Instead of filing a rebuttal brief to the Justice Department’s carefully tailored request for Judge Cannon to partially uphold her own order, as long as she allows investigators access to classified documents, Trump’s legal team begins with a strange “Introduction” that takes almost a quarter of her deposit. in which he characterizes the whole matter as merely “a document storage dispute” that unfairly criminalizes Trump’s possession of his own presidential and personal records.
Trump’s lawyers use quotes around the word “classified,” implying that the very classification of any documents is suspect, argue that only a special master can begin to “restore order to chaos,” and argue that the Justice Department is trying to ” to bypass the process and go straight to a foregone conclusion’. All this is on the front page.
The Justice Department’s decision to limit its legal argument to simply seeking access to the classified materials is a smart move, because it makes the most of its argument—namely, that a case involving classified documents cannot be investigated without access to the documents—by leaving Trump’s lawyers have no choice but to attack the very decision of the Justice Department to investigate.
For example, the use of the phrase “foregone conclusion” clumsily tries to mimic the clichéd “rush to judgment” language famously used by legendary criminal defense attorney Johnnie Cochran in his successful closing argument in the OJ Simpson murder trial. But the conclusion Cochran disputed was the conclusion reached by a criminal investigation — that OJ Simpson had committed murder. Instead, Trump’s lawyers are trying to control the very process of the criminal investigation.
The classification conflict is another example of coercive heavy-handedness on the part of Trump’s lawyers, as seen in their rebuttal statement:[t]the government has unilaterally determined that they are classified.” “These” are the classified documents. This ridiculous claim is based on the silly premise that the government cannot be allowed to determine what is and is not classified. Their suggestion that judicial intervention is required to determine these matters of national security is a fundamental subversion of the powers and duties of the executive branch.
These are not the usual ways to try to avoid criminal charges. The usual defense against criminal investigations is for defense attorneys to do their own investigation and try to convince prosecutors that they are barking up the wrong tree. In violent crimes this means arguing that the government suspects the wrong culprit. In white collar cases, it usually means convincing the government that no crime has occurred. But apparently, Trump’s lawyers aren’t arguing the facts to convince the Justice Department that there’s nothing to investigate. Perhaps that’s because it’s hard to argue with the truth that Trump had more than 300 documents in his possession that included material about a foreign nation’s nuclear capabilities and information that if exposed could potentially endanger the lives of human sources.
This is where the special master gambit comes into play. Asking for a special master is an attempt to exercise some measure of control over the documents the DOJ sees, possibly in the hope that the DOJ won’t see enough to make a criminal case, for example under the Espionage Act 18 USC 793 on the unauthorized possession and refusal to return national defense information.
However, the Justice Department’s smart response overcame the Trump team’s maneuvering by focusing on the fact that a criminal investigation involving national defense cannot be conducted without access to materials involving national defense and simply asking that the investigation be allowed to continue even and when the parties argued over whether a special master was necessary and the precise scope of what the special master could oversee.
That focus also offers Judge Cannon a compromise by which she can preserve Trump’s victory in seeking a special master with the ostensible purpose of promoting public faith in the investigation, while reducing the risk of a humiliating slam-dunk reversal in appeal.
Another instance of the Justice Department’s tactical shrewdness is reflected in the indication that one of Trump’s proposed nominees for special master — former federal judge Raymond Dearie — would be acceptable in addition to his own nominees — while noting his objection to attorney Paul Huck, lawyer with strong party ties. This give and take strategy improves his chances of appearing reasonable to Judge Cannon as well as increases his chances of avoiding the selection of an embattled and obviously partisan candidate like Huck.
Ironically, one of Attorney General Garland’s perceived potential weaknesses is that he has spent most of his career as an appellate judge and may have lost any combative prosecutorial instincts he may have had earlier in his career. But here, as the DOJ navigates uncharted legal territory with historically high stakes, Garland’s 20-plus years of experience as an appellate judge may give the DOJ a big advantage.
After all, who knows better how to provide a judicial solution than a former judge?
