Rule 41

Trump & co have been fuming over the photo included in the Justice Department's filing & say as much in this filing, saying investigators "gratuitously included a photograph of allegedly classified materials, pulled from a container & spread across the floor for dramatic effect."

— Kaitlan Collins (@kaitlancollins) September 1, 2022

That "argument" (I use the term generously) might work with a jury; until the FBI agent explains it’s standard practice for recording evidence when executing a search warrant.

And it might work with a particularly dim and inexperienced judge who ignores that same FBI agent’s testimony.

But it would never get past the appellate court. And the DOJ could have this case up on appeal in 20 minutes following an adverse ruling.

There is no delay working for Trump in this case. Absent an injunction (which he hasn’t asked for), nothing is slowing down the investigation at all. If the court appoints a special master today, DOJ can freeze that on appeal, finish with the documents, and let Trump rant all he wants while the legal case against him strengthens. DOJ has already said the appointment of a master is moot. The criminal investigation train has left the station and there’s nothing Trump can do to keep it from reaching its destination.

As for that “big” 4th amendment action:

What Trump advisers have said, and which they suggest in tonight’s filing, is there will be an eventual Rule 41 filing.

— Maggie Haberman (@maggieNYT) September 1, 2022

If all you can do is talk about it, you don’t have anything.

Rule 41 covers voluntary (and involuntary) dismissal of actions.  Which would seem to be an announcement Trump’s lawyers know this is pointless and they’re going to drop it sooner than later. Sounds like they don’t have much confidence in the hearing today going in their favor. That or it’s a tacit admission they’ve been ignoring the local rules (and probably the rules in general) and are gonna have to face that music. Rule 41 is not summary judgment (failure to make a case), so that’s a very odd admission.