U.S. Magistrate Judge Bruce Reinhart on Tuesday released a slightly less redacted version of the affidavit used to obtain a search warrant for Mar-a-Lago. That affidavit, plus a new Justice Department filing and a spate of subpoenas, adds to defeated former president Donald Trump’s legal woes.
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The affidavit states that one of Trump’s lawyers said “he was not advised” that there were documents in “any private office space or other location” at Mar-a-Lago. This is the first sign that at least one attorney is not going to take the fall for misleading the Justice Department about the location of the documents. And the person advising the lawyer logically must be Trump or someone acting at his behest. In short, the lawyer seems to be pointing his finger at his client with regard to any alleged obstruction.
I previously explained this might be one of the rare times a lawyer could be put in front of a grand jury to testify against his client. If this lawyer has revealed some conversation with his client, the attorney-client privilege might already be gone. Moreover, the assertion of attorney-client privilege can in certain instances be countered with the government’s assertion of the crime-fraud exception (i.e., when the relevant communication actually advances the obstruction at hand). Whether that will happen in this case remains to be seen. Nevertheless, Trump might be upset to learn his attorney isn’t prepared to take the fall.
The other troubling development for Trump was the Justice Department’s blistering brief filed on Tuesday. Right upfront, the government makes clear that Trump never showed he had a property interest in the documents (because they don’t belong to him) and therefore cannot get relief from the judge. The Presidential Records Act makes clear these documents belong to the government. This simple and damning argument puts Judge Aileen Cannon, who granted Trump’s special master request, in the hot seat.
Furthermore, the Justice Department notes that the Trump team has provided no response to the department’s (definitive) argument that an ex-president cannot raise executive privilege against the current executive branch, especially when another part of the government is already conducting a security review. The department also underscores that Trump’s attorneys still do not claim the documents were ever declassified. (Even if they had somehow transformed the documents into “personal documents,” that means his executive privilege claim will definitionally fail, since “he cannot assert that the very same records are protected by executive privilege—i.e., that they are ‘Presidential communications.’ ”)
The tightly argued brief should remind us how little Trump’s attorneys have offered in the way of a defense and how far afield Cannon strayed in throwing a special master into the mix.
This does not mean that Cannon will back down. Her initial ruling suggested an overriding desire to lend Trump a hand, making privilege arguments for him and disregarding the basics of executive privilege. She might do it again and risk the embarrassment that comes with a highly likely reversal.
However, Trump has more to worry about than “just” the troubling revelation in the affidavit and the devastating Justice Department brief. As the New York Times first reported, the Justice Department has sent out roughly 40 new subpoenas, including some pertaining to “Trump’s postelection fund-raising and the so-called fake electors scheme.” Any concern that the Justice Department would pull its punches should have been erased long ago, but the breadth of the latest subpoenas shows the department is digging far beyond the violence of Jan. 6, 2021. And that’s before we get to the Espionage Act investigation at Mar-a-Lago.
Trump’s legal problems are multiplying. (Remember that the Fulton County, Ga., grand jury is at work, too.) His excuses are evaporating, and his own lawyer might be enlisted to testify. Even a stable personality facing this onslaught might come unglued.
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The affidavit states that one of Trump’s lawyers said “he was not advised” that there were documents in “any private office space or other location” at Mar-a-Lago. This is the first sign that at least one attorney is not going to take the fall for misleading the Justice Department about the location of the documents. And the person advising the lawyer logically must be Trump or someone acting at his behest. In short, the lawyer seems to be pointing his finger at his client with regard to any alleged obstruction.
I previously explained this might be one of the rare times a lawyer could be put in front of a grand jury to testify against his client. If this lawyer has revealed some conversation with his client, the attorney-client privilege might already be gone. Moreover, the assertion of attorney-client privilege can in certain instances be countered with the government’s assertion of the crime-fraud exception (i.e., when the relevant communication actually advances the obstruction at hand). Whether that will happen in this case remains to be seen. Nevertheless, Trump might be upset to learn his attorney isn’t prepared to take the fall.
The other troubling development for Trump was the Justice Department’s blistering brief filed on Tuesday. Right upfront, the government makes clear that Trump never showed he had a property interest in the documents (because they don’t belong to him) and therefore cannot get relief from the judge. The Presidential Records Act makes clear these documents belong to the government. This simple and damning argument puts Judge Aileen Cannon, who granted Trump’s special master request, in the hot seat.
Furthermore, the Justice Department notes that the Trump team has provided no response to the department’s (definitive) argument that an ex-president cannot raise executive privilege against the current executive branch, especially when another part of the government is already conducting a security review. The department also underscores that Trump’s attorneys still do not claim the documents were ever declassified. (Even if they had somehow transformed the documents into “personal documents,” that means his executive privilege claim will definitionally fail, since “he cannot assert that the very same records are protected by executive privilege—i.e., that they are ‘Presidential communications.’ ”)
The tightly argued brief should remind us how little Trump’s attorneys have offered in the way of a defense and how far afield Cannon strayed in throwing a special master into the mix.
This does not mean that Cannon will back down. Her initial ruling suggested an overriding desire to lend Trump a hand, making privilege arguments for him and disregarding the basics of executive privilege. She might do it again and risk the embarrassment that comes with a highly likely reversal.
However, Trump has more to worry about than “just” the troubling revelation in the affidavit and the devastating Justice Department brief. As the New York Times first reported, the Justice Department has sent out roughly 40 new subpoenas, including some pertaining to “Trump’s postelection fund-raising and the so-called fake electors scheme.” Any concern that the Justice Department would pull its punches should have been erased long ago, but the breadth of the latest subpoenas shows the department is digging far beyond the violence of Jan. 6, 2021. And that’s before we get to the Espionage Act investigation at Mar-a-Lago.
Trump’s legal problems are multiplying. (Remember that the Fulton County, Ga., grand jury is at work, too.) His excuses are evaporating, and his own lawyer might be enlisted to testify. Even a stable personality facing this onslaught might come unglued.
