The latest response from former President Donald Trump’s lawyers in the main special case before Judge Aileen Cannon smacks of extremism and desperation, perhaps stemming from his being maneuvered into a legal corner by Attorney General Merrick Garland’s Department of Justice.
Rather than submit a succinct defense to the DOJ’s carefully tailored demand for Judge Cannon to partially uphold her own injunction, just enough to give investigators access to classified documents, Trump’s legal team begins a disjointed “preamble” that takes up nearly a quarter of the filing in which it characterizes the whole matter as just “a dispute over the storage of documents” that falsely criminalizes Trump’s possession of his own presidential and personal records.
Trump’s lawyers use quotation marks around the word “classified,” implying that the classification of documents is suspicious, claim that only a special master can “start to restore order to chaos” and claim the DOJ is trying to “settle the process over.” and proceed directly to a predetermined conclusion.” It’s all on the first page.
The DOJ’s decision to limit its legal argument to only accessing the classified materials is a smart move because it plays the strongest part of its argument — which is that it is not possible to investigate a case involving classified documents without access to the documents — leaving Trump’s lawyers with little choice but to attack the DOJ’s decision to investigate at all.
For example, their use of the phrase “destined conclusion” awkwardly tries to mimic the clichéd “rush to judgment” language famously used by legendary criminal defense attorney Johnnie Cochran in his successful closing argument in the OJ Simpson murder trial. But the conclusion that Cochran disputed was the conclusion of a criminal investigation, which was that OJ Simpson had committed a murder. In contrast, Trump’s attorneys are trying to control the criminal investigation process itself.
The clamor over classification is another example of forced heavy-handedness on the part of Trump’s lawyers, as evidenced by their dismissive statement:[t]The government has unilaterally determined that they are classified.” The “they” are the classified documents. This mocking claim rests on the foolish assumption that government should not dictate what is and is not classified. Their suggestion that judicial intervention is needed to establish these national security issues is a fundamental reversal of the powers and duties of the executive branch.
These are not the usual ways to avoid criminal prosecution. The usual way to defend against a criminal investigation is for defense attorneys to conduct their own investigations and try to convince the prosecutors that they are in the wrong place. In violent crimes, this means arguing that the government suspects the wrong perpetrator. In white-collar cases, it usually means convincing the government that no crime has occurred at all. But it seems Trump’s lawyers aren’t arguing the facts to convince the DOJ that there’s nothing to investigate. Perhaps that’s because it’s hard to argue with the truth that Trump had more than 300 documents in his possession containing material about a foreign country’s nuclear capabilities and information that, if exposed, could potentially endanger the lives of human sources. bring.
This is where the special master gambit comes into play. Asking for a special master is an attempt to exert some control over what documents the DOJ sees, presumably in the hope that the DOJ will not see enough to file a criminal case, for example under the Espionage Act 18 USC 793 for the Improper Possession of and Refusal to Return National Defense Information.
But the DOJ’s shrewd response outwitted Trump’s team by focusing on the fact that a criminal investigation involving national defense cannot take place without access to the materials pertaining to national defense, and simply asking that the investigation be allowed to continue even if the parties were fighting over whether a special master was needed and the exact scope of what the special master might oversee.
This focus also offers Judge Cannon a compromise that would allow her to still maintain a victory for Trump in seeking a special master with the ostensible purpose of boosting public confidence in the investigation, while also risking a humiliating slam-fire. dunk reversal on appeal is reduced.
Another example of the DOJ’s tactical acumen is reflected in the fact that it indicates that one of Trump’s proposed candidates for special master—former federal judge Raymond Dearie—would be acceptable alongside their own candidates—as it objects to attorney Paul Huck , a lawyer with strong partisan ties. This give-and-take strategy increases his chances of appearing reasonable in Judge Cannon’s eyes and also increases his chances of avoiding the selection of a conflicting and clearly partisan candidate like Huck.
Ironically, one of Attorney General Garland’s perceived potential weaknesses is that he spent most of his career as an appellate judge and may have lost all the combative prosecutorial instincts he’d had earlier in his career. But here, while the DOJ is venturing into uncharted legal territory with historically high stakes, Garland’s more than 20 years of experience as an appellate judge can give the DOJ a major advantage.
After all, who knows better how to come up with a judicial solution than a former judge
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