Wednesday, September 28, 2022

Don't Say I Never Did Anything For You

emptywheel reads the pleadings for you (and me. I did that for a living once upon a time. Nobody is paying me to do it now, so damned if I'm gonna waste me time. Life's too short! And I'm too retired....). I will, in turn, do the Reader's Digest condensed version* of emptywheel's analsysis. 

To explain:  emptywheel helpfully provides bulletpoints from relevant court orders and pleadings.  I'm going to cut out some of the details and try to give you the gist.  You want the details straight, the link is above (and I recommend it anyway).


After Cannon appointed the SM and gave him marching orders, SM set a date of Friday (yes, two days from my writing)  to submit a declaration or affidavit about property NOT seized (I guess in contravention of the DOJ inventory and affidavits); property seized but about which information from DOJ is incorrect (again, I mean the inventory list); and property seized but not mentioned in the inventory.

A lot of ground, IOW, and all going to the heart of: "What are we doing here?"  Dearie doesn't want to mess around.

Trump's response was sealed.  DOJ (not sealed) responds to "objections" by pointing out that, without the information required above, the SM can't begin to categorize documents at all, much less decide privilege claims.

Cannon then revises her order, per the 11th Circuit ruling, laying out four categories of documents to be used by the SM.

Dearie then orders plaintiffs to specify documents and, for each, state the privilege.  There are four categories of privilege, two for each attorney-client and executive.  Again, I'll spare you the bitter details.

Trump objects again; again under seal.  The DOJ response points out the Dearie's amended case management plan is consistent with the Appointment order, so, again, Plaintiff has nothing to stand on.

Details matter here, in court anyway; but the gist is, Trump doesn't like Dearie's "git-er-done" philosophy, and is throwing sand in the gears every chance he gets.  Still, clock is ticking. 

And here's where those details matter.  Emptywheel just references a third Cannon order.  I understood that was the one responding to Dearie's queries (see what I did there?!) about what the hell with her order after the 11th smacked her hard.  Dearie now says...well, I'll quote emptywheel this time:

Once the Court has reviewed the Special Master’s recommendations and ruled on any objections thereto, the Special Master will, if necessary, consider Plaintiff’s motion for the return of property under Federal Rule of Criminal Procedure 41(g). Plaintiff shall submit a brief in support of the motion no later than seven calendar days after the Court’s ruling on the Special Master’s recommendations. In addition to addressing the merits of the Rule 41(g) motion, Plaintiff’s brief should address specifically whether the motion may properly be resolved in this action or must instead be decided as part of the docket in the action in which the relevant warrant was issued, 9:22-MJ-08332-BER.
And now I'll translate:  Dearie is sick of this shit, because neither Cannon nor Trump seem able to wipe their own...noses.  So once matters are settled (maybe they are now, maybe they aren't?), the SM will decide whether to consider a Rule 41(g) request for return of property.  If so, Plaintiff has seven days to brief it (I don't know if that clock is ticking or not).  Dearie also raises what I call the jurisdictional question:  should this matter be in Cannon's court or, under Rule 41 (as I read it), should it be before the magistrate who issued the search warrant?  Dearie wants to get away from this shit, but he also wants to straigthen it out (and he's hardly above slapping Cannon silly at this point.  She is the epitome of a "Trump appointee," even if there are several on the bench who aren't so flamingly incompetent.) He's serving notice to all and sundry that this shit is, basically, over, but for the cryin'.

Trump's response:  say it with me: "Under Seal."  

DOJ's response?

Third, the Special Master’s request for briefing on a particular point of law is similarly consistent with the Appointment Order. The government will brief that point of law. It behooves Plaintiff to brief that point as well.

I can't improve on that.

Let me quote emptywheel judiciously to explain the state of play now, and why Trump never should have brought this action, and should (he's the plaintiff) just drop it now:

If Trump complies with the order to confirm or deny the inventory, it will require him to admit there are 103 documents bearing classification marks that he didn’t turn over in response to a subpoena, an element of the obstruction and possibly the Espionage Act offense. To make any claims about the inventory, Trump will quite literally either have to confess he committed at least one crime or his lawyers will have to affirmatively lie (and do so without access to the other FBI evidence documenting their search protocol that would disprove the lie).

If you're wondering, no, he can't invoke the 5th.  Dearie will just hand him his head and tell Cannon to do the same (i.e., dismiss this crap because plaintiff failed to meet the burden of proof).  And if she doesn't, the 11th will slap her silly again.  She knows that. 

There is possible escape hatch for Trump.  This comes in a paragraph detailing all the ways Trump is screwed on issues of privilege and identifying documents he thinks are so privileged, so this is a bit out of context.  Still, the point is interesting:

Dearie can’t do his job if Trump won’t specify what kind of privilege he is claiming here. But by suggesting Dearie’s order is inconsistent with Cannon’s order (as DOJ’s response suggests Trump is doing), Trump may be trying to hasten to the point where Cannon fires Dearie and replaces him with someone who’ll hold Trump to a standard other than that required by a Special Master review, not to mention the Presidential Records Act.

Yeah, maybe.  My read is that Cannon wishes this would all go away so the world would go back to not noticing what a hack she is.  If she fires Dearie, DOJ may go to the 11th again.  She has to be scared to death of that.  I think she's more likely to keep Dearie and discard Trump; but reasonable minds can differ on questions of fact.


By attempting to do this under seal, then, Trump is also attempting to hide the nature of his complaints in case Cannon decides to respond by firing Dearie. If she fires Dearie with this public (and she might!), it’ll make it all the easier for the 11th Circuit to reverse the entire appointment as an abuse of civil procedure.

There's also another reason Cannon might want this to go quietly away:

Cannon is still hiding the filter team status report that would show that she made false claims about its contents to even claim jurisdiction, and she may well hide Trump’s objections for the same reason: because they make her own actions all the more improper. 

Jurisdiction is fundamental and is an issue that can never be waived.  Jurisdiction is the court's authority to act as a court; without it, nothing the court does is valid or enforceable.  Judges know this.  If Cannon is responsible for a failure of jurisdiction, it's very, very bad for her.

But the person who's really put himself in the crosshairs is Trump:

But somehow, none of the crack lawyers representing Trump or Judge Cannon thought through that if this is really treated as a civil suit, to prevail, Trump will need to make affirmative assertions that DOJ can then use in a criminal case against him. 

A crack team of legal geniuses, yessiree bob! 


 *Ask yer grandpa! Whippersnappers!

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