A group of former GOP officials and former federal prosecutors who served in Republican administrations has filed an amicus brief in support of the Justice Department’s position that former president Donald Trump has no right to a special master to review documents found in the FBI’s Mar-a-Lago search. The group includes former high-ranking Justice Department attorneys Donald B. Ayer, Gregory A. Brower, John J. Farmer Jr., Stuart M. Gerson and Peter D. Keisler.
In a nutshell, they argue, “Even if there was a legal basis for appointing a special master in this case, which there is not, that appointment would be unnecessary because executive privilege will not apply to any of the seized records as against the Executive Branch.”
Trump, as we learned, never actually asserted a formal claim of executive privilege over the records, which in any case he cannot shield from part of the executive branch, the Biden Justice Department.
The former officials concluded, “To indulge former President Trump’s assertions of executive privilege through the appointment of a special master would simply put off the inevitable, and harm significant national interests in the process by delaying a criminal investigation and intelligence community assessment of damage.”
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U.S. District Judge Aileen M. Cannon will hold a hearing Thursday afternoon regarding the special master request, but the outcome should not be in doubt.
Aside from the special master issue, two questions are now front and center: Whether Trump is being singled out unfairly, as his supporters insist, and whether there are facts in this case that point to “aggravating” factors that normally would be required to bring an Espionage Act case.
“As someone who worked on the restructuring of our classification system while in the White House and who held [top secret/sensitive compartmented information] clearance myself, I can tell you that if I or anyone else had done a fraction of what Trump did here, we would have been prosecuted long ago. DOJ has shown extraordinary patience, but I think that patience is about to run out,” Norman Eisen, co-counsel on the amicus brief with Fred Wertheimer of Democracy 21 and the Paul Weiss firm, tells me.
Facts tying Trump to direct knowledge of the nature of the documents (e.g., allegations he personally went through boxes, and the location of documents in his desks at Mar-a-Lago) will be critical to Attorney General Merrick Garland’s assessment.
This matches Ayer’s experience. “If I had somehow managed, when I left the DOJ as Deputy AG, to take with me a like number of highly classified documents, and had similarly resisted efforts of the government to get them back, I would certainly have been prosecuted and likely ended up in prison," he says.
Keisler doesn’t see any evidence the department is treating Trump less favorably than other defendants. “I think it’s clear the department was exceptionally deliberate and careful in the way it proceeded here, and that it took into account the special sensitivity of dealing with a former president,” he tells me. “It sought a search warrant only as a last resort — more than a year and a half after the documents were improperly taken to Mar-a-Lago — when all other, less intrusive efforts to obtain the government’s documents had been tried and were unsuccessful, and when it became clear that the department could not rely on the truthfulness of the president’s representatives’ statements.”
To seek an indictment, Garland will need to be confident he can prove every element of each of the charges under consideration. He will likely want to make certain he is within the standards previously applied in these kinds of cases.
Traditionally, however, mishandling of sensitive defense and national security materials do not result in prosecution unless there is evidence of some other complicating factor, such as obstruction of an investigation. In a sense, Trump’s claim to have declassified documents (thereby allowing him to share materials with others) suggests reckless disregard for national security.
“If the department concludes that the former president or others in his circle intentionally sought to deceive the government in order to obstruct its investigation, that would significantly elevate the seriousness of this already very serious matter,” Keisler tells me. "The department rightly regards deliberate acts of obstruction as a grave criminal offense.”
It bears repeating that many of the facts are publicly unknown at this stage. The Justice Department’s affidavit was heavily redacted, and while shedding additional light on potential obstruction charges, the brief does not disclose, for example, the number and identity of various witnesses who helped Justice put together its warrant.
That said, “To the extent this and other evidence supports an inference of purposeful conduct to avoid returning the classified documents and is admissible in court, it will weigh very heavily with DOJ in determining whether to file criminal charges against whoever it is that can be shown to have acted with that purpose and intent,” Ayer observes.
In some sense, Garland might have no choice but to indict if the evidence is there both of an Espionage Act violation and obstruction. Eisen explains that if the Justice Department’s filing is accurate, we may have “the combination of the unprecedented alleged willful mishandling of national security information and the allegations of obstruction.”
Refusing to prosecute a glaring, deliberate effort to make off with national security secrets, accompanied by misleading the government and moving around documents, as the Justice Department’s brief contends, is the sort of conduct that cannot go unpunished if we want a functional justice system and protection for our most sensitive national security secrets — whether the defendant is a retired CIA director, a former national security adviser or a former president.