September 20, 2022 10:11 pm
By John Annese and Tim Balk, New Daily News
NEW YORK — The special master reviewing Donald Trump’s Mar-a-Lago papers signaled Tuesday that he wants to carry out a limited review, and pressed the former president’s lawyers for refusing to take a position on whether Trump declassified any of the documents.
“My view is you can’t have your cake and eat it,” Judge Raymond Dearie told Trump’s lawyers at a hearing in Brooklyn Federal Court.
Trump has said he declassified sensitive documents before taking them to his Palm Beach, Florida, estate following his presidency. But Trump’s lawyer Jim Trusty maintains he should not be required to show which documents were declassified, as that would tip the former president’s hand on his defense strategy should he face criminal charges.
Trump has not provided any evidence that he declassified the papers.
Dearie, a respected semiretired judge, has a Nov. 30 deadline to complete his examination of more than 10,000 documents — including about 100 marked classified.
After he was tapped as special master by Judge Aileen Cannon — a Trump-appointed judge in the Federal District Court for the Southern District of Florida — Dearie appeared to carve out a relatively limited purview for himself, expressing his desire not to pry into sensitive documents if he can avoid it.
“Let’s not belittle the fact that we are dealing with potentially legitimately classified information,” Dearie said. “The government has a very strong obligation, to all of us, to see to it that this information doesn’t get in the wrong hands.”
He added, “If I can make my recommendation to Judge Cannon, right or wrong, without exposing myself or you to that material I will.”
Julie Edelstein, a Justice Department lawyer, said “some of the documents are so sensitive that even members of the team investigating possible offenses here have not yet been provided clearance” to see them.
In a back-and-forth with Trusty, the special master contended that if “for whatever reason (you) decide to advance any claim of declassification, which I understand is your prerogative, I’m left with the prima facie case of classified documents, and that’s the end of it,” using a legal term referring to sufficiently satisfying first impressions.
Trusty countered that Trump as the former president had “unfettered access along with unfettered classification authority.”
Dearie’s extensive experience includes a seven-year spell on the shadowy U.S. Foreign Intelligence Surveillance Court.
At one point, Dearie said he was “taken aback” by comments from Trusty that the judge said indicated he was “going beyond” his instructions from Cannon. “I think I’m doing what I’m told,” Dearie said.
Cannon, who was appointed by Trump in the final months of his administration, has barred the Justice Department from using the documents for criminal investigative purposes pending the special master review.
The government is appealing at the Court of Appeals for the 11th Circuit in Atlanta, where six of the 11 judges on the court are Trump appointees.
Also Tuesday, Trump’s legal team filed court papers opposing the appeal, describing the case as a “document storage dispute that has spiraled out of control.”
(Daily News staff writer Molly Crane-Newman contributed to this story.)
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