Monday, August 29, 2022

The Fix Is In

The fine print there (well, it is fine print to these old eyes) is that the Court has set a hearing on a motion to appoint a special master, and has indicated to the parties the Court is inclined to appoint such a master, "without prejudice to the parties' objections."  Which translates as "there is no decision, and the parties can come to the hearing with their arguments, which will be heard and considered fairly; but let's get on with it."

What a special master does is actually not much.  It's a position akin to a guardian ad litem in a family law case:  a third party assigned to report to the court on the welfare of the children in a divorce.  The guardian basically represents the interests of the children, but not as an attorney (that would be an attorney ad litem, which is sometimes assigned as well).  The appointment of a guardian does not prejudice the interests of either adult party to the divorce; but it protects the interests of the children.

Trump is claiming he has executive privilege and attorney-client privilege issues in the material seized by the FBI.  Much as people on Twitter and cable news yammer about who does have executive privilege, Trump or Biden, that yammering does not settle the issue.  A court has to settle that issue.  One way to do that is to appoint a special master to review what the FBI took, and determine if any of it is subject to privilege.  The parties can then argue that point in court, all the way up to the Supremes, if necessary.

That's the way the system works.  Much as you may despise Donald Trump, he has legitimate legal interests to protect, and the court must see to it that, if they are legitimate, they are protected.

So, isn't this judge giving Trump what he wants ASAP and therefore unfairly?  No.

I said before this judge is treating Trump as if he were pro se.  I mean by that judges don't hem in pro se plaintiffs with thickets of laws.  That doesn't mean judges give pro se parties what they ask for.  It just means judges may appear to accommodate the parties; and then rule against them because, even giving them the full benefit of the doubt, they haven't made their case.

Has the judge decided Trump is entitled to a special master?  I don't think so. I think he's just telling DOJ that's what he's inclined to do, just to speed this matter along.  Consider:  this is a civil case.  There are certain deadlines that have to be observed, such as the issuance of a summons pursuant to filing a new case, and service of that summons, and then the nearly three weeks allowed the defendant to file an "answer," and first appear in the case.  After that, usually, the court entertains motions like applications for special masters.  So, ostensibly, it could be late next month before the court were to actually get around to starting this process. (Yes, ordinarily it does go faster, because the private party's lawyers contact the DOJ and they work out a deal that is taken to court to be memorialized and put into effect.  Again, Trump suffers from completely incompetent counsel.) 

A-HA!, you cry!  The judge DOES favor Trump!  Not so fast.

This lawsuit is a piece of high profile nonsense.  It's largely Trump trying to keep this case in the public eye by having court hearings to point to, and to claim "delays" by DOJ that are actually just the timeline of any lawsuit as prescribed by the rules of procedure.  The judge is not favoring Trump, the judge is dismissing Trump ASAP.  Had the judge followed the ordinary course of such cases, there would have been no action on the motion until DOJ had answered the suit, filed it's response and brief outlining its arguments, plaintiff's counsel filed their brief, a hearing, and then, eventually, an order from the court on the motion.

The judge is essentially asking DOJ to come forward with evidence and arguments why a special master is moot, by the end of this week.  (This motion also tells the plaintiff to get his ducks in a row, ASAP.)* Again, that's how the legal system works.  We've all heard of "taint teams" and we all "know" the FBI has been reviewing these documents for weeks; may even be through with that review.  But that needs to be put before the Court as evidence, which evidence may include there is a taint team report which can be reviewed.  The judge may even appoint the master just to review the conclusions of the "taint team" and have a third-party witness to how the FBI handled this investigation so far.  Think Cyber Ninjas having to admit Joe Biden not only won AZ, but by more votes than previously thought.  Not exactly a sterling silver win for Trump.

Trump may get his special master; but it will be as pyrrhic a victory as getting the affidavit released (which he fought for in the public arena, but never in court!).  By scheduling a hearing on this issue ASAP, the judge is giving Trump what he wants, but not in the way he wants it.  If the court were to treat Trump's counsel like the bumbling idiots they are (and deserve to be so treated), this case would drag on for months, and Trump would scream about the "corruption" in the legal system because he was being treated "unfairly!"  Giving Trump the hearing he asks for while giving the DOJ a heads up on what to bring to the fight, is actually undercutting Trump.  This case will probably be over by the end of the week.  

And Trump will have to find something new to scream about.  It's notable he's said nothing about this on his social media platform; at least nothing that's been widely reported.

*I've actually been in hearings sort of like this, where one party comes ready to scream "unfair!" because the other party has a perfectly sound explanation for everything they've done.  The party screaming about fairness inevitably says "Your Honor, we knew nothing about this!", to which the response is:  "All you had to do was ask us."  Judges don't like to mediate disputes between parties where one side has stupid lawyers.

Clearly I'm not keeping up with the headlines:
The Justice Department told a federal judge that its review of the records seized identified only a “limited set” that might “potentially” be attorney-client privileged.

The department indicated that the privilege review — conducted by a “filter team” designed to screen attorney-client information from investigators probing potential criminal violations related to national-security-related documents stored at Trump’s Florida residence — has been completed.

The review appears to have only sought to isolate any potential attorney-client privileged documents and left unaddressed Trump’s claims that some of the documents are covered by executive privilege.

The details came in a brief filing prosecutors submitted to U.S. District Court Judge Aileen Cannon, who is handling a motion Trump filed last week asking for a so-called special master to oversee the government’s handling of the documents and to segregate and return any privileged materials. Trump’s delay in filing the motion — he waited nearly two weeks after the Aug. 8 search of his property — appears to have given the Justice Department time to finish its review.

I'll just point out the "brief filing" is using an adjective, not a legal term of art.  The document linked in the original is only two pages long; well, three with the signature page.  Tells you how worried the DOJ is about this.

“Before the Court issued its Preliminary Order, and in accordance with the judicially authorized search warrant’s provisions, the Privilege Review Team (as described in paragraphs 81-84 of the search warrant affidavit) identified a limited set of materials that potentially contain attorney-client privileged information, completed its review of those materials, and is in the process of following the procedures set forth in … the search warrant affidavit to address potential privilege disputes, if any,” the prosecutors wrote.

I think (criminal law is not my area of expertise; in fact, nothing in law is my area of expertise anymore.  You get what you pay for.) this throws the case back to the magistrate, who will the the proper party to review the work of the taint team.  That jurisdiction issue I mentioned way back when (you look it up; I can't do everything!).

DOJ is expected to file a more detailed reponse by Tuesday night.  The hearing is set for Thursday.

This is very, very close to "game over."

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