The independent arbiter tasked with inspecting documents seized in an FBI search of Donald Trump’s Florida home said on Tuesday he intends to push briskly through the review process and appeared skeptical of Trump lawyers’ reluctance to say whether they believed the records had been declassified.
“We’re going to proceed with what I call responsible dispatch,” Raymond Dearie, a veteran Brooklyn judge, told lawyers for Trump and the Department of Justice in their first meeting since his appointment last week as a so-called special master.
The purpose of the meeting was to sort out next steps in a review process expected to slow the criminal investigation into the retention of top-secret information at Mar-a-Lago. Dearie will be responsible for sifting through the thousands of documents recovered during the 8 August FBI search and segregating any that might be protected by claims of executive privilege or attorney-client privilege.
Though Trump’s lawyers requested the appointment of a special master, they have resisted Dearie’s request for more information about whether the seized records had been previously declassified – as Trump maintains. His lawyers have consistently stopped short of that claim even as they asserted in a separate filing on Tuesday that the DoJ had not proven that the documents were classified. In any event, they say, a president has absolute authority to declassify information.
“In the case of someone who has been president of the United States, they have unfettered access along with unfettered declassification authority,” a Trump lawyer, James Trusty, said in court on Tuesday.
But Dearie said that if Trump’s lawyers will not actually assert that the records have been declassified, and the DoJ makes an acceptable case that they remain classified, he will be inclined to regard them as classified.
“As far as I’m concerned,” he said, “that’s the end of it.”
In a letter to Dearie on Monday night, the lawyers said the declassification issue might be part of Trump’s defense in the event of an indictment. Trusty said the Trump team should not be forced at this point to disclose details of a possible defense.
He denied that the lawyers were trying to engage in “gamesman-like” behavior but said it was a process that required “baby steps”. He said the right time for the discussion is whenever Trump presses forward with a claim to get property back.
Dearie said he understood the position but observed: “I guess my view of it is, you can’t have your cake and eat it.”
The Trump lawyers’ recalcitrance included an acknowledgment that the investigation could be building toward an indictment.
The three statutes the DoJ listed on a warrant do not require that the mishandled information be classified in order for prosecutors to initiate a criminal case.
The special master’s work includes inspecting roughly 11,000 documents, including about 100 marked as classified.
A US district judge, Aileen Cannon, a Trump appointee who granted the request for a special master, had set a 30 November deadline for Dearie’s review and instructed him to prioritize classified records.
Dearie, a Ronald Reagan appointee, made clear during Tuesday’s meeting that he intended to meet the deadline.
Julie Edelstein, a DoJ lawyer, said she was hopeful the department could get the documents digitized and provided to Trump’s lawyers next week. She noted that the department had given the legal team a list of five vendors approved for scanning, hosting and otherwise processing the records.
Dearie instructed Trump’s lawyers to choose a vendor by Friday.
Earlier, the Trump legal team urged an appeals court to leave in place Cannon’s order temporarily barring DoJ use of the classified records for its criminal investigation while Dearie completes his review. The DoJ is contesting Cannon’s requirement that it provide Dearie with classified materials, saying such records are not subject to any claims of attorney-client privilege or executive privilege.
The DoJ has also said that Cannon’s order has impeded its investigation. Trump’s lawyers called those concerns overblown, saying investigators could still do other work without scrutinizing the seized records.