TURLEY ON THE DOJ REFUSAL OF A SPECIAL MASTER IN MAR A LAGO PROBE

via Jonathan Turley

Last night, Department of Justice filed in opposition to the appointment of a Special Master in Florida. It used the filing to add new facts and allegations to the public record, including the statement that “obstructive conduct occurred” at Mar-a-Lago by concealing or moving documents. The Department makes many of the same claims that it used to opposed the release of a redacted affidavit, claims shown to have been misleading and exaggerated after the magistrate ordered the release.  Notably, this filing contained details that were likely redacted in the affidavit but just released on the public record.

In the most direct challenge to the former President’s public claims, the Justice Department claimed that he and his staff had failed to turn over classified material and that the Department had no choice but to search areas outside of the storage room. Indeed, it says that it found three classified documents in Trump’s desk without indicating the level of classification or subject matter.

It also said that the Trump staff barred the FBI from looking at documents in the storage room after turning over classified information to them.

“As the former President’s filing indicates, the FBI agents and DOJ attorney were permitted to visit the storage room. See D.E. 1 at 5-6. Critically, however, the former President’s counsel explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained.”

The filing also adds new disclosures on past claims of declassification by Trump. It states that “[w]hen producing the Fifteen Boxes, the former President never asserted executive privilege over any of the documents nor claimed that any of the documents in the boxes containing classification markings had been declassified.” That was in January 2022.  It then alleges that, in the June 3, 2022 meeting, “neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege.” It is not clear if or when the Trump team made the declassification claim.

The filing also includes this notable allegation:

“The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.”

The Justice Department told the court that it was vindicated in its suspicions and that

“the FBI, in a matter of hours, recovered twice as many documents with classification markings as the ‘diligent search’ that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter.”

It is not clear from the filing if the FBI has evidence of intentional acts of concealment as opposed to negligence in keeping track of such material. However, stating that the FBI believes that “obstructive conduct occurred” is very serious, particularly if the FBI also believes that this conduct was knowingly or intentional obstructive.

The main point of the filing was to address the court’s indication that it wanted a special master appointment. I have supported such an appointment, even at this late date.  Indeed, I felt that this was one of the four failures of Attorney General Merrick Garland in not taking proactive steps to assure that public that this was not a pretextual raid to collect sensitive material for other investigative purposes. It would still have considerable value in the case.

The special master could divide these documents into groups of classified material, unclassified but defense information, and unclassified material outside of the scope of the alleged crimes. The last category would then be returned. That accounting could also offer basic descriptive information on the material without revealing their precise content or titles. The special master could describe material as related to national defense or nuclear weapons (as was previously leaked government sources). The government has already leaked that there was nuclear weapons material being sought. Confirming such general details can be done without giving details on the specific information or even titles for the documents to protect national security. In national security cases, including cases where I have served as counsel, such indexes and summaries are common.

Notably, this filing includes the picture which is being widely distributed. It can, however, leave an obviously misleading impression.

The picture could be seen by many that secret documents were strewn over the floor when this appears the method used by the FBI to isolate classified documents.  However, putting that initial concern aside, there is a question as to the purpose of the attachment. It seems entirely superfluous in releasing this one picture. The picture is Attachment F and the textual reference on page 13 simply says

“Certain of the documents had colored cover sheets indicating their classification status. See, e.g., Attachment F (redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the “45 office”).”

It is curious that the DOJ would release this particular picture which suggests classified material laying around on the floor. The point is to state a fact that hardly needs an optical confirmation: the possession of documents with classified cover sheets. Indeed, the top of roughly half of the documents are redacted in the photos. The government could simply affirmatively state the fact of the covered pages and would not likely be challenged on that point without the inclusion of this one photo.

For critics, the photo may appear another effort (with prior leaks) to help frame the public optics and discussion. Clearly the court did not need the visual aid of a picture of documents with covers. It seems clearly intended for public consumption.

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About the Author: NC Scout

NC Scout is the nom de guerre of a former Infantry Scout and Sergeant in one of the Army’s best Reconnaissance Units. He has combat tours in both Iraq and Afghanistan. He teaches a series of courses focusing on small unit skills rarely if ever taught anywhere else in the prepping and survival field, including his RTO Course which focuses on small unit communications. In his free time he is an avid hunter, bushcrafter, writer, long range shooter, prepper, amateur radio operator and Libertarian activist. He can be contacted at [email protected] or via his blog at brushbeater.wordpress.com .

One Comment

  1. Paulo September 1, 2022 at 14:05

    ‘We’re Witnessing The Final Collapse Of Govt | Edwin Vieira Jr, PhD, JD’

    …”The FBI raid of Trump’s Mar-a-Lago resort is opening
    questions about the power the FBI and other government
    agencies have. There is a growing disregard for the fourth amendment, says Dr. Edwin Vieira Jr., PhD, JD.

    “In the final collapse of states – governments – it’s corruption
    that does it,” he says. The “shears of corruption” cut the link
    between the checks and balances in government. “That’s what
    we’re seeing right now,” he points out”…

    1 hour 4 minutes
    https://www.youtube.com/watch?v=RKp_RPjrpoQ

    “Every man to his family and his possessions”

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