Dearie, a seasoned and widely respected jurist, showed skepticism of Trump’s arguments about how the review should proceed, while stressing a desire to move quickly. His appointment order — issued by US District Judge Aileen Cannon in Florida — said he must finish his review by the end of November.
Cannon ordered the third-party review after Trump filed a lawsuit claiming that the review was necessary to filter out materials covered by attorney client privilege, as well personal items that do not belong in the hands of the investigators.
While Dearie gets going on sifting through the approximately 11,000 documents seized in Mar-a-Lago, the Justice Department is asking an appeals court to revive its criminal investigation into the materials marked as classified, as Cannon blocked investigators from using the seized materials during the special master review.
Dearie puts Trump on notice that he will need to put up or shut up on declassification
Dearie — who served for several years on the Foreign Intelligence Surveillance Court — indicated that he would not have much patience for Trump trying to muddy the waters around the classification status of documents marked as classified, particularly if Trump wasn’t willing to lay out why the records should not be treated as classified.
“If the government gives me prima facia evidence that these are classified documents, and you, for whatever reason, decide not to advance any claim of declassification, I’m left with a prima facia case of classified documents, and as far as I’m concerned, that’s the end of it,” Dearie told Trump’s lawyers at the hearing.
The Justice Department is asking an appeals court to exclude those 100 or so documents from Dearie’s review and has said that those documents should be presumed classified until the government can assess them.
Trump’s lawyers, meanwhile, have argued that the court should not make any assumptions about the classification status of the documents, while vaguely implying the documents may have been declassified. But Trump’s attorneys have stopped well short of asserting in court that Trump himself declassified them, and in a Monday letter to the special master, Trump’s lawyers indicated that they did not want to make such disclosures about declassification at this stage of the review. They telegraphed that could be a part of Trump’s defense if he is indicted.
Trump attorney Jim Trusty on Tuesday said that, until they see the documents, Trump’s legal team was not in a position to fully disclose their defense or specifically address the declassification issue. Dearie acknowledged that there was a legal strategy at play, but he also noted there was the practical issue of what recommendations he would need to make to Cannon.
“My view of it is you can’t have your cake and eat it,” Dearie told the Trump team.
Dearie emphasizes need for speed, putting any Trump delay tactics in jeopardy
Dearie made clear that the review was going to need to move quickly to hit the pre-December deadline mandated by Cannon.
“I’m not going to hurry, but we have a lot to do and a relatively short period of time,” he said.
The comments came after the Trump team had, in their letter to the special master Monday, sought to push back some of the interim deadlines proposed in a draft plan circulated among the parties. Specifically, Trump’s attorneys objected to a proposed October 7 deadline for them to inspect and categorize the materials Dearie has been tapped to review.
The draft plan Dearie had offered is not yet public, so it’s not clear what other intermediary deadlines the judge has in mind.
At the hearing, Trusty denied that they were seeking to rework the schedule as a delay tactic.
“It’s not to be in favor of delay, we want resolution on these things, too,” Trusty said, though Dearie did not seem to buy their arguments on the timeline.
There was tension over whether Trump or the judge should even see the sensitive materials
Dearie stressed that he took seriously the need to protect government secrets, and he pointed to the “very strong obligation” that the government has to ensure that highly sensitive information does not get out.
He remarked that if he can make his recommendation to Cannon about certain classified documents without exposing himself or Trump’s lawyers to the material, he would do so.
“It’s a matter of need to know,” Dearie said, referring to the standard in court cases that is used to determine when even those with a security clearance can view classified materials.
The Justice Department picked up on Dearie’s point, with attorney Julie Edelstein noting that some of the department’s own investigators don’t yet have the special clearances they need to view the particularly sensitive documents.
Trump’s team pushed back on the idea that they could be cut out from looking at some of the sensitive materials themselves. Trusty said that it is “kind of astounding to hear the government say that the (former) President’s lawyers don’t have a need to know.”
Dearie brings a serious and focused approach to the job
From the moment he stepped into the courtroom, there were signals that Dearie was viewing the job seriously and had thought through the task at hand.
He took the bench not wearing a judicial robe, but a dark navy pinstripe suit; in the role, he is not serving as a judge, but as an adviser to the district court in Florida.
As the hearing got going, Dearie cut directly to the chase, not belaboring any points.
“I am going to do the best I can with the time available to us,” he told the parties.
He also indicated he saw his role as limited, as he stressed that he would follow closely the instructions from the judge in Florida who appointed him. He told the parties he was tasked with making a “discrete” number of legal judgments.
DOJ hints it may go to SCOTUS if it needs to
The planning around the special master review is playing out as the Justice Department has also asked the 11th Circuit to intervene in the dispute, and on Tuesday, the government’s attorneys signaled they’d turn to the Supreme Court if need be.
The Justice Department is asking for the appeals court to lift the hold Cannon placed blocking the use of the materials marked as classified in the Justice Department’s criminal probe. The DOJ is also asking that those documents be excluded from the special master review.
If the department lost at the 11th Circuit, Edelstein suggested, it would “most likely consider other appellate options at that point,” raising the possibility the Justice Department could ask the Supreme Court to intervene.
Much still unsettled about the next steps
The hearing wrapped up with much still unsettled around the timing of the review’s next steps.
Dearie gave Trump’s lawyers until Friday to say which vendor, among the options put forward by the Justice Department, should be used for scanning and hosting copies of the records for the parties to access through the review, but the rest of the timeline has yet to be set.
After the documents are scanned and made available to the parties, the next step would be for the documents to be logged according to the four categories set out by Cannon, with any disagreements between the parties about how records should be logged then brought to Dearie for his take. From there, Dearie will make recommendations to Cannon for how those disagreements should be resolved.
The four categories Cannon has laid out are personal documents that are claimed as privileged, personal documents that are not privileged, presidential records that are claimed as privileged, and presidential records that are claimed as not privileged.
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