(Sept. 15, 2022, 7:50 p.m. EST) UPDATE: Judge Aileen Cannon turned down the DOJ’s request for a partial stay of her injunction on Thursday evening. Additionally, she selected Raymond Dearie, a senior U.S. district judge for the Eastern District of New York, as the special master of the court.
Donald Trump has thrown one monkey wrench after another into the government’s inquiry into extremely sensitive government papers being held at Mar-a-Lago ever since an alarmed and frustrated FBI eventually executed a search warrant at the former president’s Mar-a-Lago resort on August 8. The location of the passports—in the former president’s desk drawer with classified documents—is proof that Trump was aware of the classified document, according to angry statements on Truth Social. Most recently, there was a contentious request that the court appoint a special master to examine the seized documents for attorney-client and executive privileges.
Trump has thrown a series of stumbling blocks in the way of the government’s inquiry into extremely sensitive federal documents.
Trump’s strategies have gained some support. The government was prohibited from studying any of the confiscated papers or using them in its investigation while the special master’s review was pending, according to federal judge Aileen Cannon, who also allowed the appointment of a special master. The Department of Justice claims that this is a hopeless situation. The DOJ argued persuasively that pre-existing secret government records could not in any way violate the attorney-client privilege or the executive privilege in its request to the judge to stay her injunction with regard to the confiscated classified documents. The DOJ is prepared to challenge her decision. Trump and his attorneys have requested that Cannon disregard the DOJ’s request and maintain the injunction.
So, a power struggle over who will lead the government probe is currently taking place in West Palm Beach. The DOJ Trump? the tribunal?
It doesn’t really matter in the end. Donald Trump’s improper possession of sensitive documents at Mar-a-Lago cannot be changed by him or the Florida court. The special master’s decision will not determine whether the DOJ would ultimately charge Trump with a crime.
Trump’s special master petition was recently referred to as a red herring by William Barr, Trump’s former attorney general. He was correct about it, too. A red herring is a fish from the northern European seas that is oily and pungent. Fox hunters in England had to find a way to keep the excitement of the chase going after their hounds were too good at finding their prey. They eventually began dragging obnoxious red herrings around to briefly distract the dogs from the foxes’ scent.
Trump has a ton of red herrings at his disposal to divert attention from and stall the government probe thanks to the mantle of his former job. But eventually the dogs will track down the foxes when it comes to obstructing the course of justice and having confidential government records.
Even if Cannon’s designation of a special master is frustratingly vague and desperately in need of clarification, it won’t affect the investigation’s final result. It was highly unlikely that anyone would ever face criminal charges from the Department of Justice so close to the midterm elections. Less than 60 days remain until those elections, and filing charges at this time would be a violation of Article longstanding DOJ policy designed to avoid the appearance of partisanship.
For the DOJ, Trump’s request for a special master and the court’s approval of it are routine tasks.
Even if the court-ordered special master review is ignored, it’s likely that the DOJ will need additional months to complete its inquiry. In its most recent filing, the DOJ argued that it was still necessary to ascertain the precise circumstances surrounding the removal of the documents from the White House, their storage at (and perhaps moved around) Mar-A-Lago, and the actions taken by Trump’s team to abide by the federal grand jury subpoena issued on May 11, 2022. That implies that DOJ still needs to devote some effort towards putting all the puzzle pieces together.
The DOJ has been time-consumingly diverted by the search warrant case, but the inquiry will not be derailed by it. Attorneys at the DOJ are litigators, whereas FBI agents are investigators. Investigations and court cases are frequently filled with surprises. Equipment malfunctions, fresh witnesses present new information, judges render unforeseen decisions, and jurors call in sick. Dealing with unforeseen circumstances is a necessary element of the work. For the DOJ, Trump’s request for a special master and the court’s approval of it are routine tasks.
But in terms of what many Democrats could believe is the bigger picture—charging Trump with a crime and stopping him from running for president in 2024—the discussion about the appointment of the special master is itself a red herring.
Even if the evidence supports an indictment of Trump, there may be solid arguments against it. For instance, accusing Trump might exacerbate the ideological divide in the nation or increase the likelihood that very sensitive national secrets would need to be revealed in court.
DO YOU WANT MORE POSTS LIKE THIS? SUBSCRIBE TO THINK ON INSTAGRAM TO RECEIVE UPDATES ON THE WEEK’S KEY POLITICAL ANALYSIS Most importantly, it’s unlikely that even a criminal conviction will stop Trump from running for office again. Contrary to popular assumption, a person need not be a convicted felon to run for president of the United States. Although there are hypotheses that some claim could prevent Trump from becoming president, those theories lead to an impressive array of legal challenges.
Ultimately, whether Cannon chose to appoint a special master to evaluate records will have no bearing on whether Trump is elected to a second term as president. What matters most will depend on something much more fundamental to our democracy: whether Americans believe Trump is capable of leading the free world.