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Trump lawyers’ audacious quest to avoid echoing Trump meets reality

Partially redacted documents with classified markings that FBI agents reported finding at former president Donald Trump's office in Mar-a-Lago. (Justice Department)

This post has been updated with news from Tuesday’s hearing.

For weeks, former president Donald Trump has benefited from the orders of a judge who has proved conspicuously incurious about his public claims that he declassified the documents labeled confidential, secret or top-secret seized from his residence at Mar-a-Lago last month. Trump’s legal team refused to vouch for that claim, but it wasn’t pressed on the issue.

That appears to be coming to an end. And now Trump’s lawyers have lots of thinking to do when it comes to whether they’ll do what they’ve painstakingly avoided: saying what their client says.

The special master in the case, Raymond J. Dearie, served notice in a Tuesday hearing that he will likely require Trump’s legal team to actually address the declassification claims.

At one point, he said that if Trump’s lawyers didn’t directly dispute the government’s argument that the documents are classified, “As far as I’m concerned, that’s the end of it.” When Trump lawyer Jim Trusty argued the legal team shouldn’t have to weigh in on that yet, Dearie responded, “You can’t have your cake and eat it too.”

It was the culmination of a series of head-scratching refusals from the Trump team to address an issue that Trump has repeatedly addressed publicly. And it came a day after they laid out their case for their continued refusal in a court filing.

In the filing to Dearie on Monday, Trump’s lawyers made two main arguments on that front. One was that taking a position on the classification status of approximately 100 documents marked classified that were seized Aug. 8 could jeopardize Trump’s potential criminal defense. The other was that Judge Aileen M. Cannon didn’t require Dearie to determine whether the documents are classified.

The latter, in particular, is a stretch.

Cannon’s original order didn’t dwell on whether the documents might have been declassified, but she did direct the special master “to review the seized property, manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property.”

The Justice Department then asked that it be allowed to continue reviewing only the documents marked classified and that such documents be excluded from the special master’s review, which drew the Trump legal team into actually addressing the matter. In its filing, though, Trump’s attorneys skirted the issue, calling the documents’ classification status into question but not actually disputing that they remained classified — and accordingly, not echoing Trump’s public claims.

But that was good enough for Cannon, who denied the Justice Department’s request while accepting the Trump team’s argument that this fact is in dispute.

But in rejecting the request and naming Dearie as special master, Cannon again charged him with parsing the status of documents. She listed among his duties: “Identifying personal items/documents and Presidential Records in the Seized Materials and making recommendations to the Court as to any categorization disputes between the parties.”

Again, Cannon didn’t dwell much upon the classification issue. And that listed duty specifically addresses “personal items” and “Presidential Records” rather than whether documents are classified.

But it also says he must make “recommendations to the Court as to any categorization disputes between the parties” (emphasis added). Cannon elsewhere explicitly described the classification status as a disputed fact, meaning Dearie would sure seem to be charged with resolving it. And that would seem to involve establishing the two sides’ views on their status.

‘The files were declassified’ is a political argument, not a legal one

The Trump team’s other argument — that it can’t disclose its position because it could jeopardize Trump’s criminal defense — would also seem to be undercut by the fact that the former president keeps claiming publicly that he declassified all the documents. That includes as recently as Friday. How that might play in a criminal case remains to be seen, but it’s not like he’s played this close to the vest.

And all of this should be viewed in the appropriate context, which is that Trump’s legal team is trying to prolong this matter. That could be because his attorneys fear Trump’s declassification claim is false — opening themselves up to legal repercussions — or because they don’t think they can prove it. It could also be because they want Cannon, a Trump-nominated judge who has sided with them in controversial ways, to weigh in as much as possible as Dearie’s review progresses.

Another reason, of course, is that they see value in prolonging these matters as much as possible. Getting a special master in the first place was a way to draw things out and delay the Justice Department’s criminal investigation.

That’s because one of the lessons of Trump’s political career is that the lengthier the proceedings, the better it augurs for him. The Russia investigation played out over years, and by the time a bipartisan Senate report bolstered claims that Trump’s campaign might have coordinated with Russia in a way the Mueller report hadn’t, those findings were received as old news. People had tuned out. In the case of the documents at Mar-a-Lago, more Americans believe Trump broke the law than have in just about all of his previous controversies, including the Russia probe.

Dearie — whom the Trump legal team recommended for the special-master position and the Justice Department deemed acceptable — has a reputation as being particularly slow and deliberate.

But he’s now proposed a rather aggressive timetable, aiming for the completion of the inspection and labeling process by Oct. 7, according to the Trump filing. Trump’s team is also pushing for a more delayed timetable in general, which includes waiting to assert whether the documents were declassified until a hearing in late November — at the tail end of the timetable Cannon set for Dearie’s review, which concludes Nov. 30.

That doesn’t appear to be any coincidence. If Monday night’s filing is any indication, the Trump legal team will try to gum up the works, even with the special master they themselves recommended. But if Tuesday’s hearing is any indication, its own pick for special master might not entertain it.