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It's time for the Biden administration to play hardball in the Mar-a-Lago case.
overturning the requirements set forth by special master Judge Raymond Dearie for his review of the documents seized at Mar-a-Lago. It is beyond startling. It not only places highly unusual limitations on the respected special master whom Cannon and all parties agreed to independently review Donald Trump’s claims challenging the seizure, it also has the potential to hobble the entire review process—and could even end Dearie’s and/or Cannon’s role in it.
To understand why, recall the specific requirements that Dearie imposed and Cannon nullified. Finding that Trump’s lawyers could “not have it both ways,” Dearie ordered them to address key search-related claims made by the former president, among other matters. This included ordering the Trump’s lawyers to provide evidentiary support for the claim that any of the seized documents marked classified had been unclassified; to provide any evidence that DOJ incorrectly described any of the documents; and to submit any evidence that any of the documents in question were not in Trump’s possession.Since there is no evidentiary basis for any of these claims, Trump’s lawyers were in a very difficult spot. They had four options. The first was to admit there is no such evidence, making it impossible to continue representing the former president while salvage their reputations. The second was to refuse to comply with the order and face contempt of court. Third, they could resign from representing the former president based on the recusal mandates of American Bar Association Model Rule 33, which bars counsel from making any statement to a court they “know to be false.” The recusal mandate goes beyond actual knowledge to include things lawyers “reasonably should know” to be false, or that “may be inferred from the circumstances” to be false. The fourth and final option was to contest Dearie’s order with Cannon. That is the approach they took, and it paid off for both the lawyers and their client on Thursday. This victory for Trump will force the Department of Justice to make a tough tactical decision about the best path forward. All options will be on the table.At this moment, DOJ probably cannot yet appeal, because doing so would be legally premature. That gives its attorneys time to plot their next move. Given the extreme and one-sided rulings Cannon has already made, DOJ need not fear making her more hostile than she has already shown herself to be, so the door to aggressive countermoves is wide open. One such choice would be to file a motion to remove Cannon from the matter entirely, arguing that her opinions have demonstrated a level of bias that cannot be tolerated—and further, that her continued oversight of the matter is a
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