By Steve BermanAfter U.S. District Judge Aileen Cannon indicated her “preliminary intent” to appoint a special master to review the evidence seized from Mar-a-Lago by the FBI on August 8th, the government responded in two ways. “It’s too late, baby” was the first shot, saying that the FBI had completed its “taint team” work and the evidence has all been reviewed and handed over to the prosecution team. “It’s a conspiracy!” was the second shot.
The first argument contends that Trump’s motion is moot, since a special master would be doing work that’s already done, according to the FBI. Andrew McCarthy noted in National Review that “the Justice Department has already gotten through its review of what it deemed to be privileged information — by assuming that what was potentially privileged was much narrower than what Trump claims is privileged.”
The government’s standard is based on past rulings dealing with ex-presidents and executive privilege, and what it considered attorney-client privilege. McCarthy goes into the legal weeds, but the gist of it is that President Biden made a political decision to treat Trump as an enemy of the state, and grant no privilege to anything he did. He characterized the government’s response as “Justice Department hardball.”
As for Judge Cannon, McCarthy wrote that if he were her, “I’d be livid” at the government’s bulldozing of Trump’s motion.
The government has put itself in a conundrum of its own making. If it intends to prosecute and indict Trump for violations of the PRA and laws dealing with the handling of classified information, the “taint team’s” handing over of documents to the prosecution team that a court-appointed special master would find to be privileged would greatly harm their case. Then again, if they don’t intend to prosecute, it won’t matter at all.
But it it doesn’t matter at all, what was the purpose of the search warrant on August 8th in the first place? If it was just a retrieval mission, then why did the DOJ publicly release this photo?
The DOJ contends that classified documents were “likely concealed and removed” from Mar-a-Lago in an effort to obstruct their investigation. The way the evidence is laid out reminds me of the drug raid photos regularly released when law enforcement makes a big bust. It’s clearly intended to show how Trump and his staff casually treated highly classified documents bearing the “TS/SCI” cover page, mixing them in with other papers and storing them in a Bankers Box.
The government’s position is that Trump is a clear and present danger to national security, a mastermind who is plotting seditious and treasonous acts against the United States; and also that he’s a bumbling fool, who, despite being a billionaire, left the evidence in desk drawers in his office.
Also, the government’s position is that it doesn’t matter if the primary case is tainted, as long as the narrative is presented to the public. Keep in mind, that the government has about as open-and-shut a case on PRA violations as it could possibly want. All it had to do was not proceed at breakneck speed, and let Trump’s lawyers have their say.
Judge Cannon will preside over a hearing tomorrow on the special master, and possibly Trump’s earlier cease and desist motion, which she did not grant, but also didn’t rule out. The government went ahead with its own plans as if none of that had occurred. Today, Trump’s legal team gets to respond to the government.
I’m sure whatever they say, folks who want Trump locked up will take it as so many lies. And Trump supporters will defend him. The government’s approach here is puzzling, because it makes it’s case more fraught. But if viewed politically, in the home stretch to midterm elections, it makes more sense. Keep Trump in the news, promote the narrative casting him in the worst light, but don’t worry about convicting him—or at least making a conviction stick. As long as Democrats make gains in November.
Don’t say that this is just about legalities and justice. The FBI is shot through with partisan politics. Look at former FBI Assistant Special Agent in Charge of the Washington Field Office, Timothy Thibault. He’s no longer with the FBI, Fox News and other media reported. Thibault was accused by a whistleblower of withholding evidence and interfering to squash an investigation of Hunter Biden.
Republican Sen. Chuck Grassley, as ranking minority member of the Judiciary Committee, wrote a letter to FBI Director Christopher Wray and Attorney General Merrick Garland.
“As you are aware, Assistant Special Agent in Charge Tim Thibault is not the only politically biased FBI agent at the Washington Field Office,” Grassley wrote. He added that “the FBI answers to Congress and the American people.”
Whistleblowers against Trump were treated as heroes by the media. Not so much when FBI agents blow past rules and evidence to protect Joe Biden’s family and reputation.
This doesn’t lessen the gravity of potential cases against Trump. The Fulton County case regarding election interference is still the best shot at holding Trump and his cabal of “stolen election” liars accountable in a real way. The federal government’s behavior harms that effort, because it’s obvious that, to the White House, this is a political operation.
If there’s a conspiracy going on, it’s probably not Trump’s conspiracy. He’s not capable of one, other than a sales pitch or a grift. When the con is over, the con artists scatter or turn on each other. I’m much more skeptical of the motives of lifelong politicians, staffers, consultants and their media connections. Trump knows how to survive, but the people pursuing him are professionals.
If Democrats don’t think voters get a whiff of this toxic gas, they’re whistling past the graveyard. The only thing Democrats have in their favor is that most people agree that Trump is toxic. Democrats need to be careful that they’re not more toxic.
Follow Steve on Twitter @stevengberman.
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