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Will Special Master Dearie Face Carter Page FISA Conflict of Interest?

It would appear that the appointment of Judge Raymond Dearie, made special master for the classified documents investigation, might already be causing headaches for former President Donald Trump.

Despite picking Dearie, who’ll investigate any privilege violations among documents seized by the FBI from Trump’s Mar-a-Lago residence, the former president’s legal team already are resisting a few of the special master’s requests.

In a court filing on Monday, the team argued they must not be likely to disclose additional details round the purported declassification of documents taken by FBI agents from Mar-a-Lago, a move derided by some legal experts.

However, in accordance with some commentators, Dearie might yet face difficulties of their own, connected with his involvement in previous investigations surrounding the former president.

Donald Trump
Former President Donald Trump speaks at a Save America Rally to aid Republican candidates running for state and federal offices in hawaii at the Covelli Centre on September 17, 2022, in Youngstown, Ohio. Commentators think that Trump’s pick for special master may have a conflict of interest, predicated on a study he approved in 2016.Jeff Swensen/Getty Images

Some have suggested that Dearie’s approval in a 2016 investigation of Carter Page, former Trump campaign foreign policy adviser, could present a conflict of interest and prematurely end his overview of the Mar-a-Lago documents.

Dearie approved federal investigators’ request to research Page within the inquiry into Russia interference in the 2016 presidential election.

Investigative journalist Scott Stedman, in a tweet posted on September 16, suggested that “there’s likely to be considered a huge problem if the Trump docs are the Page FISA. Dearie then includes a big conflict of interest and likely can’t continue.”

Similar comments were repeated elsewhere on the social media marketing platform.

I see possible perceived conflict if Dearie reviews a doc containing intel from the FISA he approved. It wont be readily apparent from the doc but he could recognize the topic matter. Unsure if risk assessment would flag this yet, if. Neutral/objective challenge by Trump?

Frank Figliuzzi (@FrankFigliuzzi1) September 17, 2022

So, could the Foreign Intelligence Surveillance Act (FISA) investigation of Page derail Dearie’s involvement as special master?

First, we have no idea if the Page FISA records are in Mar-a-Lago. That is entirely speculative and is apparently spurred by just Dearie’s appointment.

As the FBI Mar-a-Lago affidavit revealed that documents bought at Mar-a-Lago included FISA papers, that’s not a smoking gun for documents linked to the Page investigation.

To supply some context, the investigation into Page’s Russia connections occurred while Trump was still president, amid a continuing FBI investigation into Trump’s connections with Russia.

The Mueller report, published in 2019, figured the investigation hadn’t established “that Page coordinated with the Russian government in its efforts to hinder the 2016 presidential election.”

Although Justice Department in 2019 determined the final two of four FISA warrants to surveil Page were invalid, Page’s resulting lawsuit contrary to the Justice Department was dismissed by way of a federal judge in September.

On the facial skin of it, it appears that even if there have been Page FISA records on the list of documents at Mar-a-Lago, Dearie is merely being asked to guage if the documents recovered as a result attract certain privileges.

Dearie is defined to wade through a large number of pages, then report back again to Judge Aileen Cannon, and state whether the documents violated privileges that Trump’s defense has inquired about.

So, not merely do we not know whether you can find even any documents linked to the Page FISA warrant, it generally does not appear that Dearie would, as special master, have even to face the chance of a conflict of interest.

Jimmy Gurul, professor of law at the Notre Dame Law School and a former federal prosecutor, told Newsweek: “Any claim of a conflict of interest is highly speculative and overstated at this stage.

“Unless I’m missing something, I have no idea why Judge Dearie’s approval of the Page FISA warrant would develop a conflict of interest as well as an appearance of a conflict of interest he cannot impartially determine whether documents seized at Mar-a-Lago fall within the attorney-client or executive privilege.”

Judge Raymond Dearie special master
NY Judge Raymond Dearie has been appointed special master to examine the documents seized from former President Donald Trump’s Mar-a-Lago residence in Florida, shown on September 14, 2022. Joe Raedle/Getty Images

Robert Fisher, somebody at lawyer Nixon Peabody with about 16 years of experience in federal and state prosecution, told Newsweek that even though Page FISA warrant was classified, there didn’t look like a connection between that and the purported privilege that Dearie is investigating.

“If you are asking the judge to weigh on if the Carter Page FISA warrant was justified and met the standards then, OK, that could be a conflict issue,” Fisher said.

“But here, he’s only deciding whether there’s a lawyer client privilege on the documents, and then the DOJ can’t see them, or whether there’s some form of executive privilege, basically, whether you can find government materials, personal materials.

“Now, he [Dearie] could be alert to the Carter Page investigation, he signed off on the FISA warrant, but if he sees among those documents which may be highly relevant to the Carter Page investigation I don’t observe how his having allowed the FISA warrant will impact his decision on whether they’re government documents or personal documents or what privileges apply. I simply don’t start to see the connection.”

Fisher, who has expertise in government investigations and white collar defense practice, added that while there may be certain privileges mounted on documents linked to the FISA warrant for some reason, Dearie would conclude on those matters only, “not the underlying facts of the Carter Page investigation (and) whether that has been meritorious or not.”

Any risk to guage Dearie’s appointment, Fisher argued, “could be less of a complete legal issue and much more of an optics issue.

“You need the general public to be reassured that a particular master involved with this is completely objective and neutral, and in the eyes of the general public, particularly those who are defenders of President Trump, will they be confident that special master was neutral?

“From an optics perspective, not? Maybe they don’t, they’ll say, ‘Well, guess what happens, he was involved with that. We don’t believe that has been legitimate, and for that reason he can’t be objective and neutral in this matter.'”

Needless to say, opponents would counter that it had been Trump’s representatives that picked Dearie as special master, despite his involvement with the Page case.

trump fani willis Georgia
Former U.S. President Donald Trump speaks at the Conservative Political Action Conference on August 6, 2022, in Dallas, Texas. Brandon Bell/Getty Images

Gene Rossi, a former federal prosecutor with almost 30 years of experience, echoed this and added what he saw as Dearie’s capability.

“The Trump folks have asked for Judge Dearie and I cannot think about an improved person to become a special master in cases like this than Judge Dearie,” Rossi said.

“He’s a former federal prosecutor, he’s a former U.S. Attorney, he’s been a judge for many years, he’s got incredible judicial temperament no you can question his moral compass and his integrity. So for the Department of Justice, Judge Dearie may be the perfect choice to become a special master.”

As the possibility can’t be eliminated that Trump’s legal team might improve the FISA case as a potential conflict of interest and demand the judge’s removal later on, there is absolutely no evidence right now to suggest this is actually the direction they’ll take.

Instead, the defense has signaled Tuesday that it could already be finding your way through a potential indictment.

Trump’s attorneys have argued that submitting a draft plan concerning the declassification of documents to the special master would force them to reveal their defense against any indictments that may be issued at a later point, an implicit acknowledgement that the investigation you could end up an indictment.

“The Special Master process could have forced the Plaintiff to totally and specifically disclose a defense to the merits of any subsequent indictment without this type of requirement being evident in the District Court’s order,” the letter read.

Newsweek reached out to Trump for comment.

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