Actually, the Trump reply begins with an argument that the right of privacy means that a suspect under investigation can’t have their home searched without permission, even if law enforcement has a search warrant, and even if they inform the homeowner in advance. And that anything the government finds that is evidence of a crime can’t be taken, no matter what. So there.
It is the reasonable expectation of privacy in one’s home that triggers the obvious standing of the homeowner to contest a search on those premises. To suggest that the seizure of allegedly “illegally possessed” items negates standing literally distorts the entire concept of the Wong Sun “fruit of the poisonous tree” doctrine into the bizarre notion that, if the recovered property is potentially illegal to possess, then the homeowner can never challenge the basis of the intrusion.
This is a bold new expansion of privacy rights that many would applaud (Including other criminals who have had illegal materials removed from their residences after the application of a valid search warrant obtained from a federal judge). The Wong Sun case mentioned in the Trump reply was specifically about a search conducted without a warrant, and its application here is worse than pointless. Maybe Trump’s team thinks Cannon doesn’t know that. Maybe Trump’s team doesn’t know that.
Then comes the argument about Trump having the standing to request a special master. It’s clear that Trump’s attorneys have just looked up the meaning of “standing,” as they include a law school definition. They then go on to cite some examples where special masters were appointed, every single one of which involves complications resulting from the search of an attorney’s office. In fact, the first citation involves the search of Michael Cohen’s office. That could be where Trump got the idea that a special master would save him.
But after all this, and despite going on at some length about the times the court has appointed special masters for searches of law offices, the reply never gets around to mentioning why Trump should be awarded a special master. Just restating that the whole thing violates his Fourth Amendment rights, even though the search was conducted under the terms of a search warrant, is as close as the next two sections of the motion come.
And that’s before the Trump team kind of officially throws up their hands …
Movant does not at this time address every misleading or incomplete statement of purported “fact” made by the Government in its Response at pages 3 to 14.
That “addressing every misleading or incomplete statement” is exactly what this reply is for. Here is Trump’s opportunity to show where the government is wrong. To provide evidence that the government is lying or exaggerating or mischaracterizing what happened. But they can’t be bothered. Maybe that’s because all three of Trump’s attorneys who signed on to this thing are actually litigating other cases at the same time.
However, there is one instance they do address. In a way.
However, Movant will simply highlight that one specific event – the June 3, 2022, meeting – has been significantly mischaracterized in the Government’s Response.
That June 3, 2022 meeting took place after the FBI had filed a subpoena demanding Trump return the documents. At that meeting, the agents and DOJ attorney present were handed an envelope containing 38 classified documents, 17 of which were stamped “top secret.” They were also given a signed statement from Trump attorney Christina Bobb (whose name is notably missing from Wednesday’s reply) stating that after a “diligent search” there were no more classified documents at Mar-a-Lago.
How the government “significantly mischaracterized the meeting” isn’t mentioned in this section, but eventually Trump’s team does wind around again to writing about that meeting.
A search warrant has been executed at the home of a President. It was conducted in the midst of the standard give-and-take between former Presidents and NARA regarding Presidential library contents, and with the Movant literally allowing DOJ lawyers and FBI investigators to come to his home and provide security advice.
This has to be the single best section of the entire filing. It’s just so … so. Not only does it leave out the word “former” when describing Trump’s position, it describes a process that has at this point involved over a year of the National Archives begging for the return of classified material, threatening to go to the DOJ, actually going to the DOJ after Trump tried to hide behind executive privilege, the DOJ issuing a subpoena, and the FBI finally moving after seeing evidence that Trump is lying about both the nature and number of classified documents he is holding as “the standard give-and-take between former Presidents and NARA.” What’s missing from this claim is any reason to see this as “standard.”
But that’s not the best part.
The next section says that Trump “allowed” the FBI to come to … “provide security advice.” By which Trump’s attorneys presumably mean that the FBI agents present advised Bobb to secure the storage room holding records from the White House—records she didn’t allow them to see. It completely ignores that the real purpose of the visit was to retrieve both classified documents and that signed statement, both of which did happen.
This is such a twisted view of events that following it is a serious threat to reason. But Trump’s attorneys have to be credited with this much: Dissertations will be written on what is wrong with these two sentences.
But don’t worry. Just because Trump’s team left out the part where that meeting included handing over a hefty stack of highly classified material and a signed statement that was an obvious lie, that doesn’t mean they don’t get around to a full confession.
Despite the clear desperation of the Government in avoiding the broad parameters of the PRA in allowing President Trump to possess documents, Movant declines the invitation to take on all potential future litigation in the narrow context of the Court’s ordered response regarding the appointment of a Special Master.
So Trump admits that he did have documents that fall under the restrictions of the Presidential Records Act. That’s part one.
As an initial matter, Movant is amenable to certain conditions proposed by the
Government. … Movant also agrees that it would be appropriate for the special master to possess a Top Secret/SCI security clearance.
And Trump’s team agrees that any special master would need beyond top-secret clearance … even though Trump is also claiming in public that he declassified all these documents. The reply also notes that “… the Government indicated that there were ‘three classified documents … located in the desks in the ’45 Office’” without any objection other than complaining about the removal of some of Trump’s personal documents (like the multiple passports he was keeping with his classified documents).
What is there to learn from this reply, other than there remains absolutely no precedent for appointing a special master to deal with issues of executive privilege, and that Trump has admitted to having highly classified materials in his possession?
First, this document follows the example of all other Trump legal filings in that it never mentions the idea that any of the documents are declassified. This remains something that Trump says in public, but which absolutely clashes with the filings his attorneys are making in court.
Second, despite devoting two full sections of the reply to the idea of appointing a special master, the reply doesn’t actually provide a single example or justification for why this master should be appointed. It also explicitly fails to mention why the process outlined by the Justice Department is inadequate or how a special master would work now that the FBI filter team has already gone through the documents.
Third, the document completely fails to address the false claim that Trump’s legal team handed to the DOJ on June 3 stating that “after a diligent search,” there were no more classified documents to hand over.
Fourth, not only is Bobb’s name missing off the document, so is that of attorney Christopher Kise, the former solicitor general of Florida and a former member of Florida Gov. Ron DeSantis’ staff, who Trump hired earlier this month specifically to represent him in this case. However, it does feature TV attorney James Trusty and Evan Corcoran, neither of whom is licensed to practice in Florida, and both of whom seem to be devoting more time to other cases than to Trump.
Fifth, and maybe most astounding, the reply doesn’t even try to rebut the government’s claims that documents were removed or hidden for the purposes of obstruction. The word obstruction doesn’t even pop up in the reply.
The reply from Trump’s team is a ridiculous document. Not only is its understanding of Fourth Amendment rights wildly outside any concept of criminal law, it explicitly fails to address the claims of the DOJ motion, hiding behind chest-beating and vague statements about “mischaracterization” that are never filled out by facts.
But then, every document that Trump’s team has filed with Cannon has been ridiculous. Cannon even had to come back to the team twice in the past, once after they filed incorrectly, the second time after they filed a complaint that was critically missing every element of a complaint, and walk them through how to do it correctly. But Cannon did walk them through, and then she did state that she was inclined to grant Trump’s request in spite of everything wrong with his argument.
There’s no guarantee that just because this reply is empty, silly, and logically inconsistent, it won’t be perfectly successful.