Special master brings down the hammer.

[No audio for this newsletter due to technical difficulties.]

          At the first hearing before the special master in the Mar-a-Lago search case, Judge Raymond Dearie reeled in the errant proceeding from Alice’s Wonderland and landed it on the terra firma of federal court. Before Judge Cannon, Trump’s nonsense arguments were adopted in nonsense orders. Before Judge Dearie, the Federal Rules of Civil Procedure and Evidence provide the framework for making decisions. In other words, everyone should take a deep breath and relax (a bit). The rule of law still applies in some courtrooms in America.

          Before summarizing what happened in Judge Dearie’s courtroom, we should reflect on the significance of seemingly arcane legal maneuvering over a search warrant. We have arrived at this moment because a former president stole defense secrets, concealed them, refused to return them when asked, and lied to the FBI when questioned about the location, number, and nature of documents in his possession. It is increasingly likely that Trump will be indicted on espionage—a remarkable moment in our nation’s history. Against that backdrop, developments in the case that affect the timing of an indictment and illuminate the claims and defenses should be of vital interest to anyone cheering for the rule of law.

          Judge Dearie quickly cut through the smoke-and-mirrors double-talk that confounded Judge Cannon. As they did before Judge Cannon, Trump’s lawyers argued that they should not have to identify which documents Trump declassified. Dearie reminded Trump that he brought a civil suit to obtain the return of documents and therefore bears the burden of proof in the proceeding. See NYTimes, Special Master Expresses Skepticism of Declassification Claims by Trump’s Lawyers.

          Dearie then told Trump that he could, if he chooses, refuse to provide any evidence to support his claims that the documents are his personal property, but that approach would result in a presumption that the documents belong to the government. See Law and Crime, Judge Presses Trump’s Lawyers in Special Master Hearing (lawandcrime.com).

          Judge Dearie said,

The government gives me prima facie evidence that these are classified documents. As far as I’m concerned, that’s the end of it.

          Faced with Judge Dearie’s unassailable logic, Trump’s lawyers flailed helplessly, repeating arguments that Judge Dearie had rejected in the opening minutes of the hearing. As Dearie pressed on, Trump’s lawyers attempted the legal equivalent of Muhammad Ali’s “Rope-a-Dope” strategy by begging for more time, but Judge Dearie refused the bait. Instead, Dearie imposed a timeline for completion of the review that was more aggressive than that proposed by Trump or the DOJ. If Judge Dearie’s timeline holds, his review might be completed in a month, with the possibility of an earlier ruling that the classified documents are classified.

          As many commentators note, the question of classification is irrelevant to the potential criminal charges that might be brought against Trump. But their classification status is relevant to Trump’s claim that he has a right to possess those documents. The government claims that it is impossible for Trump to have a possessory interest in classified documents. Trump responds that he might have declassified the documents because he had the authority to do so (when he was president). Dearie cut through the legal fog by asking a simple question: Did Trump actually declassify those documents? If not, Trump can have no possessory interest in classified documents.

          Most importantly, Judge Dearie suggested that if Trump fails to produce any evidence of a possessory interest in the classified documents, then neither Trump’s attorneys nor the judge need review the documents. Dearie thus established a threshold evidentiary burden for Trump to overcome before reviewing classified documents. As Judge Dearie put it, “You can’t have your cake and eat it.”

          Dearie has quickly exceeded the limits of Judge Cannon’s order appointing him as special master—a complaint that Trump’s lawyers will undoubtedly raise with Judge Cannon, who will then be faced with an uncomfortable choice: She can overrule Judge Dearie to substitute another nonsensical order or she can follow Judge Dearie’s pragmatic approach to resolving the morass created by Cannon. Some commentators believe that Cannon appointed Dearie because she didn’t have the courage to bring the hammer down on Trump’s bad faith arguments—and is happy for him to do so.

          In a related development, Trump’s attorneys filed a response to the DOJ’s motion in the 11th Circuit for a partial stay of Cannon’s order. In their opposition, Trump’s lawyers again argue that they should not be compelled to say whether Trump declassified any documents. See Talking Points Memo, Trump To Appeals Court: I Get To Say Who The Docs Belong To.

          There are many moving parts here, and I hope the above is not too technical. The point is that Trump’s effort to bluff his way out of an espionage claim is faring badly. And here is a closing thought worth pondering: Why are Trump’s lawyers so desperate to see the classified documents? I suspect it is a combination of two reasons: (a) They don’t trust what Trump is telling them about the classified documents, and (b) Trump doesn’t know what is in the classified documents because he made no effort to index or summarize them.

          Trump’s lawyers are operating without a net for a client they do not trust. They want to see the documents to determine whether their client is lying to them. Spoiler alert: Trump lies about nearly everything, so odds are good that he is lying to his current lawyers about the classified documents.

NY Attorney General Letitia James tells press to expect “major announcement” on Wednesday.

          James has been investigating possible civil fraud charges against Trump for manipulating the values of his office buildings depending on the audience for his representations—i.e., the IRS and insurance companies. James says she will make a major announcement on Wednesday. See The Independent, New York AG Letitia James set for ‘major announcement’case.

          Stay tuned!

DeSantis is in trouble for virtual kidnapping of Venezuelan refugees.

          It is becoming increasingly obvious that DeSantis violated Florida law in tricking refugees in Texas to fly to Martha’s Vineyard. DeSantis claims that the state legislature allocated $10 million for “refugee relocation” out of Florida. But the victims of DeSantis’s political stunt do not meet the definition of “refugee” under Florida law. Moreover, the victims were not transferred “from” Florida to a refugee city. Judd Legum at Popular Information lays out the legal case against DeSantis: The smoking gun in Martha’s Vineyard.

          DeSantis is becoming increasingly illogical in his effort to explain why he solicited refugees in Texas to fly to Martha’s Vineyard under a program to relocate migrants out of Florida. DeSantis said,

The problem is we’re not seeing mass movements of them into Florida … It’s just coming in onesie-twosies.

          Got that? There are not enough immigrants in Florida to relocate to other states, so DeSantis is scouring other states for refugees who might—or might not—make their way to Florida. That explanation does not square with the legislative intent or language of the statute DeSantis used to fund his relocation stunt.

          DeSantis should be lawyering up. It is becoming increasingly likely he will be indicted.

What’s wrong with Lindsey Graham?

          What’s wrong with Lindsey Graham? Don’t answer—that’s a rhetorical question. But his cynical antics in the last four days regarding national anti-choice legislation are tough to rationalize with his past political positions. On Tuesday, he doubled down on his proposal to criminal abortion after 15 weeks by declaring that “Abortion is not a states’ right issue.” Really? Tell that to anti-choice advocates who tried for fifty years to return the question of reproductive liberty to the states.

           As Nicole LaFond at Talking Points Memo writes,

          Pundits, journalists and even Graham’s own Republican colleagues have been scratching their heads, trying to make sense of why the senator is not only willing to die on this hill (Graham has never been a strong voice of the pro-life movement in general, but especially not as a campaign issue) but also dying on it during a time when he could drag the rest of the party down with him.

          One explanation is that Graham is being forced to advocate for positions he does not support. It wouldn’t be the first time that Graham has been accused of a personal double standard, e.g., his opposition to gay marriage. We may never know Graham’s true motivations, but he is out of lockstep with his backpedaling colleagues at a time when the GOP can ill afford to bring attention to its unpopular anti-choice position.

Concluding Thoughts.

          My wife and I helped celebrate the 100th birthday of our good friend, Seth Hufstedler. Seth has led a truly remarkable life and has been a mentor and guide to hundreds of lawyers, including me. My wife posted a blog on the celebration:  Seth Hufstedler’s 100th birthday!.

          Another pundit predicted victory for Republicans in November based on a “secret” metric that other pundits are (allegedly) not discussing. The commentator pointed out that Republicans voted a higher rate than Democrats in the 2022 primary season. On the one hand, if true, that is not a positive sign. On the other hand, some Democrats switched registration so they could vote in a GOP primary to help a far-right extremist win the nomination. Also, many GOP primaries were hard-fought contests between right-wing extremists and “normal” Republicans attempting to stop the hostile takeover of the GOP by Trump loyalists.

          As always, we must recognize that polls do not control or predetermine the outcome of any contest. But we can learn from them. If GOP did have a higher turnout rate in the 2022 primaries, we still have time to fix that situation. Indeed, in politics, much of the heavy lifting gets done in the last four weeks of a campaign. We still have plenty of time to make a difference in contests up and down the ballot. If you have been waiting for the right moment to jump into the political waters, now is that moment! Every single vote matters, and no effort is wasted! Keep up the good work, everyone!

          Talk to you tomorrow!