DOJ Agrees To Trump’s Proposed Special Master

The DOJ smartly agreed to one of the choices that Trump’s team offered up to serve as special master over the materials seized at Mar-a-Lago. Without admitting that a special master is proper or needed, the DOJ accepted team Trump’s offer of Sr. U.S. District Court Judge Raymond Dearie, whose chambers are in Brooklyn. The move is masterful in that Twitter was replete yesterday with prominent attorneys vouching for Dearie as one of the most respected judges in the country with an impeccable past as a fair and intelligent jurist. The fact that DOJ made the move to select one of Trump’s proposed candidates cuts off any accusation that the process was rigged or unfair to Trump. From the Washington Post:

The Justice Department filed court papers Monday signaling that it would accept a former chief federal judge in New York as a special master charged with reviewing papers seized by the FBI from former president Donald Trump’s Mar-a-Lago residence and club.

U.S. District Judge Aileen M. Cannon must approve Raymond J. Dearie’s appointment for the document review — which has stalled the Justice Department’s criminal probe — to go forward.

Dearie, 78, still serves as a judge in Brooklyn federal court, albeit on senior status, which means he can take a reduced caseload if he chooses. Dearie was nominated to the federal bench by President Ronald Reagan and became one of the most highly regarded jurists in the Eastern District of New York.

To be sure, the DOJ still strongly objects to the use of a special master at all and is forcefully appealing the review. But they cannot presume that they’ll win the appeal with the speed desired, and – perhaps, the sooner the special master starts working, the sooner one will be done. DOJ’s focus remains on the criminal investigation and getting the injunction against the investigation lifted as soon as possible.

Time is of the essence. Judge Cannon said that the Justice Department could continue its national security review but, just as DOJ said in its filings and just as this site has said in the past, the criminal investigation inextricably overlaps with the national security review and thus investigating our national security posture endangers any future prosecution. If Trump were ever to be charged, one could expect Trump’s attorneys to say that the DOJ ignored Cannon’s ruling to stop the criminal investigation (even though the evidence was found in a national security review), which could cause the case to be thrown out prior to trial or in an appeal after a conviction. One doesn’t need a law degree to understand that dynamic.

So DOJ’s focus remains on getting Cannon to lift her own stay and, absent that order, an emergency filing with the 11th Circuit, asking them to lift the stay pending hearing the full appeal, probably also on an expedited basis. Normally, judges are loathed to involve themselves in anything that touches upon national security, which is one of many issues the DOJ has with Cannon’s order. Moreover, attorneys such as Bill Barr, Andrew Weissman, and Barbara McQuade, among many others, are on record stating that they’ve never seen an order halting a criminal investigation based on an argument over documents. There can be an argument down the line, if charges are filed, about whether the evidence is admissible, but judges do not order investigations to stop. Most attorneys believe that the 11th Circuit could lift the stay on investigating the criminal matter as part of its national security review.

But agreeing to Trump’s proposal of Judge Dearie is a deft move that helps DOJ look even more reasonable.