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Why the DOJ-Trump special master fight on Mar-a-Lago is a red herring

Merrick Garland may never indict Trump — but not because of a special master.
Donald Trump, Merrick Garland.
Donald Trump, Merrick Garland.Getty Images file

UPDATE (Sept. 15, 2022, 7:50 p.m. EST): On Thursday evening, Judge Aileen Cannon denied the DOJ’s motion for a partial stay of her injunction. She has also appointed senior U.S district judge for the Eastern District of New York Raymond Dearie as the court's special master.

Ever since an alarmed and exasperated FBI finally executed a search warrant at former President Donald Trump’s Mar-a-Lago estate on Aug. 8., Trump has hurled one monkey wrench after another into the government’s investigation of highly sensitive government documents being retained at Mar-a-Lago. There were angry statements on Truth Social, outrage about the agents taking his passports (the location of the passports, in the former president’s desk drawer alongside classified documents, is evidence of Trump’s knowledge of the classified document) and, most recently, a disputed request that the court appoint a special master to review the seized documents for attorney-client and executive privileges.

Trump has hurled one monkey wrench after another into the government’s investigation of highly sensitive government documents.

Trump’s tactics have gotten some traction. Federal Judge Aileen Cannon approved the appointment of a special master and forbade the government from reviewing any of the seized documents or using them in its investigation pending the special master’s review. That, according to the Department of Justice, is an untenable position. The DOJ asked the judge to stay her injunction with respect to seized classified documents, arguing, sensibly, that pre-existing classified government documents could not in any way implicate the attorney-client privilege or the executive privilege. The DOJ stands ready to appeal her ruling. Trump and his lawyers have asked Cannon to ignore the DOJ's request, and keep the injunction in place.

So there’s a tussle underway in West Palm Beach about who gets to control the government’s investigation. The DOJ? Trump? The court?

At the end of the day, it doesn’t matter. Donald Trump and the court in Florida can’t change the fact that Trump wrongly had classified documents at Mar-a-Lago. Whether the DOJ ultimately charges Trump with a crime will depend on a lot of things, but not on the special master ruling.

Even Trump’s former Attorney General William Barr recently called Trump’s special master motion “a red herring.” And he was right about that. A red herring is an oily, smelly fish from the northern seas of Europe. When hounds used by fox hunters in England to sniff out their prey became too good at their jobs, the hunters had to find a way to prolong the thrill of the chase. Eventually, they started dragging around smelly red herrings, temporarily diverting the hounds from the scent of the foxes.

With the mantle of his former position, Trump has a lot of red herrings that he can use to distract and delay the government investigation. But when it comes to obstruction of justice and possession of sensitive government documents, eventually the hounds will find the foxes.

Cannon’s appointment of a special master, while frustratingly ambiguous and sorely in need of clarification, isn’t going to change the ultimate outcome of this investigation. The Department of Justice was in all likelihood never going to file criminal charges against anyone so close to the midterm elections. Those elections are now less than 60 days away, and bringing charges at a time that might impact elections would violate a longstanding DOJ policy that exists to prevent the appearance of partisanship. 

Trump’s motion for a special master, and a court’s acquiescence to it, is all in a day’s work for the DOJ.

And, even putting aside the court-ordered special master review, it’s likely that the DOJ will take several more months to conclude its investigation. In its most recent filing, the DOJ argued that it still needs to determine precisely how the documents were removed from the White House, how they were stored at (and perhaps moved around) Mar-A-Lago, and the steps Trump’s team took to comply with the May 11, 2022 federal grand jury subpoena. That means that DOJ still has some work to do to put together all the pieces of the puzzle.

The litigation over the search warrant has been a time-consuming distraction for the DOJ, but it’s not going to knock the investigation off course. FBI agents are investigators, and DOJ attorneys are litigators. Investigations and litigations are always full of surprises — new witnesses bring forth different facts, equipment breaks, judges make unexpected rulings, jurors call in sick. Dealing with the unexpected is part and parcel of the job. Trump’s motion for a special master, and a court’s acquiescence to it, is all in a day’s work for the DOJ. 

But the debate over the special master appointment is itself a red herring in terms of what many Democrats might argue is the big picture — charging Trump with a crime, and preventing him from running for president in 2024.  

There may be good reasons not to indict Trump, even if the evidence warrants it. For example, charging Trump might deepen the country’s partisan divide, or it might risk having to disclose highly confidential national secrets in court.

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Most importantly, even a criminal conviction is unlikely to prevent Trump from serving as president again. Contrary to popular belief, simply being a convicted felon does not bar someone from becoming the president of the United States. Although there are theories under which some argue that Trump could be barred from the presidency, those theories give rise to an impressive array of legal challenges.

At the end of the day, whether Trump will win another term as president won’t depend on whether Cannon appointed a special master to review documents. It will come down to something far more basic to our democracy: whether Americans think Trump is fit to be the leader of the free world.