- Trump’s bid to have a special master review Mar-a-Lago documents appears to have backfired.
- His request invited more legal scrutiny, which allowed the DOJ to release damaging information to the public.
- Legal experts also questioned the executive-privilege argument he made to justify a special master.
When a federal judge on Saturday signaled her willingness to let a special master review the documents the FBI took from Mar-a-Lago, some in Donald Trump’s circle hailed it as a triumph.
They had argued that the FBI acted wrongly in seizing troves of documents from the former president’s residence, and a review from a third-party official could find FBI malpractice.
But in the wake of Tuesday’s 36-page filing by the Justice Department arguing against the request, it’s increasingly looking like a strategy that backfired, legal experts say.
“The Trump filings for a Special Master were a huge misstep. DOJ has used its response to disclose damning proof of a series of crimes, which it would not otherwise have been able to do,” tweeted Andrew Weissman, who served as one of the lead prosecutors on Robert Mueller’s investigation into Russian attempts to influence the 2016 election.
Weissman also mentioned what he called a “compelling photo,” which showed documents marked as highly classified and containing “sensitive compartmented information.”
In the Tuesday filing, the DOJ described the highly classified nature of the information Trump held at Mar-a-Lago, some so sensitive that even the FBI agents involved in retrieving the documents had to seek special permission to view them.
It also claimed that Trump’s aides sought to obstruct the investigation and conceal information from the FBI before the August 8 raid, and alleged that top-secret documents were haphazardly kept alongside Trump’s personal belongings.
“Evidence of commingling personal effects with documents bearing classification markings is relevant evidence of the statutory offenses under investigation,” the DOJ said.
All in all, it presented evidence that the raid was conducted on the basis of significant evidence and in response to obstruction, and was not the poorly executed political hit job Trump has sought to portray it as.
The photo submitted by the DOJ showed highly-classified documents apparently kept alongside a framed TIME magazine cover depicting Trump.
Executive-privilege argument also likely to fail
Trump has sought to have the documents reviewed, and retrieve some, by claiming that they were covered by the concept of executive privilege that shields many personal presidential communications from scrutiny by Congress or the courts.
In a Monday filing, the DOJ said it had searched through the documents and found a small number of items covered by attorney-client privilege, though it did not address the issue of executive privilege.
One legal expert told Insider that this is a legal defense that is likely to fail, explaining why the DOJ gave it short shrift.
Michael Stern, who served as legal counsel to the US House of Representatives, described it as a “long shot.”
He said Trump’s success depended on being able to assert executive privilege against the current administration.
President Joe Biden’s White House has said that it had no direct involvement in the probe, but has declined to assert privilege over the material the National Archives and DOJ sought from Trump.
“It seems extremely unlikely that Trump would be able to make this showing for the documents that are in any way relevant to the government’s criminal investigation here or which present national security concerns,” he said, noting that only records between a former president and his advisors might be covered under executive privilege.
The concept “does not apply to what are known as state secrets (documents relating to foreign policy, national security, etc) which only the incumbent president can assert,” said Stern.