The Justice Department and lawyers representing former president Donald Trump continue to tussle over his request for a special master to review the materials seized from Mar-a-Lago.
It's not just that the two sides don't see eye to eye about whether a special master should be part of the proceedings in the first place — they disagree on fundamental details including who should fill the role, how long the process should take and who should cover the costs, as a joint court filing submitted on Friday reveals.
Responding on Monday to the DOJ's latest attempt to block the move, Trump's lawyers reaffirmed their call for a special master to review the recovered documents, which they said may not actually be classified.
They described the criminal investigation as a document storage dispute that's gotten out of control, and said Trump has an "unfettered right" to access those presidential records. Federal prosecutors say the special master proceedings are harming national security by preventing them from using classified material in their criminal probe.
Each side submitted two picks to be special master for the case on Friday, after U.S. District Judge Aileen Cannon approved Trump's request.
The Justice Department has proposed two former federal judges for the job: Barbara Jones (appointed by Bill Clinton) and Thomas Griffith (a George W. Bush appointee). Trump's picks are senior federal Judge Raymond J. Dearie (appointed by Ronald Reagan) and Paul Huck, Jr. (a conservative lawyer who has served in Florida state government).
Both parties were instructed to respond to each other's candidates today. In a filing Monday afternoon, Trump's lawyers objected to the DOJ's candidates but said that they want to state those objections in front of the judge.
Hours later, the Justice Department submitted a filing rejecting Huck, but saying that Dearie would be acceptable. They noted that he is not fully retired as the Trump team had asserted, but holds a semi-retired senior status and asked the court to consider "whether the special master role would constitute outside employment and what rules and/or restrictions, if any, would apply to his serving in this capacity."
The government lawyers also said they had reached out to Dearie on Monday who confirmed he would be available to complete the work "expeditiously."
Essentially, the two camps were telling Cannon whether they have agreed on a candidate or whether she is going to have to make that decision, as former U.S. Attorney Chuck Rosenberg tells Morning Edition's A Martínez.
"The whole idea here — and I get what Judge Cannon was trying to do, although I don't think she did a particularly good job of it — was to give this process the imprimatur of neutrality, to find a third party, an outsider, somebody with no stake in the outcome to make a review of the documents that were seized and make certain determinations," Rosenberg adds. "I guess any of these people would be fine, but that sort of begets another question ... which is whether you need a special master at all to begin with, and I'm not sure you do."
When choosing a candidate, experience and clearance are key
Rosenberg believes there are two main criteria that Cannon will take into consideration when deciding whom to appoint as special master.
"The nominees for the job ... all strike me as okay, but experience and the ability to hold and maintain a security clearance would be foremost among their qualifications," he says.
Security clearance is important because there might be classified documents at issue. Rosenberg stresses the word "might" because the Justice Department doesn't believe that the special master should be overseeing that particular part of the case. And he says former federal judges all have experience handling these sorts of issues, which is important too.
The timeline is another point of contention
The Justice Department would like the review process to wrap by mid-October, while Trump's legal team wants it to run for 90 days (which means it would finish after the midterm elections).
If the Justice Department had its way there wouldn't be a special master at all, Rosenberg points out. He says the department wants to expedite the process so that it can resume its investigation into the obstruction and mishandling of government secrets, because "investigations don't get better with age."
"That's a way of thinking about the Trump team's position," he adds. "Typically for subjects of investigations, for defendants, delay helps because, again, cases don't get better with age."
All roads lead back to the original investigation
Cannon ruled that the Justice Department can't use the seized documents in its criminal investigation until the special master has completed their work. At the same time, she said the intelligence community can continue its review of potential national security risks.
Can those threads be untangled? The government says no. And Rosenberg, who calls this issue "probably the most important aspect" of the case, agrees.
"From my perspective ... they're one in the same," he says. "How do you do a damage assessment unless the FBI is permitted to continue its criminal investigation [into] if documents were passed, for instance? That's something the intelligence community would need to know."
Rosenberg concludes: "It seems like an artificial distinction and the most problematic aspect of Judge Cannon's ruling."
This interview was produced by Kaity Kline and edited by Nell Clark.
A MARTINEZ, HOST:
The Justice Department is trying to stop the appointment of a special master to review material seized from Mar-a-Lago that former President Donald Trump may have a right to keep private. But while its appeal is pending, the DOJ and Trump's lawyers each have had to propose two people to serve as the independent reviewer. Judge Aileen Cannon will make that final decision. Here to explain the selection process, we have with us former U.S. attorney Chuck Rosenberg.
Chuck, the Justice Department is proposing two former federal judges, the first, Barbara Jones, appointed by Bill Clinton - the other, Thomas Griffith, appointed by George W. Bush. What do you make of those two picks?
CHUCK ROSENBERG: Well, I think they're both fine picks. The idea here, A, of course, is to have somebody who's neutral and independent, help the federal district court judge sort through some of the issues. Of course, there's some contest between the Trump team and the Department of Justice over whether that's even appropriate to begin with.
MARTINEZ: So on the other side of things, the Trump team is suggesting Raymond Dearie, a former federal judge appointed by Ronald Reagan, and conservative lawyer Paul Huck Jr., who has served in Florida state government. What do you think of those two choices? Would either be acceptable to the DOJ?
ROSENBERG: Well, that's something we're going to find out perhaps a little bit later today because both parties are supposed to go back to Judge Cannon today, Monday, and let her know whether they have agreed on a particular special master or whether they still remain apart. And this is something she's going to have to resolve. Look; the whole idea here - and I get what Judge Cannon was trying to do. Although, I don't think she did a particularly good job of it - was to give this process the imprimatur of neutrality, to find a third party, an outsider, somebody with no stake in the outcome, to make a review of the documents that were seized and make certain determinations. I guess any of these people would be fine. But that sort of begets another question, A, which is whether you need a special master at all to begin with. And I'm not sure you do.
MARTINEZ: And I was thinking, with Paul Huck, his wife is an 11th Circuit justice. Some of these appeals might be headed to the 11th Circuit if they get that far. Would that almost, in some ways, eliminate him? Or should it eliminate him?
ROSENBERG: Well, it might eliminate her, right? If he takes on this role as special master and the case ends up on appeal in the 11th Circuit, where she sits, as you say, A, it might mean that she has to recuse herself. But I think we're a couple of steps away from that right now.
MARTINEZ: What criteria might the judge take in consideration when deciding who to appoint as the special master?
ROSENBERG: Well, certainly somebody with a security clearance because there might be classified documents at issue. The reason I say might is the Department of Justice doesn't believe that the special master ought to be overseeing that part of the case. Somebody with experience - so, you know, former federal judges all have experience handling these sorts of issues. So you know, the nominees for the job, the two from the Trump folks and the two from the Department of Justice folks, both strike me - or all strike me as OK. But experience and the ability to hold and maintain a security clearance would be, you know, sort of foremost among their qualifications.
MARTINEZ: Now, the other component of this is timeline. The Justice Department wants to streamline this, keep it to right about a month. October 17 is the date when they would love to see this all be done with. On the other hand, the Trump team wants to review pretty much everything seized at Mar-a-Lago. And they want this to go the full 90 days. That's past the midterm elections. Does either approach, Chuck, seem more or less reasonable to you?
ROSENBERG: Well, actually, if the Justice Department had its way, they wouldn't have any special master...
ROSENBERG: ...At all, right? So the Justice Department has an interest in expediting this, in being permitted to resume its investigation, because investigations don't get better with age. That's a way of thinking about the Trump team's position. Typically, you know, for subjects of investigations, for defendants, delay helps - right? - because, again, cases don't get better with age. So the Department of Justice certainly, A, wants to expedite this, move this as quickly as possible. And if they had their way, there wouldn't be any special master at all.
MARTINEZ: And one more thing. Judge Cannon has said that the DOJ could not use these documents in its criminal investigation until the special master's work is done. She did say the intelligence community could continue its review of potential risks to national security. The government, though, says that these two things cannot be untangled from one another. Can you help us explain why?
ROSENBERG: Yeah. That's a great question and probably the most important aspect of this. The judge said that the Department of Justice and the intelligence community could continue its damage assessment, but that the FBI couldn't continue its criminal investigation. From my perspective, A, they're one and the same. How do you do a damage assessment unless the FBI is permitted to continue its criminal investigation if documents were passed, for instance? That's something the intelligence community would need to know. So it seems like an artificial distinction and the most problematic aspect of Judge Cannon's ruling.
MARTINEZ: That's former U.S. attorney Chuck Rosenberg joining us via Skype.
ROSENBERG: My pleasure. Transcript provided by NPR, Copyright NPR.