Big day in the Trump special master case

Watch this space for more developments

Senior Judge Raymond Dearie, sitting in the Eastern District of New York in Brooklyn, fired a warning shot over Trump’s head in his first act as special master in the case of the 11,000 documents Trump removed from the White House upon leaving the presidency, which he refused for months to return to the government as required by law.

At issue before Judge Aileen Cannon in Florida, and now before the 11th Circuit Court of Appeals in Atlanta in the appeal filed by the Department of Justice last Friday, are 100 classified folders containing an unknown number of secret documents which the DOJ wants the Circuit Court to release from Cannon’s stay restricting their use by the FBI and DOJ.  Trump has publicly claimed that he declassified the documents in question in multiple tweets and other public statements, but notably, his lawyers have refrained from making the same claim in their filings opposing the DOJ’s motion to release them for use in its criminal investigation of Trump. 

Trump’s lawyers have called the classified documents Trump held in Mar a Lago “alleged classified documents,” and Judge Cannon has seemed to question whether the documents are indeed classified as their markings would indicate and which the DOJ has said they are. 

In Dearie’s letter to both the Trump lawyers and the DOJ yesterday laying out a proposed schedule for his work as special master, the judge in effect told Trump to put up or shut up about declassifying the secret documents he held.  In their response to the judge’s proposed schedule, Trump’s lawyers squawked loudly: “The Draft Plan requires that the Plaintiff disclose specific information regarding declassification to the Court and to the Government,” Trump’s lawyers wrote.  “The Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.”

Got that?  For the first time, Trump has allowed his lawyers to acknowledge that he faces a potential indictment, and he does not want to be forced to show his hand before the indictment comes down and the prosecution demands that he do so.

In plain English, Trump and his lawyers are understandably reluctant to answer the judge about whether or not Trump declassified the documents held at Mar a Lago because Judge Dearies has faced them with the option of either telling the truth or lying.  Having gotten away with lying in public for his entire adult life, Trump is clearly uncomfortable with the position he has put himself in:  legal proceedings in court, before a judge, require that parties tell the truth, and lies told by either the plaintiff – Trump – or his lawyers are punishable.

Trump’s problem is that he took a whole slew of classified documents out of the White House, which the government subsequently seized, but he has no corresponding documents proving his statements that he declassified them.  If they had been declassified, the documents themselves would have markings declaring them to be “declassified.”  None of the documents seized from Mar a Lago or turned over to the National Archives or to the DOJ have such markings.

Declassification is a complicated and lengthy process.  If a document is to be declassified, it must be sent to the agency which first classified it to be reviewed.  At this point, the agency can object to the declassification and provide reasons why it should remain secret.  If there are no objections, the document is sent around to other intelligence agencies or to the Department of Defense, if the DOD had used the document, and those agencies get an opportunity to review it and object to its declassification on the grounds that it might compromise ongoing operations, endanger a human source used in the production of the document, or reveal sources and methods of obtaining intelligence.

After this lengthy process, the document is returned to the agency which produced it for a final review and formal declassification.  At that point, the document essentially becomes a record that would be available to the press and to the public via a Freedom of Information application, or it might be publicly released by the person or agency that requested the declassification. 

Trump’s big problem is that he wanted secrets, not public information, because secrets have value that publicly available information does not.  What good is a classified document if everyone knows what it says?  If Trump had in fact declassified the documents in question, there would have been no argument about them in court before either Judge Cannon or the Circuit Court, and certainly there would be no reason for Judge Dearie to question Trump and his lawyers as to whether they had been declassified.

It's a box Trump himself constructed and locked himself into through a combination of arrogance and ignorance.  Trump kept the documents because he believed “they are mine,” as he has said several times, an act and allegation of totalitarian levels of self-regard.  But he had no knowledge of what is involved in declassifying information because he had never formally done so.  He knew all about revealing secrets, as he did when he revealed secret information about Israel to the Russian ambassador and foreign minister only days into his presidency, and which he probably did in his private meeting with Vladimir Putin at Helsinki, which he held without any aides or even his own translator, agreeing to use Putin’s instead.

He could have let the DOJ have the classified documents the FBI took from Mar a Lago and been done with it.  Instead, he went into court and asked for a special master to review the documents, and now here he is, having to respond to the demands of the very person he got a federal judge to appoint for the purpose of going through Trump’s professional underwear drawer, as it were.

Welcome to your big day, former President Trump, and good luck.  You’re going to need it.