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

To the untrained and the unwary, defending a person accused of a criminal offense may mean deploying a “win at all costs” strategy. But when Donald Trump’s defense team requested a special master to review records that were lawfully seized from Mar-a-Lago under a search warrant, we saw the startling hubris of defense attorneys who seemed to have closed their eyes to the law when it did not suit their goals.

Wanting a special master was right out of Trump’s stalling, obstructing and using the time to play the victim circus act. The 11th Circuit U.S. Court of Appeals ruling Thursday that a district judge was wrong to appoint such a review of the documents and stop the Justice Department from using them in its criminal investigation of Trump was the right move. 

Trump’s defense team had to know its request was meritless based on the separation of powers. In fact, a grade school social studies class (I’m surely dating myself now) may have known it. That’s where many first learn that the legislative branch makes the law, the executive branch enforces the law, and the judicial branch interprets the law.   

Every defense attorney with a pulse knows, or should know, that the judicial branch, in just about every instance, has no right or authority to butt into a criminal investigation conducted by the executive branch (here, the Justice Department). 

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And if a defendant believes that it has the proverbial golden ticket (a nod to Willy Wonka) to get the judicial branch to stick a broomstick into the spokes of a Justice Department investigation where let’s say, the department has gotten and executed a search warrant, then the law is as clear as the right eyeglass prescription. The aggrieved party (here, Trump) must show proof of the following four: (1) the government’s callous disregard for his constitutional rights; (2) his interest in or need for the things seized; (3) he will be irreparably harmed if the stuff is not returned; and (4) he doesn’t have an adequate remedy at law. 

Team Trump could not muster the strength to jump over the first hurdle. Not only was the government not callous when it came to Trump’s constitutional rights, but the government was also deferential and almost subservient to him. How many times was the former president politely asked to simply deliver the documents?

Now that we know that Trump’s defense had no ground to stand on the first standard of proof, what about the other three? Well, the Trump Team could fare no better with the second or third one. It comes down to one simple fact: These documents are not Trump’s. They belong to the government. The only harm Trump suffers if these documents are in the hands of the Justice Department is the ease with which he can be prosecuted — it is really over at the question of whether he possessed them.  

In reality, the only one who suffers harm in the context of these documents is the public, and those who protect us in an undercover capacity because among the documents were highly classified information.