In a recent Lawfare article, they ruminate on a possible strategy behind the “special master” request.
They suggest that Trump’s attorneys are attempting to use the court’s likely appointment of a special master as a backdoor means of obtaining unrelated, sensitive investigative materials that could potentially be used for intimidation or obstruction. Is it all about trying to get their hands on an unredacted affidavit?
The Special Master Revisited
Trump’s filings reveal the central strategic importance of obtaining an unredacted affidavit. His team also sees the appointment of a special master, nominally concerned with matters of privilege, as a means for obtaining the unredacted affidavit. The brief in Trump’s initial filing, after discussing the hypothetical possibilities for omissions or lies in the affidavit, pivots to a discussion of the special master, arguing that the “appointment of a Special Master with a fair-minded approach to providing defense counsel with information needed to support any Rule 41(g) filing is an appropriate use of the Court’s authority.” This appears to suggest that the special master should provide Trump’s attorneys with access to the affidavit in order to support their Rule 41(g) motion claiming an unconstitutional search. Yet providing Trump’s attorneys with investigative documents is far beyond the traditional function of a special master, who typically reviews seized documents for privilege and keeps privileged documents separate from those reviewed by authorities.
Trump’s reply brief is even clearer in its attempt to use the special master as a means to obtain the unredacted affidavit. Buried deep in a discussion of the special master’s review procedures, the brief requests that the government provide to the special master and to Trump “a copy of the Search Warrant, and an unredacted copy of the underlying application materials,” which include the affidavit revealing the witnesses and sources of information that supported the warrant. Again, such materials have essentially nothing to do with the special master’s duties of sorting privileged and unprivileged materials. Rather, Trump’s attorneys are attempting to use the court’s likely appointment of a special master as a means of obtaining unrelated, sensitive investigative materials that could potentially be used for intimidation or obstruction.
I am not a lawyer, but that rings true for me. Your thoughts?
The word speculation in the post title refers to my thoughts with respect to how this fits into the DOJ filing yesterday.
If the goal of the special master request (besides delay, delay, delay) is for the attorneys of the wannabe authoritarian lunatic to get their hands on the unredacted affidavit, does that make them more likely or less likely to double down on the “need” for a special master, even in the face of yesterday’s filing that schools the judge on how things work and accuses her of jeopardizing national security?
Open thread.