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Justice should welcome special master for Mar-a-Lago case

What if Judge Aileen Cannon is right? In terms of conducting a criminal investigation, what is the actual harm in appointing a special master in the Mar-a-Lago case?

For argument’s sake, let’s take the point of view that appointing a special master is no big deal and will eventually work to the government’s advantage.

Why would anyone do that? 

Because criminal investigations are complicated, and one must take the long view here. The Department of Justice (DOJ) needs to keep its powder dry for the time being. Resist any appeal, for now.

The mother of all legal battles will likely come after an indictment — if any — comes down. Should Donald Trump or any of his associates be charged, the legal defense team would almost certainly file a motion to suppress all evidence obtained by the government derived from the execution of the search warrant at Mar-a-Lago.

The court would then set a date for a suppression hearing, which would effectively be a mini-trial — because should the government prevail (and they should, given what is known about the case so far), it would be game – set – match: DOJ. Evidence from the search warrant would be admitted into court during the actual trial, and Trump has no viable defense, that I see.

So, the suppression hearing would be the big deal.

The government’s hand would actually be reinforced during a suppression hearing by the appointment of a special master: DOJ could argue that not only did the FBI follow every DOJ protocol with regard to the search warrant but the evidence was also reviewed by a special master as requested by the Trump legal team.

It should not take more than a month or so for the special master to analyze the documents seized, so those arguing that the special master appointment is slowing things down with regard to the investigation really don’t know what they’re talking about, because an appeal of the special master decision to the 11th Circuit — one of the most conservative in the land — would likely take months.

So, when Judge Cannon asked out loud to the government “What do you have to lose?” she was right: There is almost nothing to lose.

Should the special master exclude a couple of miscellaneous documents, the DOJ would still have several hundred at its disposal to prosecute.

If the special master were to exclude all the documents seized, using an expansive interpretation of executive privilege, then the DOJ must fight that legal battle to the highest court.

But what are the odds of that happening? Almost none.

The documents seized belong to the government, not the ex-president. That is the whole point of the search warrant; in fact, that is the whole point of the entire investigation.

DOJ needs to swallow hard and get on with its investigation — and, yes, that means dealing with a special master.

The big legal fight — if there is one — will be at the suppression hearing, and the fact the DOJ will have followed every protocol will be better served by abiding by Judge Cannon’s wishes and utilizing the special master.

The likelihood of a stronger government hand at a suppression hearing, should there be one, trumps the needless delay of wasting time now over premature legal bickering and appeals with regard to the special master.

The DOJ needs to recognize that fact and ride out the appointment of a special master, because it holds the winning hand — and it can demonstrate the absurdity of Judge Cannon’s legal reasoning later, if necessary. Appealing now would only move the game to Donald Trump’s home court: slow-walking the justice system, one of his specialties.

Justice would best be served if DOJ did not to fall into that trap.

I don’t see that Trump has any viable legal defense for his ill-considered actions with regard to mishandling government documents. It appears that Bill Barr, his former attorney general, agrees.

DOJ should not help create a defense for him: It should finish the investigation, hand down an indictment and do so in short order — and, yes, that means dealing with a special master.

Martin J. Sheil is a retired supervisory agent for IRS Criminal Investigation with 30 years experience, including service as coordinator of the Organized Crime Drug Enforcement Task Force (OCDETF) for the Gulf Coast Region, Branch Chief for the North Texas District (Dallas), Special Agent in Charge for the South Texas District (San Antonio) and as Director of IRS CI Asset Forfeiture in Washington, D.C.

Tags Appeal appeals court attorney-client privilege Bill Barr classified documents Criminal procedure delay tactics DOJ Investigation Donald Trump Executive privilege FBI raid Mar-a-Lago affidavit Mar-a-Lago search National Archives and Records Administration Search warrant Special Master top secret documents Trump lawyers United States Department of Justice

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