Special master to Trump’s lawyers: ‘You can't have your cake and eat it too’

NEW YORK — The senior federal judge tasked with reviewing the materials seized by the FBI from Donald Trump’s Mar-a-Lago estate sharply questioned the former president’s attorneys Tuesday during their first hearing before his courtroom.

Judge Raymond Dearie pushed Trump’s lawyers repeatedly for refusing to back up the former president’s claim that he declassified the highly sensitive national security-related records discovered in his residence.

“You can't have your cake and eat it,” said Dearie, the “special master” picked by U.S. District Court Judge Aileen Cannon to vet Trump’s effort to reclaim the materials taken by federal investigators.

Trump has argued that the 11,000 documents taken from Mar-a-Lago were rightfully in his possession, including about 100 bearing classification markings that suggest they contain some of the nation’s most closely guarded intelligence.

But Dearie bristled at the effort by Trump’s lawyers to resist his request for proof that Trump actually attempted to declassify any of the 100 documents that the Justice Department recovered from his estate. Without evidence from Trump, Dearie said his only basis to judge the classification level of the records was the fact that they all bear markings designating them as highly sensitive national security secrets — including some that indicate they contain intelligence derived from human sources and foreign intercepts.

The early tension between Dearie and Trump’s legal team was an ominous sign for the former president, who demanded the special master review the documents taken from Mar-a-Lago and who proposed Dearie — a 1986 appointee of Ronald Reagan — to perform the task. Prosecutors had offered two other names, but acceded to Trump’s choice of Dearie.

Trump’s legal team entered the Brooklyn courthouse about a half hour before the hearing, braving jeers from a smattering of protesters, including one shouting, “Indict Trump!”

A more subdued atmosphere prevailed inside Dearie’s courtroom. Members of the press were seated in the jury box, prompting one of Trump’s attorneys to joke before the session got underway that the former president’s team had not agreed to this set of jurors.

Dearie, 78, engaged succinctly with the parties during the 40-minute session. He noted that the current litigation filed by Trump is civil in nature, since no criminal charges have been filed, so the burden of proof is on Trump to back up any assertion of privilege or other protected interest in the documents.

Trump's lawyers asked Dearie to set in motion the process of getting security clearances so they can review the allegedly classified documents.

But prosecutor Julie Edelstein told the judge that some of the records involved are so sensitive that members of the government's investigative team still haven't been approved to the documents.

Whether any of the records seized from Trump’s home are classified may ultimately be a side issue. The Justice Department has emphasized that the three potential crimes it is investigating don’t hinge on whether the material held at Mar-a-Lago was classified.

Still, Dearie’s comments on classification of the records were particularly notable in light of a separate court filing by Trump, who is urging a federal appeals court to keep in place Cannon’s order blocking the Justice Department from advancing its criminal investigation into the seized records.

In that filing, Trump’s attorneys argued that it was the Justice Department — not Trump — that bore the burden of showing the documents seized last month were classified. Dearie rejected that argument in his courtroom, saying that all that mattered were the markings on the documents.