Trump’s Special Master Suit Is Dead—Now the Real Case Begins

Judge Aileen Cannon’s dismissal of former President Donald Trump’s civil case arising out of the search warrant executed on his residence in Mar-a-Lago surprised no one—with the possible exception of Trump.

This is because Cannon had no choice, following a scathing decision by the federal court of appeals for the Eleventh Circuit that told Judge Cannon she lacked any authority to have taken the case to begin with—much less to appoint a Special Master.

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Trump had been given time to appeal the case further to the full Eleventh Circuit court, as well as to the U.S. Supreme Court, but uncharacteristically did not do so. Whether this was because Trump actually listened to his lawyers—who may have opined that neither the full appeals court nor SCOTUS was likely to take the case—or whether it was due to Trump losing steam after a series of political and legal defeats, the civil case is now completely over.

The federal court system worked the way it was supposed to in this case, with an appellate court overruling a rogue trial court and the Supreme Court declining to intrude. But the real winner here was still Trump, because he succeeded in delaying the criminal investigation by months even after a search warrant had been executed.

Moreover, the steps that were taken in the Special Master case gave Trump’s team far more details than they normally would have received at this stage of this case—and even allowed them to float various legal defenses and force the Justice Department to reveal their responses.

Disturbingly, Trump’s strategy of using civil litigation to interfere with a criminal investigation may only be echoing Attorney General Merrick Garland’s DOJ approach to the case, which is closer to negotiating in a civil suit than the normal course of prosecuting a criminal case.

DOJ endured months of stonewalling from Trump’s team before finally declaring enough was enough—eventually seeking and executing a search warrant that turned up some 100 classified documents. Despite this confirmation of what would seem to be the worst fears about Trump possessing national security documents, prosecutors then allowed Trump’s team to conduct further searches—that most recently turned up two additional documents in a storage unit leased from the Government Services Administration.

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Showing its frustration with the Trump legal team, DOJ then moved for contempt against Trump for not complying with a grand jury subpoena to produce all the documents, but lost that motion when Chief Judge Beryl Howell of the federal district court in D.C. told both sides to keep working it out. That kind of instruction from a judge is rarely heard in criminal cases, but heard every day in civil cases.

This is a historically extraordinary situation. A former president may be under investigation for having sought to overturn an election and also may face charges for having taken national security documents, yet the Justice Department cannot even get Trump’s legal team to identify a custodian of records who would certify under penalty of perjury that a duly diligent search has been done for any national security and classified documents.

Prosecutors, of course, cannot control whether Trump and his team comply in good faith with grand jury subpoenas and negotiations. But they do control when negotiations end and criminal charges start.

With Judge Cannon’s effort to aid Trump’s defense now set aside, DOJ—now with the addition of Special Counsel Jack Smith—has a clear path to pursuing its investigation. Any further delay will rest on them because prosecutors, not courts or suspects, make criminal charging decisions. That’s the way it should have been from the start of this case.

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