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Wednesday, August 31, 2022

Trump and the documents - Tump lawyers apparently filed a civil suit separate from the warrant court activity - its application, issuance and return.

 In seeking a special master, Federal Rules of Criminal Procedure do not apply because it apparently is not a criminal law filing. There is no pending criminal action.

Key online filings from that civil action are: Trump's and DOJ's. Please note that case captions are "the same" - but not identical as to caption detail, as if the special master request was first filed and by the time DOJ filed the matter had been assigned to a Judge CANNON. 

Trump's lawyers filed first, with a separate civil case opened as a result. 

Without seeing the Court's case docket for CASE NO. 22-CV-81294-CANNON, we are left with a best guess on how one "parties" designation on one substantive filing led to the caption change on the other, as a procedural matter, but the cause number is clearly defining - there is one single civil case containing two opposing filings. 

The online redacted warrant copy Crabgrass reviewed has yet another case caption, so readers can see this is a separate matter from the initial warrant filing and execution activity.

Each of the substantive items cited in the above paragraph is a filing which speaks for itself, and readers can form opinions of the quality and gravitas of each. 

The opinion Crabgrass holds is that after seeing the DOJ spelling out more damning obstruction of justice detail, the rambling politicized Trump filing might have been better left undone.

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Worth noting: FRCrP 41(g) exists and a "special master" application arguably could be premised on that, but FRCrP 41(a)(1) seems to make that whole rule advisory rather than governing in its warrant proceedings reach. Rule 41(a)(1) states:


Rule 41. Search and Seizure

(a) Scope and Definitions.

(1) Scope. This rule does not modify any statute regulating search or seizure, or the issuance and execution of a search warrant in special circumstances.

The circumstances are surely special, yet it appears FBI-DOJ conformed its warrant application, search and seizure by that rule.

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Beyond that, again, FRCP (Federal Rules of Civil Procedure) apply in civil actions. And it seems the special master question is being processed as a civil case for relief after a grand jury warranted search and seizure; where the claim is a special impartial party should examine seized documents to determine which, if any, might be privileged.

Whether a special master is appointed or whether the FBI taint team review will be deemed to apply and suffice is a question resting on the discretion of the judge (in this case a Judge Cannon who reportedly was appointed by Trump to that District Court bench).

___________UPDATE____________

EmptyWheel on otherwise privileged material which might fit an exception, given the stall/obstruction dimensions of Trump's side.