Judge Raymond Dearie conducted his first hearing as “special master” over the documents the FBI removed from Mar-a-Lago on Tuesday, and it was not a good day for Donald Trump’s legal team. Dearie not only insisted that the whole thing should move along quickly, threatening the delay Trump so desperately wants, he instantly blasted apart the idea that Trump’s attorneys could cast doubt on whether or not documents were classified while refusing to provide evidence that they had been declassified.

“You can’t have your cake and eat it too,” said Dearie, using an analogy that we’ve heard somewhere before about this issue. 

The bigger point about the classification of documents wasn’t just that Dearie told Trump’s team to take a hike, in no uncertain terms, if they expected unfettered access to top secret documents. It was that Trump’s team admitted—both in the hearing and in a letter that they sent to the special master on Monday—that the whole purpose of refusing to say whether Trump had actually declassified things was because they were trying to preserve a line of defense against future indictment. Dearie made it clear he didn’t care. Trump’s team had to put up or shut up.

They shut up.

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As The Washington Post reports, Dearie quickly did away with attempts by Trump’s legal team to draw out the process and use every minute of the unnecessarily long time limit given by Trump-appointed Judge Aileen Cannon. “We are going to proceed with what I call responsible dispatch,” said Dearie. In their earlier response to Dearie, Trump’s team wanted to walk through the process very slowly, not concluding until Cannon’s Nov. 30 deadline. Dearie, who has been special master in other cases, saw no reason that the process should last beyond Oct. 7.

Dearie also made short work of Trump’s claims concerning classification. Before this meeting, Dearie had asked Trump’s attorneys to specify which documents he claimed to have declassified. They refused to do this, saying that Cannon hadn’t asked for it and that by tipping Trump’s hand in the special master process, they would be taking away options for future litigation. 

In other words, Trump wanted to preserve the idea that he might have declassified documents, or that he might not have declassified documents, placing all the documents in a kind of Schrödinger’s cat position where they had to be treated as if their status was undetermined. They used the threat of possible future prosecution as “proof” that Trump might be endangered by telling the truth.

None of this struck Dearie well. He took less than a minute to dismiss the whole suggestion, telling Trump’s team that the government showed evidence that documents were classified, and if they were not going to present evidence that they were not classified, he was going to treat them as classified. Done and done.

Trump fared no better on other arguments as Dearie moved the 40-minute hearing along, coming down with the government on almost every point. If Trump’s team is going to follow through on veiled threats they would go crying to Cannon, it’s time to go try that now.

Dearie made clear at several points that in seeking a special master, Trump was asking for extraordinary relief. The burden for proving that he deserves that relief is on Trump. Through much of this, Trump’s legal team was silent.  

About the closest thing to a win that Trump’s team achieved was when one of his attorneys asked Dearie not to consult the National Archives about which documents fell within the Presidential Records Act. According to Trump’s team, the archives are “highly politicized.” Presumably that means they’re angry because Trump kept them waiting for months and lied at every turn. Dearie replied that he wasn’t planning to talk to the Archives … but “won’t hesitate” if he needed to.

Washington Post conservative columnist Jennifer Rubin called the hearing “worse than a train wreck” for Trump. She also noted that, after weeks in which the nation has been faced with the illogical, law-ignoring, fact-twisting arguments of Cannon, Dearie’s hearing “came as a breath of fresh air—and a reminder that not every judge is an unabashed partisan.”

It was that. Now, here’s hoping that the 11th Circuit overturns everything Cannon did in the first place, so that Dearie, and the Department of Justice, can drop this nonsense. And investigators can get back to polishing up the finer points of that upcoming indictment.


Good judges are more important now than ever. In some states, judges are on the ballot this November. Tune in to this week’s The Downballot to listen to Justice Richard Bernstein talk about what being on the Michigan Supreme Court has been like, and how his re-election campaign is shaping up.


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This is a Creative Commons article. The original version of this article appeared here.

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