“You can’t have your cake and eat it too”
It wasn’t a good day for the Trump team:
A federal judge on Tuesday expressed skepticism about an attempt by former President Donald J. Trump’s lawyers to once again skirt the issue of whether Mr. Trump had declassified some of the highly sensitive records seized from his Florida estate by the F.B.I. last month.
The statements by the judge, Raymond J. Dearie, who is acting as a special master reviewing the seized materials, were an early indication that he may not be entirely sympathetic to the former president’s attempts to bog down his evaluation with time-consuming questions over the classification status of some of the documents.
Days after the extraordinary search of Mr. Trump’s estate, Mar-a-Lago, the former president made public statements claiming that he had in fact declassified some of the seized records, suggesting that the Justice Department had no case against him for illegally retaining sensitive government material. But neither he nor his lawyers have ever made those same assertions in court — or in court papers — where they could face penalties for lying.
Instead, they have danced a fine line between suggesting that, as president, Mr. Trump had the authority to declassify the documents, while remaining silent on the issue of what he actually did — or did not do. At the same time, Mr. Trump’s lawyers have pursued another line of argument, telling Judge Dearie that he should not simply take the Justice Department’s word that some of the seized records are classified, as prosecutors claim.
At his first hearing as special master, Judge Dearie seemed to cut through this confusing web, telling Mr. Trump’s lawyers in direct terms that he was likely to deem the documents classified — unless they offered evidence to the contrary.
That prompted one of the lawyers, James Trusty, to say that Mr. Trump’s legal team might in the future offer that sort of evidence — in witness statements, for example — but that to do so now would telegraph its legal strategy to the government.
While Judge Dearie was open to the notion that Mr. Trump’s lawyers might at some point mount a declassification defense, he seemed displeased that they were casting doubt on the government’s assertions about the classification status of the documents without backing up their claims with evidence.
“My view is, you can’t have your cake and eat it too,” Judge Dearie said.
They kept saying that they might need to use the de-classification issue in case of an indictment so they didn’t want to give away their strategy. This might make sense if their client hadn’t stolen super top secret documents which is making a lot of people very nervous. He is, after all, notoriously loose lipped and also corrupt and now desperate.
He wants his lawyers to see the classified documents so they can leak lies about them suggesting that they weren’t really important and had no impact on national security. This has to be their main goal. After all, this case isn’t really about classified documents. It’s about the Espionage Act and obstruction, neither of which turns on whether the docs are classified or not. They think they can finesse the latter because he already did it in the Mueller case. They figure they won’t be prosecuted for a disagreement on a “storage issue.” But those classified documents show him being reckless and irresponsible at the least — and committing espionage at its worst. We don’t know what Trump knows about them but the lawyers clearly don’t know what’s in them either. And I’m fairly confident they don’t trust Trump on this issue if he says there’s nothing to worry about.
Dearie said revealing the documents to the lawyers would not just turn on whether they were classified or not. Seeing them would turn on a “need to know” basis — even he might not need to know in order to resolve the issues the Trump lawyers have raised. It will be interesting to see what he meant by that. We should know fairly soon he doesn’t seem inclined to dawdle on this case. Stay tuned.