‘Where’s the beef’? Judge Dearie skeptical of Trump privilege claims

The senior federal judge appointed at former President Trump’s suggestion to review privilege claims pertaining to documents seized by the FBI from Trump’s Mar-a-Lago estate has pressed his lawyers to better explain their privilege assertions.

“What’s the expression — ‘Where’s the beef’?” Judge Raymond Dearie asked Trump attorney Jim Trusty. “I need some beef.” The special master was complaining that, in claiming that various documents should be withheld from prosecutors on grounds of, mainly, the attorney-client privilege, counsel had not provided a plausible explanation of why the privilege applied.

Dearie also observed that the Trump team had grossly overstated the volume of documents potentially subject to the special-master review. The lawyers had claimed the 11,000-plus documents comprised about 200,000 pages. In fact, the page-count is 21,792 — a little over 10 percent of the Trump estimate.

Notably, the issues Dearie raised do not relate to the main work that the presiding judge who appointed him, Judge Aileen Cannon, anticipated that he would do. Rather, only a small subset is involved. These are the approximate 600 documents that the Justice Department’s so-called “taint team” set aside immediately after the FBI conducted the court-authorized Mar-a-Lago search.

When it is anticipated that a search may yield a significant amount of privileged information, the Justice Department employs a prophylactic process. A team of government lawyers who are not involved in the underlying criminal investigation makes a first pass through the seized materials before the investigative team is given access. The taint team segregates any document that potentially could be subject to a claim of attorney-client privilege, and then the investigative team is given only the seizures that are not arguably privileged. 

When it sought the Mar-a-Lago search warrant, the Justice Department proposed to employ this process, and it was authorized by Magistrate Judge Bruce Reinhart, who approved the warrant.

Thereafter, the taint team shares the potentially privileged documents with counsel for the person from whom they have been seized so that the person has an opportunity to invoke the privilege. Each document for which privilege is invoked is separately examined. If the Justice Department agrees that a particular document should be deemed privileged, it is not shared with the investigative team; if the Justice Department disagrees, then the dispute is litigated: Attorneys for the invoking person explain why they believe the document is shielded by privilege, the government’s taint team explains its opposition, and the court rules.

Following the search, the government represented that the taint team, in an abundance of caution, had been over-inclusive. It deemed as potentially privileged any document that appeared to be correspondence involving a lawyer, or that referenced a lawyer.

The proceedings ongoing before Judge Dearie bear out that the government was indeed overly inclusive. Attorney-client privilege applies only to confidential communications between a lawyer and the client that are for the purpose of legal advice. Generally, then, if third parties who are not agents of the lawyer are part of the discussion, the privilege does not apply because the communication is not confidential. And if the communication is not about legal advice, the privilege is obviously inapplicable. As Judge Dearie conducts his review, what is emerging is that many of the documents the taint team withheld from the investigative team do not appear to be privileged.

Rather than explain why Trump claims privilege regarding any particular document, his lawyers want to rely on his mere invocation, coupled with the fact that the government’s taint team segregated the document as potentially privileged. That’s not good enough. Hence, Dearie’s question: Where’s the beef? He expects the Trump team to articulate, with respect to each privilege claim, the grounds for the claim.

This is worth observing because at issue here are only the documents that the Justice Department conceded might be grounds for a privilege claim. Even with respect to these, the Trump team is having trouble positing persuasive claims.

By contrast, regarding most of the documents (well over 10,000), the government adamantly contends that there are no plausible privilege claims. Those documents, the Justice Department says, are government records, not communications between Trump and his private counsel. Consequently, they are not subject to attorney-client privilege.

Moreover, to the extent that Trump continues to claim executive privilege, the Justice Department counters that Trump, as a former president, may not assert executive privilege against agencies of the incumbent executive branch. Executive privilege belongs to the executive branch, for the purpose of protecting executive functions; it does not belong to an individual who happens to have been president and who seeks to invoke the privilege to undermine executive functions.

It is likely that Judge Dearie never will be called upon to broker that dispute. Judge Cannon’s decision to grant a special master is controversial. Ruling in favor of the Justice Department’s motion to stay Cannon’s decision insofar as it pertained to the approximately 100 classified documents that were seized, the Eleventh Circuit Court of Appeals reasoned that Cannon lacked jurisdiction to grant a special master. Now, the government is appealing the entirety of Cannon’s decision. If the Eleventh Circuit rules in a manner consistent with the reasoning of its earlier decision, the special-master process would likely be aborted.

In the interim, even with respect to the smaller category of documents that the government’s taint team segregated, Dearie is demanding that the Trump team explain itself. It is unlikely that the lawyers will be able to do this to the judge’s satisfaction. Extravagant claims of privilege, said to warrant a special master appointment, have dominated coverage of the Mar-a-Lago search for more than two months. In all probability, though, they’ve been a red herring.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, a Fox News contributor and the author of several books, including “Willful Blindness: A Memoir of the Jihad.” Follow him on Twitter @AndrewCMcCarthy.