Listen to me: Please Calm Down. I’ll explain the Judge’s Order Re Trump’s Special Master

I get it that we are all tired of Trump’s lawlessness. I want to see that SOB’s handcuffed perp walk. I’ll explain why I’m not worried about the Sept 5th Order appointing a Special Master.

If I did this correctly this article will publish while I’m in my 8AM teams call because nothing says “Monday Mah” like a federal holiday which now makes your Tuesday a Monday. Yes that sentence made my head hurt. I’m also going to be unavailable for the majority of today and most of tomorrow because it’s that time of year where I either work your butt off or risk my contract renewal won’t automatically evergreen…I told one of my bosses (late last week) I think the firm fixed price is broken and it’s time for an earnest discussion of migrating to “tine and materials” —for the record for the past 16+ years this is the waltz we dance nearly every year.

I mean for those who followed me on twitter know there are very specific times of the year (like Nov to March and Aug & Sept) where I’m going nonstop. With 18+ hour work days are my temporary normal. And of course I drink Red Bull like it’s water. These high intensity work-times are immediately followed by a fallow period. A byproduct is this constraints my extracurricular activities. I also use that “down” time to recharge my batteries and I have some modicum of free time. Plus now that we are finally in a post-pandemic phase that means bi-monthly traveling for industry symposiums, work shops etc. Adulting is completely overrated, the pay is meh but the supposed benefits truly underwhelming.

I’m begging you, STOP LISTENING to BLUE-QANON

Here’s the “cut to the chase” part —if you are solely reliant upon social media for a well rationalized and/or an informative “thread” I’d once again urge you to look at the source of your information. I can count on one hand the people I trust on social media when it comes to Court Filings. Alternatively if you encounter a blue-QANON in the wild, you need to ask yourself these primary question:

• …of the hundreds (possibly thousands) of bullshit threads, has any of this person’s predictions ever come true?

• does this person consistently withhold documents and then consistently offers shitty and I mean the shittiest of shitty ‘hawt takes’…where they are proven over and over to be wrong? (Whispers, fun fact my youngest can and has argued better ‘hawt takes’ then some unemployable grifters)

• Does this person have any expertise, in the subject area(s) they pretend to be the most preeminent expert in?

If any of those generalized questions return a: No. Nope. Nada. Then I think you might be unwittingly exposing yourself to social media emotional abuse. In short I’ll never go back to Twitter because it’s like a echo chamber hamster wheel of “fakes, phonies and pretenders” running a grift or multiple grifts.

Meaning if you choose to be solely reliant on the Blue QANON and QANON then I regret to inform you that you’ll likely be misinformed, emotionally triggered and/or deceived by said individuals. These are the same individuals, who’s only goal on social media is chasing the dopamine fix vis-a-vis “likes” and “retweets” —if that’s how you choose to consume “opinions” versus facts. Then I can’t and I won’t judge you. Okay well maybe I’ll judge you, just a little bit <snort>. I’ve been told that I have “judgey-eyes” and that I’m not nice when I have to repeat things. And occasionally I’m told I’m “bossy” -insert misogynistic douche canoe triggered eyeroll-

• ORDER. Signed by Judge Aileen M. Cannon on 9/5/2022. See attached document for full details. (Entered: 09/05/2022)

• also available via my Scribd Account

Trump got what he wanted —sort of, here’s why:

I know that I’m not alone when I say: of course Judge Cannon was always going to grant a special master. I also know that instinctively there would be hysterical outrage. That’s expected by those who don’t understand. Before we dive into the September 5, 2022 ORDER (or see Scribd) which GRANTED Trump’s request. I’d like you to take a deep breath and count to five (if I don’t like you I’d say take a dee[ breath until you pass out do to lack of oxygen. I’m kidding, sort of.

Of course there’s righteous outrage by Judge Cannon’s decision. Honestly though I think that outage is in two distinct categories: 1) those who believe that Trump will never be held accountable, and 2) those who understand the precedence Judge Cannon set by granting Trump’s extraordinary relief. Alternatively I’d like to walk you through the Order and to provide you with an alternative point of view.

Alternative POV Re Trump’s Morion of a Special Master;

Off the top I do think it was a bad ruling. But again I’m biased because I can’t take Trump or his attorneys seriously. And I most certainly do not respect the attorneys Trump hires. Respect in my industry means, intellectually you can disagree, and at time vehemently disagree, but once the arguments are made you have to accept the Court’s ruling (or carve out a bunch of litigation cost for an Appeal)… as previously noted last week, Trump’s filing was bullshart, light on any actual case law and even lighter on “success of merits” —which is one of the four elements required to obtain extraordinary relief.

A few factual observations on page 1, this is important so I’d like to refer you to page 1, second paragraph:

• Trump’s Motion was “granted in part” meaning YES he got the special master appointment, but not the return of ALL the items seized

• The ODNI is still allowed to proceed with the National Section Risk assessment (honestly that was never in jeopardy)

• The FBI seized Tax Information, Medical Records and other highly personal items.

On the later bullet point, this was expected. Mainly because those of us who understand the criminal investigatory process know that occasionally non-relevant info/docs can get unintentionally swept up during a search and seizure warrant. Add in that Donald Trump’s filing system is like a squirrel on Red Bull hiding their nuts before winter hibernation. No really Trump’s filing and organizational skills make him a “hoarder light” in my book. I mean just look at the man, does he convey “squared away” and “self discipline”? Of course not, he’s obese and half-the-time dresses like a hobo. Nothing and I mean nothing in the public record suggest that Trump is a caretaker of records.

The whole “she’s a Trump appointee” argument is hilariously uninformed. I’m serious if anyone uses that as an argument, walk away from said person because any further interaction will make you less smart and you’ll likely walk away feeling like you were mislead.

Frankly most of us in the legal community bristle when pundits or people in general throw that argument around like it’s a 600lb sumo wrestler. Because it’s an intellectually stunted argument but boy it makes for “great sound bites” —So again let’s look at the nitty gritty details of the September 5, 2022 Order - (see Scribd) specifically I’d like to draw your attention to the text in bold;

…GRANTED IN PART. The Court hereby authorizes the appointment of a special master to review the seized property for personal items and documents and potentially privileged material subject to claims of attorney￾client and/or executive privilege. Furthermore, in natural conjunction with that appointment, and consistent with the value and sequence of special master procedures… Court also temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order. This Order shall not impede the classification review and/or intelligence assessment by the Office of the Director of National Intelligence (“ODNI”) as described in the Government’s Notice of Receipt of Preliminary Order

Now here’s an alternative thought, from what little I know about Judge Cannon, nothing and I mean nothing suggest that “she’s in Trump’s pocket” and until such time there’s irrefutable evidence, she will get the respect and the benefit of the doubt, from me. Mainly because I’m sick of hearing “XYZ is in Trump’s pocket”

Moving on to pages 3 thru 5 this is mainly a recitation of the current timeline of events involving; Trump, NARA and DOJ. One (of many) reason(s) I published a pretty accurate and detailed timeline late last week, inevitability I knew this would likely be included in the Judge’s Order. So you might want to reread this article, or not. The choice is yours

Remember when any other American president —in modern history- stole hundreds of classified documents? Yea me neither

I’m intentionally not going to be snarky but I do want draw your attention to pages 4 & 5 and specifically the footnote. Largely because the Judge overtly stated “parties were unable to reach an agreement” and at first that didn’t make any sense to me. Mainly because a target of a criminal investigation (of which there are numerous concurrent criminal investigations) —typically the Government doesn’t “negotiate” with the criminal target. What’s also notable is the disclosure of: ‘agents seized approximately 11,000 documents and 1,800 other items from the office and storage room…” —yes there has been copious public reporting but now we know it to be a fact in the record…but again I can not recall when the DOJ negotiated with a target. But this particular sentence literally made me say, out loud WTFingF —of the four extraordinary relief sought by Trump, he got 3 out of 4….but again I’d like you to read what’s highlighted and the footnote, because it’s important:

In the absence of any agreement between the parties, on August 22, 2022, Plaintiff filed the Motion for Judicial Oversight and Additional Relief, seeking (1) the appointment of a special master to oversee the review of seized materials regarding identification of personal property and privilege review; (2) the enjoinment of further review of the seized materials until a special master is appointed; (3) a more detailed receipt for property; and (4) the return of any items seized in excess of the search warrant

Footnote Number 5 -well that’s NEW info:

Here we can observe the Court oddly concedes the date of said conversation with Trump and the DOJ is “unclear” that’s legalese for one party is lying and the other party failed to prove the lies…

The exact date of that conversation is unclear, but all agree that the conversation took place soon after the search. Plaintiff references August 11, 2022, in the Motion, three days after the search(and eleven days prior to the filing of the Motion). The Government does not offer a different view in its Response or otherwise challenge the substance of the rejected requests. Counsel for the Government stated during the hearing that Plaintiff’s request for a special master was rejected on August 9, 2022, the morning after the search.

The Privilege Team & DOJ disclosure(s)…

Again while some are having real life conniption fits (on their social media accounts) here are some facts;

• Yes the appointment of a Special Master will slow the criminal investigation, partially but not completely.

• Yes Trump was/is Roy Cohn’s prodigy and he knows how to weaponize the judicial system for his betterment and/or self gain.

• Yes, the preliminary injunction means the Government can’t use/see any of the evidence seized, until the Special Master approves and releases it to the investigating team.

• YES —sometimes the Filter Team can make a mistake, because after all human are fallible. Nonetheless I have zero doubt there was nothing nefarious because it was the Investigative team that alerted the Filter Team and the Court. Honesty is always the best policy. Always.

• I don’t think the current narrative being bandied about that the Special Master will stop the criminal investigation is accurate. A slight pause is more accurate.

Now before you lose what few marbles you have left, I’m going to remind you that during Michael Cohen’s search and seizure warrant, a special master was appointed. Notwithstanding the DOJ eventually did unsealed a multi count indictment.

Conversely I’d argue that much of that time the Government likely gave Cohen at least one “Queen for a day” proffer session. Although I’m pretty sure Cohen had several proffer sessions. My point is; it’s reasonable safe to assume that same scenario will likely play out for Trump… on the “Queen for a day” proffer session, I don’t think the Government will entertain that mainly because

While acknowledging that investigators have “already examined every item seized (other than materials that remain subject to the filter protocols),” …the Government clarifies that “‘review’ of the seized materials is not a single investigative step but an ongoing process in this active criminal investigation”…

…exceptional circumstances presented…

Those three words encompass the breadth and “unprecedented” nature —meaning never in our Country’s history has a former POTUS repeatedly lied and/or mislead the NARA and/or DOJ. While some have falsely argued the DOJ went from 0 to 100 —the facts bear out that NARA and DOJ gave Trump extraordinary deference. So in some respects the court is correct by saying “exceptional circumstances presented” —more broadly the Court referenced: Richey v. Smith. 515 F.2d at 1245 and later Mesa Valderrama v. United States, 417 F.3d 1189, 1197 both of these cases set binding precedence, specifically (the 5thCCOAS) —and this is important, so read pages 8 thru 11 closely because the following part of the order is extremely important:

…for equitable jurisdiction purposes, whether the government displayed a callous disregard for the movant’s constitutional rights, whether the movant has an individual interest in and need for the seized property, whether the movant would be irreparably injured by denial of the return of the seized property, and whether the movant otherwise has an adequate remedy at law. (Emphasis Added)

“…Plaintiff faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public.“

As the Court explained the factors she is bound by previous binding precedence. If you read the order sans partisan bias then you’d know the Court’s order is pragmatic and oddly (sort of) well reasoned. In short the Court is balancing the inherent rights of a (potential) criminal defendant.

Let me explain in non-legalese: this Court Order will provide the prosecution cover should there be an unsealed indictment. Yes I know that sounds convoluted, but the way I see this; the Court’s decision to grant Trump’s request for a Special Master will somewhat indemnify the Prosecutors. Meaning looking down the pre-indictment road, if an indictment is unsealed then Trump will have an extraordinary hard time dismissing the Indictment because a “neutral third party” was appointed to ensure the Government didn’t violate the criminal rules of procedure. Again to be clear Trump’s Motion is in a civil case, not a criminal case. As pages 9 and 10 state:

The Government also has acknowledged that it seized some “[p]ersonal effects without evidentiary value” and, by its own estimation, upwards of 500 pages of material potentially subject to attorney-client privilege…. Thus, based on the volume and nature of the seized material, the Court is satisfied that Plaintiff has an interest in and need for at least a portion of it, even if the underlying subsidiary detail as to each item cannot reasonably be determined at this time based on the information provided by the Government to date…

Incidentally footnote 11 is, in a word: awkward for the Government. Mainly because Trump has returned to his one-swamp-donkey trick; “leaks and leakers are an enemy of the state” —because during last weeks high stakes hearing Trump’s team repeatedly pounded the “leaks & leakers” drum. And frankly I don’t fault him for that. Conversely the US Attorneys, FBI Director and Attorney General Garland better shutdown those leaks, forthwith. Those who are leaking to the mainstream media, you are harming an ongoing and very complex criminal investigation. Stop speed dialing your favorite reporters and focus on nailing Trump’s obese bollocks to the wall of justice. Your leaks are harming any future criminal prosecution of Trump. Period. Full Mutha-Phucking-Stop.

When asked about the dissemination to the media of information relative to the contents of the seized records, Government’s counsel stated that he had no knowledge of any leaks stemming from his team but candidly acknowledged the unfortunate existence of leaks to the press.

I’m serious about the leaking. When it comes to the DOJ and/or FBI there shouldn’t be leaks. The DOJ’s conversation should be in their Court filings. Obviously I’m saying AG Garland. USAO-DC and Dir Wray haven’t leaked anything. Must I remind you of the cadre of Blue-QANON goat screaming for Garland’s resignation? For months they tweeted that unpatriotic nonsense and every time someone sent me their tweets, I texted them back this YouTube video.

Those of us who not only live in the DC area but also work here and have numerous friends in various government positions, we actually know that sensitive and complex criminal investigation do not leak. The only leaking per say is the DOJ-OPA alerting the media to an unsealed indictment. Yet for months the cadre of Blue-QANON simply “felt” Garland wasn’t investigating Trump.

As it turns out yes of course the DOJ has multiple concurrent and ongoing criminal investigations in to Trump’s laundry list of criminal actions. Which include but are not limited to;

• his role in the deadly Jan6th Domestic Terror attack,

• Conspiracy to Obstruct an Official Government Proceeding,

• Conspiracy to Defraud the USA (vis-a- vis the fake electors scheme)

• Witness intimidation…

• Unlawful retention and storage of classified materials, stealing “other” Government property (trust me on that, more will come later)

Again if you read the Court’s Order, you’ll note that Trump’s Team as no time provided the Court why any evidence that the FBI special agent “mislead” the magistrate judge. That’s actually pretty important because in that same vacuum Trump failed to proffer any evidence that he had “declassified” any or all the documents he stole. However I’d like to specifically point out the Court’s concern regarding “the leaks” —this is elucidated on pages 11 and 12 —which reads in part:

…the Court takes into account the undeniably unprecedented nature of the search of a former President’s residence; Plaintiff’s inability to examine the seized materials in formulating his arguments to date; Plaintiff’s stated reliance on the customary cooperation between former and incumbent administrations regarding the ownership and exchange of documents; the power imbalance between the parties; the importance of maintaining institutional trust; and the interest in ensuring the integrity of an orderly process amidst swirling allegations of bias and media leaks.

Read page 12 carefully…

…because to those who are breathlessly screaming this Judge “is in Trump’s pocket” perhaps you overlooked the following in the Court’s Order. Or perhaps yo don’t really know or understand the criminal justice system, even though you pretend you do. Oh that’s right you’re the same clown-vanfuckstick that posted a conspiracy laden thread after Judge Salas’ son was murdered and her husband was fighting for his life. You decided to go full on Blue QANON & falsely told hundreds of thousands of followers that “Epstein was responsible” or a surrogate of Epstein was “the gun man” —seriously I’ll never understand why people believe anything you write. But I digress —as you’ll note here the Court understands the magnitude and unprecedented situation and (I’m okay if some of my readers disagree with me) that particular paragraph encapsulates part of her reasoning. As someone who’s long been an antiTrump person —I can genuinely appreciate the Court’s pragmatic approach. Mainly because (inarguably) the special master will help the Government/Prosecutors from carrying around the 700lb lead -partisan-balloon. In nonlegalese, what I am saying is the appointment of a special master might work in the Government’s favor and will preemptively take the wind out of Trump’s partisan sails.

…the Court takes into account the undeniably unprecedented nature of the search of a former President’s residence; Plaintiff’s inability to examine the seized materials in formulating his arguments to date; Plaintiff’s stated reliance on the customary cooperation between former and incumbent administrations regarding the ownership and exchange of documents; the power imbalance between the parties; the importance of maintaining institutional trust; and the interest in ensuring the integrity of an orderly process amidst swirling allegations of bias and media leaks.

Civil or Criminal Rules of Procedure…

I’ll cut to the chase, for years, when I was on Twitter I’d often tell my followers: if you want to get into the mind of Donald Trump, read his (really shitty) books, read his responses to the nearly 3,560+ lawsuits he was involved in. And most importantly; anything Trump says when attacking a perceived political and/or business enemy. Understand that Roy Cohn was Trump’s litigation mentor. Only then can you get inside Trump’s head. Trump has a nearly six decade long history of consistently using our judicial system as a weapon to either unjustly enrich himself or to muddy the waters of civil versus criminal. The aforesaid assertions are largely affirmed in footnote # 12. Read the text I highlighted, carefully:

Trump has yet to properly argued the warrant was unlawful…

As previously noted Trump waited over two weeks to file his civil motion —he also failed to argue any particularized argument regarding the search and seizure warrant (the Court specifically ordered him to file an amended complaint. You can read the analysis of the Government’s Response to Trump’s August 22, 2022 Motion (again in a CIVIL Federal Court, not criminal)

Potentially setting a NEW precedence

At time of publication it is unclear if the DOJ will seek a stay, pending an appeal. What Judge Cannon’s Order does, it sets a new precedence for nearly all others criminal targets. That her order could be interrupted as Trump continues to get special treatment and that the appointment of a Special Master (again remember Trump filed a civil action, not criminal) could be construed that all future criminal defendants deserve a special master, and a temporary enjoinment of investigators examining evidence obtained via a lawful search and seizure warrant. Again I’m not an attorney but reading the Court’s order it really appears she bent over backwards to rationalize Trump’s Motion and for unknown reasons found Trump’s arguments persuasive

What Trump is doing here is he’s using the cloak of “executive privilege” and “attorney client privilege” to shield his criminal acts. In sum he’s literally arguing the former executive still retains executive privilege and the executive branch shouldn’t have access to the thousands of documents Trump stole. And then spent upwards of 16+ months, intentionally lying and misleading the FBI and DOJ. While simultaneously moving the classified documents that he knew had to (by law) returned to the Government as the Archivist as the official custodian of records. However it is clear the Government indicated that there were at least two previous “privileged” incidents. As further detailed in the Filter Team’s Report. See page 15, footnote # 13 —in sum the investigatory team encountered at least two documents that fell under the privileged category.

Since Trump doesn’t the blanket of “executive privilege” my educated guess is these documents might fall under the Attorne-Client privilege umbrella. But again the Court’s Order really does contradict itself on numerous issues. Which makes it difficult to parse the Order sans overly spicy & critical analysis.

“Justice delayed is Justice denied”

Again I do think that Trump’s Motion is part of his Delay, Distract and Deny accountability strategy. Because to date that approach has all but insulated Trump from any criminal accountability. In short I’m kind of glad the Court Ordered the appointment of a special master. Assuming arguendo that (one of) the DC Grand Juries hands down a true bill —then Trump can’t use the predictable legal arguments, such as; spoliation of evidence, violation of certain constitutional rights, and/or “the deep state is the enemy of the state” —not to belabor this but Trump’s Motion was filed via Civil not Criminal Court.

Because one (relatively) nice thing I can say about Trump is; he didn’t need to get his JD from Trump-Scam-Grifter University. I’m pretty sure Trump obtained his “JD” via Roy Cohn School of Law. (note my acerbic sarcasm) . And if you know anything about the disgraced Roy Cohn, then you’d know just how often he used “dirty deeds and/or dirty tricks” to fully weaponize our Judicial system. Also see the 2019 FBI Vault release of over 700 pages regarding Cohn.

Again it’s unclear if the Government will appeal the District Court’s August 5, 2022 Order/Ruling but I wouldn’t necessarily rule that option out of hand.

Listen to me: be patient

I get it that the vast majority of adults are precondition to the “I want it now goddamnit” doctrine. While some might see that as a beneficial precondition, I tend to view it as a toxic creed. I’ve repeatedly stated my faith and confidence in Attorney General Garland, and more broadly the DOJ, as well as Dir Wray. When I say an indictment can take anywhere from 10 to 28 months. That’s because if you examine the DOJ’s case database —then you can run a variety of reports. Additionally if you read the most current timeline —then you’d know both NARA and DOJ gave Trump and his attorneys multiple chances to return the stolen property. Instead Trump actively obstructed an ongoing criminal investigation.

Here’s your daily saltwater therapy. Incidentally my grief counselor challenged me to find one thing beautiful a day and to take a few minutes to enjoy the beauty of it. Challenge was accepted by Moi. And come hell or high water I’m going to get one of the elusive airplane, moon and sunset shots. So for the past week I’ve timed and cut my nightly 3+ mile runs to enjoy the actual back of my neighborhood looking at the Blue Ridge foothills as sunset…

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Again it’s unlikely that I’ll publish an article later today and tomorrow —because I’m not a cyborg and I am learning to set healthy boundaries and expectations. If you need a proof of life then you can find me on Instagram. Where I post two reels a day (sunrise and sunset)…

I’ll see y’all in a few days. Until then: Be Well -Filey