UPDATE (Aug. 26, 2022, 12:44 p.m. ET): Trump's legal team will likely have a busy weekend after the long-awaited search warrant affidavit in the Mar-a-Lago search was made public on Friday — but not without redactions.
Former President Donald Trump’s legal efforts to challenge the FBI’s Aug. 8 search of Mar-a-Lago are making his post-election, legal-disaster, clown-car operation look professional in comparison.
Even people who know little about the law are looking at all of this and saying, “I could do better!”
The truth is that some of them, at least, are probably right.
It’s not clear what, if any, strategy is behind the legal decisions, but it is clear that they aren’t making Trump’s legal troubles go away.
It’s not clear what, if any, strategy is behind the legal decisions, but it is clear that they aren’t making Trump’s legal troubles go away — and they could be making them worse.
Let’s start with the search. Given what we now know about how long the National Archives and FBI had been working with Trump and his people in trying to retrieve documents that Trump should have turned over to the archives on Jan. 20, 2021, it’s shocking that he and his legal team weren’t expecting agents to show up.
Once they did, agents reportedly found sensitive and even classified documents in multiple locations.
All of that, however, was back on Aug. 8. This column is really about what followed.
What happened next is virtually inexplicable: Trump and his lawyers did nothing, legally speaking, at least on a public front.
On top of that, after they knew the FBI was investigating potential violations of the Espionage Act and other crimes — because they got the search warrant on Aug. 8 that told them what laws the FBI had used to obtain the warrant — Trump still continued speaking out to his most ardent followers on Truth Social, his MAGA-superfan social networking site.
“In early June, the DOJ and FBI asked my legal representatives to put an extra lock on the door leading to the place where boxes were stored in Mar-a-Lago — We agreed,” Trump wrote in an Aug. 10 post. “Then on Monday, without notification or warning, an army of agents broke into Mar-a-Lago, went to the same storage area, and ripped open the lock that they had asked to be installed. A surprise attack, POLITICS, and all the while our Country is going to HELL!”
But, despite all the online screaming, the lawyers did nothing in court. In fact, it wasn’t until the Justice Department filed a motion to unseal aspects of the warrant that Trump’s lawyers, through a DOJ filing, even weighed in. That was on Aug. 12, and it was simply not to object to unsealing aspects of the warrant.
All the while, Trump and his various direct and indirect spokespeople criticized the search and amped up anger against the search and the FBI — even after a Trump supporter was killed by law enforcement after trying to attack the FBI field office in Cincinnati on Aug. 11. (Later investigations found the man had posted 374 messages on Truth Social in the eight days before he was killed.)
After the search warrant and receipt of property were made public on Aug. 12, did Trump’s legal team then act? Nope.
After the search warrant and receipt of property were made public on Aug. 12, did Trump’s legal team then act? Nope.
Instead, we got more public bluster, but no legal moves. These statements included several from John Solomon, the reporter who Trump also named as one of his National Archives and Records Administration representatives in mid-June (meaning he would be authorized to access any of Trump’s presidential papers) and who has become a kind of spokesperson or pass-through for Trump statements or disclosures in recent weeks.
It was Solomon who announced the ludicrous claim that Trump “had a standing order that documents removed from the Oval Office and taken into the residence were deemed to be declassified.”
And yet, as time passed, it sort of seemed like there might be no legal response at all. It wasn’t until a week after that, on Aug. 19, that word came that Trump’s “legal team” was “considering” going to court to seek the appointment of a special master — an independent party who can review any questions about the materials taken by the FBI. The issue there: It was still just word of what the Trump team was “considering.” There was no filing.
Remarkably, that was probably the high point of the legal effort thus far.
It wasn’t until, at long last, this Monday that Trump’s team filed legal documents related to the search. But, thus began an unbelievable amount of odd steps and missteps — again, for one filing.
First, on a truly, incredibly basic level, two of the three lawyers on the filing don’t normally practice in the Southern District of Florida federal courts, meaning they needed to seek pro hac vice admission. Such requests are granted as a matter of course. However, there are rules in each court to requesting such admission — and Trump’s lawyers failed.
On Tuesday, U.S. District Judge Aileen Cannon, a Trump appointee, denied the pair’s applications because they failed to file their motions in accordance with the local rules. The judge even included a link to the “sample motion” for such admission in her order to help them do better next time. Ouch.
On Wednesday, after a second attempt, things only went marginally better. The clerk’s office noted that the filings were again deficient — apparently because the requests weren’t filed electronically, as required — but Cannon did nonetheless grant their admissions, noting that she could withdraw the grant at any time (again, normal, but perhaps with a bit more of an edge here).
As one lawyer who has been commenting on the proceedings said on Twitter, “The ball is on a tee and the count is 0 and 2.”
Related
That, somehow, wasn’t actually the worst part. In another order, Cannon was, arguably, even more harsh on the lawyers when she pretty much asked Trump’s crackerjack legal team all of the questions: How can I hear this case? What do you want? Why aren’t you talking to the judge who actually issued the warrant?
Oh, yes. That. Unlike what basically any lawyer expected — immediately asking the judge who granted the warrant, Magistrate Judge Bruce E. Reinhart, to appoint a special master — the Trump legal team waited two weeks and made their request in the form of a new lawsuit. In a cover sheet with the filing, the lawyers characterize the filing as an “Original Proceeding” and don’t even mention the federal case number assigned to the warrant as a “related case.” And yet, their filing itself is characterized as a “motion,” which comes in a case — not a complaint, which starts a case. The filing also mentions the search warrant case and case number on page 6 of the motion, despite not having called it a related case on the cover sheet.
It appears the lawyers did all of this to try their luck at a new judge, but it’s not clear how well that’s working out for them.
With a numbered list, Cannon asked for the legal team to actually do legal work — requesting such basic things as what jurisdiction the court has to decide this matter, “the precise relief sought,” and an explanation of how this relates to the proceeding before Reinhart.
Additionally, although not raised by Cannon, there is the question of whether Trump’s legal efforts even matter. The FBI has had the materials for two-and-a-half weeks at this point. It’s hard to imagine the review isn’t complete or at least approaching completion. At that point, it’s not clear what a special master would do.
In short, the Trump lawyers were completely unprepared for a search that seemed inevitable, or at the least likely; they took two weeks to respond to it; when they did so, it was an incredibly poor start; and, regardless, they might end up being too late.
And yet, we will get more. The responses from Trump’s lawyers to Cannon’s questions are due by Friday, so we’re certain to get our next adventure in this haphazard (half-assed?) legal journey by week’s end.
Unless they file late. Which is entirely possible.