Update: another battle over the special master

The DOJ and the legal team representing Donald Trump jointly filed their proposals for the special master whose appointment is under consideration by Judge Aileen Cannon in Florida. Amazingly, the parties actually agreed on a couple of points in the issue before diverging over the individuals each side is proposing to take up the duties of a special master and what those duties should be.

The government has put forth two interesting choices, both of them former federal judges: Barbara S. Jones, who was appointed to a federal judgeship in the Southern District of New York, and who served previously as a special master in two cases that involved personal lawyers for Trump, Rudy Giuliani in 2021 and Michael S. Cohen in 2017. The DOJ’s other proposed candidate is an interesting one: Thomas B. Griffith, appointed by George W. Bush to the D.C. Circuit Court of Appeals, who retired in 2020. He is well known and respected in legal circles as a solid conservative, and yet he introduced (now) Supreme Court Justice Ketanji Brown Jackson at her Senate confirmation hearing.

Trump’s lawyers put forth a retired Federal District Court judge from the Eastern District in New York, Raymond J. Dearie, who was appointed to the bench by Ronald Reagan; and a former deputy attorney general in Florida, Paul Huck Jr., who also served as counsel to Charlie Crist when he was governor of Florida. Huck is unlikely to be appointed even by a conservative federal judge because he is married to Barbara Lagoa, who was appointed to the 11th Circuit Court of appeals by Trump, and is one of the judges who might be called upon to hear any appeal filed by the DOJ in the special master matter. On its face, the suggestion of Lagoa would seem to be either an error or some kind of backdoor maneuver by the Trump legal team, because she would be called upon to recuse herself from any appeal filed by the government, thus reducing the number of Republican judges on the 11th Circuit able to hear such an appeal from six to five, the number of Democrats on the bench there.

But with Judge Aileen “I never met a corpuscle of Trump’s ass I wouldn’t kiss” Cannon making the determination of who sits in judgement over the Trump documents, who knows?

The two sides disagreed over the cost of the special master, which might end up being in the hundreds of thousands of dollars if not surpassing a million. The government proposes that Trump bear the cost since he is the one requesting a special master; the Trump side suggested that the cost be split. The other main disagreement was over what documents and materials the special master should review. Trump’s team threw in everything seized from Mar a Lago along with the contents of the boxes Trump turned over to the National Archives in January, as well as the 38 classified documents he relinquished in May. The government proposes that all documents with classification markings be off-limits to the special master because, as they pointed out in their motion last week, none of them contain communications between Trump and his lawyers and they are not subject to review as to executive privilege because, as they also previously pointed out, the classification markings prove they still belong to the government, and as such any privilege over them automatically belongs to the incumbent, President Joe Biden. Trump’s team countered with another ridiculous claim, that classified documents are not classified in perpetuity. However, the power to declassify them belongs, again, to the incumbent, not to the civilian who was holding them in unsecure conditions in an office and storage room in his own home.

The other things the two sides disagreed on were essentially details involving bookkeeping and other minor issues.

Except for the timeline, of course. Trump proposed a 90 day time period for the special master’s review. The DOJ proposed setting a deadline of October 17, about two months earlier than the Trump proposal. Ninety days would make the potential release of any of the special master’s findings after the midterms.

Hanging over all of it, of course, is the DOJ’s motion that Judge Cannon should exempt 100 classified documents not only from review by the special master but from her order that the DOJ cannot review them while they are carrying out their criminal investigation of Trump’s handling of the documents. The DOJ has notified the judge that they will file an appeal of her previous order on Thursday if she does not grant their motion.

And so it goes as the drama of Donald Trump’s legal travails grinds on and on with no end in sight.

Watch this space for further updates.