Op-ed by Elad Hakim | Photo: Alamy
On Tuesday night, while many Americans were sleeping, the government filed a response to President Trump’s request for a special master. As expected, the response contained a variety of poor excuses explaining why a special master should not be appointed. There is no justifiable reason why the DOJ would oppose such a request.
By way of review, the FBI raided Trump’s home based on a general warrant signed by an administrative judge who previously recused himself from another case involving Trump. The alleged probable cause was based on an affidavit that was highly redacted when released to the public. During the raid, the FBI seized documents protected by the attorney-client privilege and/or executive privilege, as well as other documents, including Trump’s passports and a document pertaining to an executive grant of clemency involving Roger Stone.
As a result, Trump’s lawyers filed a Motion For Judicial Oversight And Additional Relief (“Motion”). There, lawyers asked the judge to, among other things, appoint a special master to review the documents to “preserve the sanctity of executive communications and other privileged materials.”
In response, the government objected on several grounds. More particularly, the government alleged that Trump lacked standing because the alleged records at issue did not belong to him but the United States. The government wants the judge to believe that a homeowner has no standing to seek the return of documents and/or have an independent judge review the items seized during a raid of his personal residence. The government further argued that the court lacks jurisdiction to entertain Trump’s Fourth Amendment claims. They also purported that appointing a special master would be duplicitous, jeopardizing important governmental and national security interests, and impede an ongoing investigation.
On Wednesday, Trump’s lawyers filed a reply to the government’s most recent filing. In it, Trump’s lawyers addressed the government’s various factual inaccuracies and legal arguments and explained why the judge should appoint a special master.
While the judge will ultimately decide the various legal issues regarding jurisdiction and standing, the government’s objection to the appointment of a special master is questionable. In essence, the government is asking the court to “take its word” that the internal review process conducted by people working within the very agency investigating Trump was thoroughly and fairly conducted. Given the animus against Trump and the DOJ and FBI’s questionable track record with all things Trump-related, there is good reason to seek a review by an independent and neutral judge.
As a matter of fact, even the story involving the raid has changed numerous times due to various lies or leaks. As Mike Davis, President of the Article III Project, recently pointed out, reports that Merrick Garland did not approve the raid were false. Reports that Trump allegedly had nuclear documents were also false. Additionally, despite reports that President Biden was not involved in the decision to raid Trump’s home, this, too, was false.
A review of this nature would also not jeopardize national security. After all, any such review would be conducted by a neutral judge, who would evaluate the documents and determine the exact nature of the documents, whether various privileges exist, and whether any documents should be returned to the former president. Interestingly, the government also seeks to limit the types of documents that are available for review should the judge decide to appoint a special master. That could be problematic if the government seized documents outside the warrant’s scope yet not necessarily covered by one or more privileges.
Assuming Trump’s lawyers overcome some of the other legal challenges involving jurisdiction and standing, there is no legitimate reason for the government to object to the appointment of a special master. One possible underlying reason why the government would pose such objections is to prevent a special master from learning about possible documents that were improperly seized or outside the scope of the warrant, such as documents pertaining to Crossfire Hurricane. Clearly, if the basis for the government’s raid and subsequent search was the alleged existence of top secret or classified information, such documents would be well outside the scope of such a search.
Thus far, the government has agreed to publicize only such information that it feels could hurt Trump in the eyes of public opinion. It objected to the release of the unredacted affidavit, filed a vague property receipt and a subsequent receipt under seal, and opposed Trump’s request for a special master. In the interim, selective information has been improperly leaked to friendly media sources, and a photo that looked like a Vogue cover shoot of alleged classified top secret documents was conveniently released.
A hearing on the matter took place on Thursday afternoon. The judge will issue a written order once she has ruled on the matter.
Mr. Hakim is an attorney and columnist. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, American Thinker, and other online publications. He is also a regular guest on OANN’s Tipping Point, and has appeared on Newsmax, The Jenna Ellis Show, Steadfast and Loyal Podcast with Allen West, The Dave Weinbaum Show, and Real America’s Voice. The views expressed herein are the author’s own and do not constitute legal advice.