Trump’s legal team on Monday asked a federal judge to appoint a “special master” to ensure the Justice Department returns any private documents taken from his residence, maintaining that his constitutional rights were violated.
The request for a special master — an independent legal official — is not a surprising one, and may well be granted in such a case. It is a move that can be used to ensure that legally privileged or other similar documents collected by investigators are not drawn unnecessarily or unfairly into an ongoing case.
But in many other ways, Trump’s filing — the most concrete and aggressive formal legal move in the case so far — is a classic of its genre. It fits squarely into the ex-President’s history of using the legal system to delay, distract, distort and politicize accusations against him, a strategy that has often worked well to spare or postpone serious accountability. And it is also a characteristic example of how the former President often mixes and matches political and legal strategies when he comes under investigation.
While the motion is a formal legal document, it serves as a political roadmap that explains how Trump would style himself as a presidential candidate persecuted, as he sees it, for partisan reasons by the Biden administration. It’s also offers 27 pages of talking points for Trump’s GOP allies and serves to take the focus away from the core questions in the case: did he illegally and recklessly keep classified information and government secrets to which he was not entitled and which could put national security as risk? And did Trump or those around him try to obstruct the investigators from continuing their pursuit?
The gambit also once again underscores the extraordinarily sensitive stakes of the investigation and the political hornet’s nest disturbed by the Justice Department in going ahead with the search of Trump’s home. Such an operation at the home of any former president would be a deeply serious undertaking. The involvement of Trump — who’s nursing a false grievance over his exit from power, who knows how to turn attempts to hold him to account into fundraising ammunition and who has incited violence — means the current case is one of the most serious in the DOJ’s modern history. This reality appears to put even more of an onus on the department to explain and justify its actions and to provide the maximum amount of transparency possible to the public.
But it also underscores yet another truism of Trump’s career in politics — the simple act of investigating him inevitably exposes the institutions set up to constrain presidents and enforce the law to a backlash that leaves them politicized and often illegitimate in the eyes of his millions of supporters.
New legal clashes loom
Judge Bruce Reinhart, meanwhile, wrote in an order on Monday that he was satisfied that the facts in the affidavit are “reliable” and that while he understood calls for transparency, agreed that the Justice Department has genuine reasons, including the need to protect witnesses, for stopping the disclosure of information in the document.
The ostensible purpose of Trump’s filing is to secure the appointment of a special master in the case. CNN legal analyst Elie Honig said that the request appeared on its face to be fair under the circumstances.
“I think Donald Trump has a fairly good chance of prevailing,” Honig said on “The Lead with Jake Tapper” on Monday. “It’s a reasonable request. It’s actually not unprecedented.”
If material is discovered that is subject to attorney-client privilege or executive privilege, the special master could ensure that it is not passed on to prosecutors.
Still, the move could also be seen as a way to delay the case against Trump, and to push it further into campaign season — ahead of November’s midterm elections and the already stirring 2024 presidential race — and make it easier for the former President to cement the impression that he is being targeted for political reasons. On the other hand, the government has already had the documents for two weeks and the ex-President’s legal team has not previously made such a request.
Parts of the motion filed by Trump’s team on Monday bore all the hallmarks of a document either prepared for, or with, the ex-President’s predilections in mind. It was far more lively than a typically dry legal motion. It seemed at times an attempt to troll the legal system and even adopted a boastful tone in describing Mar-a-Lago, lauding it as a “historic landmark” with 58 bedrooms, 33 bathrooms, on 17 acres and bearing a name that means “sea to lake.”
The filing opened with a statement that “politics cannot be allowed to impact the administration of justice” — a claim that came with considerable chutzpah since Trump was often accused in office of politicizing the Department of Justice.
It went on to state that “President Donald J. Trump is the clear frontrunner in the 2024 Republican Presidential primary and in the 2024 General Election should he decide to run. Beyond that his endorsement in the 2022 mid-term primary elections has been decisive for Republican candidates.”
Trump’s team then put his complaints about the search, previously delivered on social media, into a formal legal framework with the words: “Law enforcement is a shield that protects Americans. It cannot be used as a weapon for political purposes.”
There is a clear implication in the document that Trump, as a former president or as a potential 2024 presidential candidate, should not have been subjected to such a search. If this standard were adopted, it would offer potential impunity to anyone involved in politics. The Trump team’s implicit argument is also consistent with the belief, which he showed throughout his presidency, that he had special status that made him immune from the widely understood constraints of the law.
Trump leverages legal case to seek political opportunity
In legal terms, the search of his residence could be disastrous for the former President if it emerges that he broke laws, especially on the handling of the most sensitive national security material. It is not possible to know from the limited material available publicly how any case against him might turn out. But Trump has left little doubt that he sees the search as a massive political opportunity. And he’s leveraged the moment to effectively force potential GOP presidential primary rivals to step in behind him and condemn it.
As Trump has throughout his time in politics, the legal filing from his team appeared to take considerable liberties with the facts of the FBI search and the process that led up to it. It blamed the bureau’s “shockingly aggressive move” that it said came with “with no understanding of the distress that it would cause most Americans.” That half-line is characteristic Trumpian exaggeration.
The document goes on to argue that the ex-President offered extraordinary and cordial cooperation with the National Archives and the FBI. But it also overlooks the fact that the search went ahead on the basis of a warrant approved by judge on the grounds that a probable crime had been committed.
The arguments in the filing also seem to conflict with other publicly known aspects about the government’s approach — including requests by the National Archives for the return of documents, the DOJ’s involvement, a subpoena that was served on Trump for the material and the fact that agents still did not get what they wanted when they visited the former President at the property before they sought a search warrant. Not to mention that, according to CNN and New York Times reports, a lawyer for Trump told investigators in writing that no classified records were left at Mar-a-Lago after June. The FBI said in an inventory list at the end of its search that there were additional classified documents retrieved.
The motion also contains yet another classic Trump flourish.
It reveals that on August 11, 2022, counsel for Trump spoke with one of the lead officials in the case, Jay Bratt, the chief of the counterintelligence section in the DOJ’s national security division. The message was intended for Attorney General Merrick Garland.
“President Trump wants the Attorney General to know that he has been hearing from people all over the country about the raid. If there was one word to describe their mood — it is ‘angry.’ The heat is building up. The pressure is building up. Whatever I can do to take the heat down, to bring the pressure down, just let us know.”
This statement is remarkable since it was Trump who announced the search of his resort. And he used his social media network to initiate a backlash among his followers and to deliver a political dividend.
The message comes across as an implicit threat — about the consequences of investigating the former President — that is chilling in the aftermath of the January 6 insurrection. The approach also recalls previous Trump efforts to contact, and possibly influence, authorities who are investigating him. His attempt to co-opt former FBI Director James Comey during the Russia investigation, whom he later fired, comes to mind.
Trump’s new lawsuit could succeed in advancing some of his legal goals — such as they are. But it’s a reminder of the legal and political ordeal that the country faces with an investigation into a combative and angry former president who is also showing every sign of weaponizing it to bolster his 2024 election bid.
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