speed bump in the way of the investigation. Merrick Garland faces stormy waters over Trump probes Trump, Justice Department lawyers to convene for first conference with special master The obstacle can be removed on appeal. If they are not, prosecutors face a frustratingly slow road ahead. The Memo is a reported column by Niall Stanage.
