Justice Department, Trump lawyers head for legal war over Mar-A-Lago documents and presidential power

The joint filing by the Justice Department and Donald Trump’s legal team ordered by Trump-appointed judge Aileen Cannon reveals a growing chasm between the two sides that seems to make further legal battles inevitable. After Cannon asked both parties to outline substantive points on which they may agree or disagree regarding Cannon’s decision to use a special master to review documents seized in Mar-A-Lago search warrant, DOJ and Trump lawyers filed a six-page file. It was short because the parties disagree on everything, of the candidates proposed to be the special master, within the reach of the authority of that person, to whom should even pay for the special master.

The DOJ nominees are two retired judges: Barbara Jones, a former U.S. District Court judge for the Southern District of New York, who recently served as a special master in reviewing documents seized from executed search warrants on the desks of Trump lawyers Rudy Giuliani and Michel Cohen; and Thomas Griffith, former judge of the Federal Court of Appeals in Washington, DC

Trump’s attorneys have proposed: Raymond Dearie, former Chief Justice of the Federal District Court for the Eastern District of New York, with experience at the Foreign Intelligence Surveillance Court (FISA court); and Paul Huck, who had worked with one of Trump’s current attorneys for Republican Florida Governor Charlie Crist. Huck is married to Judge Barbara Lagoa, a judge for the 11th Circuit Federal Court of Appeals, the same appeals court that will hear any appeals in this case.

Of those nominees, Huck seems completely compromised by conflicts of interest, given that he worked with Trump’s current attorney and that his wife sits on the same appeals court that could hear appeals in the present case. Jones, Griffith and Dearie are all reasonable picks and the sides have until Sept. 12 to state their position on each other’s picks. If they can’t agree, the decision will be entirely in Judge Cannon’s hands, which the DOJ may want to avoid given that they could choose Huck.

The two sides also disagree on how much time the special master should have to complete his exam. The DOJ wants it done by Oct. 17, but Trump’s lawyers want three months for the review. Delays generally favor the defense in criminal investigations. And in that case, if Cannon grants the three months, it would freeze DOJ investigations until after the midterm elections since she issued a stay barring DOJ and FBI investigators from reviewing any of the documents. Mar-A-Lago until the special master completes a review.

The workflow process is also contested by the parties, with Trump’s lawyers wanting the right to communicate privately with the special master excluding the DOJ, and send a categorization of documents they wish to have reviewed directly. without the DOJ seeing them. The DOJ counters that its ability to see categories of documents, usually listed in logs that identify documents without revealing their contents, would reduce the workload of the special master, because the DOJ could accept certain categories, which would reduce the need for a high volume of ex parte. communications, thereby improving “the perceived fairness and transparency of the process”. The DOJ also wants Trump and his team to pay for the special master since Trump is the one who wants one. On the other hand, the Trump team unsurprisingly wants to become Dutch on costs.

The breadth and depth of these disagreements between the DOJ and Trump’s lawyers seem to make further legal battles and appeals inevitable.

But the biggest disagreement between the two sides is the scope of the special master’s work. The DOJ argues that the special master: (1) should not review documents dealing with classification issues; (2) should not adjudicate claims for executive privilege, but rather submit such documents directly to the National Archives and Records Administration (NARA); and, (3) should consult with NARA on determining presidential records. Trump’s lawyers disagree with all of this, saying the DOJ mistakenly believes the classification of documents is in perpetuity, and that Trump’s interest in any presidential filing means he cannot be denied. control and access to them.

The breadth and depth of these disagreements between the DOJ and Trump’s lawyers seem to make further legal battles and appeals inevitable. In particular, disagreement over the scope of the special master’s authority goes to the heart of what is at stake in the appointment of the special master, as it serves as a proxy war against Trump’s vision of expansive presidential power. who can oppose the rest of the executive branch. Ironically, as England goes through its old process of installing a new monarch, this dispute in a Florida courtroom is really a battle over whether US presidents are civil servants or emperors. In 1776, America went to war over this issue and won. But the principle requires that it be defended even today, and every day.

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