Trump’s legal team should have known better than to ask for a special master

For the untrained and unwary, defending someone accused of a crime may mean employing a win-at-any-cost strategy. But when Donald Trump’s defense team asked a special foreman to review records lawfully seized under a search warrant from Mar-a-Lago, we saw the startling hubris of defense attorneys who appeared to have turned a blind eye to the law despite this did not meet their goals.

Wanting a special master was straight out of Trump’s delay, obstruction and use of time to pull off the victim circus act. The U.S. 11th Circuit’s ruling on Thursday that a district judge wrongly ordered such a review of the documents and prevented the Justice Department from using them in its criminal investigations against Trump was the right move.

We saw the startling hubris of defense attorneys who seemed to have turned a blind eye to the law when it didn’t suit their goals

Trump’s defense team needed to know that his request was unfounded due to the separation of powers. In fact, an elementary school social studies class (I’m sure I’m done with myself now) might have known. It is there that many first learn that the legislature makes the law, the executive enforces the law, and the judiciary interprets the law.

Any criminal defense attorney with a pulse knows, or should know, that in almost every case, the judiciary has no right or authority to interfere with a criminal investigation being conducted by the executive branch (here, the Department of Justice).

And when a defendant believes they have the proverbial golden ticket (a reference to Willy Wonka) to get the judiciary to stick a broomstick in the spokes of a Department of Justice investigation where, say, the Department obtains a search warrant and enforced, then the law is as clear as the correct glasses prescription. The aggrieved party (here Trump) must present the following four pieces of evidence: (1) the government’s callous disregard for its constitutional rights; (2) his interest in or need for the confiscated items; (3) he will be irreparably damaged if the goods are not returned; and (4) he does not have an adequate remedy.

Team Trump didn’t have the strength to jump the first hurdle. Not only was the government not callous when it came to Trump’s constitutional rights, but the government was deferential and almost obsequious to him. How many times has the former President been politely asked to simply hand over the documents?

Now that we know Trump’s defense had no basis to insist on the first standard of evidence, what about the other three? Well, the Trump team couldn’t have done better with the second or third. It boils down to a simple fact: these documents are not from Trump. They belong to the government. The only harm Trump suffers when these documents are in the hands of the Justice Department is the ease with which he can be prosecuted – it really puts an end to the question of whether he possessed them.

In reality, the only people suffering harm related to these documents are the public and those who covertly protect us because top secret information was among the documents.

That brings us to #4. And the former president doesn’t have a case there either, because he does have an adequate remedy, although his defense team should hope they never have to resort to it. The bad news is that Trump should be impeached; The good news is that Trump could then exercise his right to appeal (challenge) the search warrant and file a motion to quash the search results. In other words, Trump could seek to keep the seized documents from prosecution by attempting to argue that they were obtained in violation of his Fourth Amendment right to protection from unreasonable search and seizure.

The job of a criminal defense attorney is to achieve the best possible outcome for the client. The defense attorney looks at the facts and the applicable law in the hope that one of them favors the client. A skilled defense attorney will look at the intersection of a case and state that “if the facts will take me this way, I will take this way” or “if the law will take me this way, I will take this road.”

When the district judge considered granting Trump a special master, she should have seen clearly that Team Trump was attempting to delay proceedings.

But what happens when the defender doesn’t have either? Then the strategy may be to simply slow down the inevitable. And this is where the district judge must step in to stop the reckless delay. The district judge has a dual responsibility. First, it must be ensured that the delay is not the result of defense arguments that cannot be supported by applicable law. The other is to determine whether the defense has argued in good faith that the law is wrong and should be changed, if not repealed.

When the district judge considered assigning Trump a special master, she should have made it clear that Team Trump was attempting to delay proceedings by simply choosing to ignore fundamental separation of powers and the law concepts.

A fifth grader knows that the judiciary cannot make laws. A 3L or third-year law student who has undergone a criminal trial knows that a search warrant is issued by a judge after the government has established that there is a high probability that evidence of a crime is in a particular location being found. A third-year associate at a law firm knows the difference between a court (where an injured party is awarded damages in money, for example) and a court of equity (where the court tries to be fair by, for example, issuing an injunction to maintain the court). Status quo until the case is closed). And I knew quite early in my criminal history that it is rare that a criminal court can or will exercise adequate powers in a criminal proceeding. In Trump’s case, the district court decided to sit as the Court of Equity. That was totally inappropriate.

Fortunately, the Court of Appeals was right. Team Trump’s arguments were a sideshow. They were a not-so-veiled attempt to keep the Justice Department from sitting down with the documents seized under a court-blessed search warrant and deciding whether it’s time for Trump to hold himself accountable for his conduct. The former President cannot leave those charged with enforcing our laws on a wild hunt forever. The 11th Circle was right when it told the Trump circus to put up its big tent.

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