If Donald Trump and his lawyers hoped to slow down the Justice Department’s investigation with their request for a special master in the Mar-a-Lago scandal, their plan is proving to be frustratingly effective.
It was a week ago when U.S. District Judge Aileen Cannon gave the former president and his team effectively everything they wanted, including blocking parts of the ongoing criminal investigation. The process has slowed to a crawl ever since. NBC News reported late last week on the most recent developments:
Former President Donald Trump and the Justice Department on Friday each put forth two candidates to serve as a court-appointed special master who would examine documents seized from Mar-a-Lago, while staking out vastly different positions on the scope of the potential review. … The Friday court filing also spelled out areas of disagreement between Trump and the Justice Department over the scope of the potential document review.
Today, both sides will respond to their rivals’ proposals for special master candidates.
As that part of the process continues to play out, federal prosecutors are also waiting to hear back from the Trump-appointed judge on whether the Justice Department can resume their review of retrieved documents related to potential national security threats. If Cannon balks, prosecutors will take their chances with the 11th Circuit Court of Appeals.
But in the meantime, Politico flagged a tidbit from Team Trump’s latest filing that stood out for me:
Notably, in the Friday night filing, Trump’s attorneys once again did not echo Trump’s claim that he had declassified any of the materials he possessed at Mar-a-Lago.
As Ryan Goodman, an NYU law professor and former special counsel at the Pentagon, noted late last week, the Justice Department, in its Thursday filing, all but dared the former president’s lawyers to make the declassification defense in the court.
But the Republican’s legal team wouldn’t bite — and it’s worth pausing to appreciate why.
Looking back over the past month, Trump has had plenty to say about the investigation into the classified materials he took and refused to give back, but the bulk of his focus has been on two key claims:
- The FBI “plants” incriminating evidence because it’s a corrupt and lawless institution.
- This entire controversy is meaningless because he declassified the documents in question.
In theory, if the Republican’s assertions had merit — or more to the point, if they were rooted in reality — his lawyers could include them in their court filings. Indeed, they would be important and legally relevant to the case.
But in practice, the attorneys ignore their client’s claims because they know they can’t get away peddling nonsense.
It’s not as if the Republican’s lawyers are unaware of their client’s claims. On the contrary, it’s likely they’re paying close attention to the former president, who’s ostensibly paying their legal fees.
But they’re also aware of the fact that they face a very different set of professional parameters: Failed former politicians can say whatever they please in public forums, and Trump has clearly come to believe he can lie with impunity. Lawyers, who can be sanctioned and disbarred, have no such luxury in their court filings.
There are no real doubts about the veracity of Trump’s claims. The “planted” talking point is obvious nonsense, and the idea that he declassified all of these materials before leaving the White House has been rejected as absurd by former members of his own team, including his former attorney general. Evidently, they’ve been discarded by the former president’s lawyers, too, who know better than to repeat lazy lies. If this dynamic sounds at all familiar, it’s not your imagination: After Trump’s defeat in 2020, he similarly peddled all kinds of conspiratorial lies about the election results, even as his legal team went to courts with entirely different claims. A recent Washington Post analysis explained that shortly after the 2020 election, “Trump claimed all manner of things about the voter fraud he assured the public was rampant. But when his lawyers and their allies appeared in court, these ridiculous and debunked claims were often missing. They even backed away from the ‘fraud’ and ‘stolen’ talk.” The Post added, “Trump’s legal team signed a petition acknowledging they had no evidence of dead people voting, even though he had made that claim outside of court, including in a news release. Added another Trump lawyer when asked whether she was claiming fraud or misconduct: ‘I am not proceeding on those allegations.’” To paraphrase a line often attributed to Mark Twain, Team Trump’s strategies don’t repeat themselves, but they often rhyme. For the Republican’s sycophants, weighing how much to read from the former president’s script, all of this should be seen as highly informative. If Trump’s lawyers refuse to repeat his lies about the classified documents scandal, shouldn’t GOP officials and candidates show similar caution? Or are they as indifferent to the truth as Trump?
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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