Trump's legal team should have known better than to ask for a special master

To the untrained and the unwary, defending a person accused of a criminal offense may mean deploying a “win at all costs” strategy. But when Donald Trump’s defense team requested a special master to review records that were lawfully seized from Mar-a-Lago under a search warrant, we saw the startling hubris of defense attorneys who seemed to have closed their eyes to the law when it did not suit their goals.

Wanting a special master was right out of Trump’s stalling, obstructing and using the time to play the victim circus act. The 11th Circuit U.S. Court of Appeals ruling Thursday that a district judge was wrong to appoint such a review of the documents and stop the Justice Department from using them in its criminal investigation of Trump was the right move. 

We saw the startling hubris of defense attorneys who seemed to have closed their eyes to the law when it did not suit their goals

Trump’s defense team had to know its request was meritless based on the separation of powers. In fact, a grade school social studies class (I’m surely dating myself now) may have known it. That’s where many first learn that the legislative branch makes the law, the executive branch enforces the law, and the judicial branch interprets the law.   

Every defense attorney with a pulse knows, or should know, that the judicial branch, in just about every instance, has no right or authority to butt into a criminal investigation conducted by the executive branch (here, the Justice Department). 

And if a defendant believes that it has the proverbial golden ticket (a nod to Willy Wonka) to get the judicial branch to stick a broomstick into the spokes of a Justice Department investigation where let’s say, the department has gotten and executed a search warrant, then the law is as clear as the right eyeglass prescription. The aggrieved party (here, Trump) must show proof of the following four: (1) the government’s callous disregard for his constitutional rights; (2) his interest in or need for the things seized; (3) he will be irreparably harmed if the stuff is not returned; and (4) he doesn’t have an adequate remedy at law. 

Team Trump could not muster the strength to jump over the first hurdle. Not only was the government not callous when it came to Trump’s constitutional rights, but the government was also deferential and almost subservient to him. How many times was the former president politely asked to simply deliver the documents?

Now that we know that Trump’s defense had no ground to stand on the first standard of proof, what about the other three? Well, the Trump Team could fare no better with the second or third one. It comes down to one simple fact: These documents are not Trump’s. They belong to the government. The only harm Trump suffers if these documents are in the hands of the Justice Department is the ease with which he can be prosecuted — it is really over at the question of whether he possessed them.  

In reality, the only one who suffers harm in the context of these documents is the public, and those who protect us in an undercover capacity because among the documents were highly classified information. 

That brings us to No. 4. And the former president doesn’t have a case there either because he does have an adequate remedy at law, although it is one his defense team should hope it never has to use. The bad news is Trump would have to be indicted; the good news is Trump could then exercise his right to challenge (controvert) the search warrant and make a motion to suppress the fruits of the search. In other words, Trump could move to keep the seized documents out of prosecution by trying to argue that they were obtained in violation of his Fourth Amendment right to be free from an unreasonable search and seizure. 

A criminal defense attorney’s job is to get the client the best possible result. Defense counsel looks at the facts of a case and the applicable law in the hope that one of them favors the client. A seasoned defense attorney will look at the intersection of a case and determine that “if the facts take me down that road, I’ll go down that road” or “if the law takes me down that road, I’ll go down that road.”  

When the district judge was considering whether to grant Trump a special master, she should have seen clearly that Team Trump was seeking to delay the proceedings.

But what happens if the defense attorney has neither? Then, it may be that the strategy is to simply slow down what may be inevitable. And that is where the district judge must step in to stop frivolous delay. The district judge is charged with a dual responsibility. One is to ensure that the delay is not the product of arguments by the defense that cannot be supported by existing law. The other is to decide whether the defense has presented a good faith argument that the law is wrong and should be changed, if not overturned. 

When the district judge was considering whether to grant Trump a special master, she should have seen clearly that Team Trump was seeking to delay the proceedings by simply choosing to ignore fundamental concepts of separation of powers and the law.  

A fifth grader knows that the judicial branch can’t make law. A 3L — or third-year — law student who’s taken criminal procedure knows that a search warrant is issued by a judge after the government provides proof that it is more likely than not that evidence of a crime will be found in a particular place. A third-year associate in a law firm knows the difference between a court of law (where an aggrieved party wins money damages, for example) and a court of equity (where the court tries to be fair by issuing, for example, an injunction to maintain the status quo until the case is over). And I knew pretty early on in my criminal law career that it is rare that a criminal court can or will exercise equitable powers in a criminal case. In Trump’s case, the district court decided to sit as a court of equity. That was wholly improper.   

Thankfully the appeals court got it right. Team Trump’s arguments were a sideshow. They were a not-so-thinly veiled effort to delay the Justice Department from sitting down with the documents seized under a court-blessed search warrant and determining whether it is time for Trump to account for his conduct. The former president cannot keep those entrusted with enforcing our laws on a wild goose chase forever. The 11th Circuit was correct in telling the Trump circus to pull up its Big Tent.

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