Judge grants request by Trump for review; special master to examine seized material

A page from the order granting a request by former President Donald Trump's legal team to appoint a special master to review documents seized by the FBI during a search of his Mar-a-Lago estate is photographed Monday, Sept. 5, 2022. The decision by U.S. District Judge Aileen Cannon came despite the objections of the Justice Department, which said an outside legal expert was not necessary in part because officials had already completed their review of potentially privileged documents. (AP Photo/Jon Elswick)
A page from the order granting a request by former President Donald Trump's legal team to appoint a special master to review documents seized by the FBI during a search of his Mar-a-Lago estate is photographed Monday, Sept. 5, 2022. The decision by U.S. District Judge Aileen Cannon came despite the objections of the Justice Department, which said an outside legal expert was not necessary in part because officials had already completed their review of potentially privileged documents. (AP Photo/Jon Elswick)

A federal judge intervened Monday in the investigation of former President Donald Trump's handling of sensitive government records, ordering the appointment of an independent arbiter to review for attorney-client or executive privilege a trove of materials seized last month from Trump's private club and residence in Florida.

The judge, Aileen Cannon of the U.S. District Court for the Southern District of Florida, also temporarily barred the Justice Department from using the seized materials for any "investigative purpose" connected to its inquiry of Trump until the work of the arbiter, known as a special master, was completed.

The order would prevent, at least for now, federal prosecutors from using key pieces of evidence as they continue to investigate whether the former president illegally retained national defense documents at his estate, Mar-a-Lago, or obstructed the government's repeated efforts to get them back. Some of the seized records may ultimately be returned to Trump, but the judge put off a ruling on that question.

While the order may ultimately serve only to delay the criminal inquiry into Trump, the scope and candor of Cannon's language and reasoning pointed to broader themes. Her ruling seemed to carve out a special exception to the normal legal process for the former president and reject the Justice Department's implicit argument that Trump should be treated like any other investigative subject.

In her order, issued on the Labor Day holiday, Cannon said she made her decisions "to ensure at least the appearance of fairness and integrity under the extraordinary circumstances." Her order would not, however, affect a separate review of the documents by the Office of the Director of National Intelligence seeking to determine what risk to national security their removal to Mar-a-Lago may have caused.

Justice Department officials last week had discussed the possibility of an appeal if the judge ruled in Trump's favor, but a department spokesperson, Anthony Coley, demurred Monday when asked how it would respond.

"The United States is examining the opinion and will consider appropriate next steps in the ongoing litigation," he said.


Representatives for Trump did not immediately respond to requests for comment.

WHAT'S AHEAD

Legal experts noted that the Justice Department can still interview witnesses, use other evidence and present information to a grand jury while the special master examines the seized material.

"While this is a victory for the former President, it is by no means an overwhelming win for him," David Weinstein, a Florida criminal defense lawyer and former Justice Department prosecutor, said in an email. "While it is a setback for the government, it is also not a devastating loss for them."

He noted, for instance, that the judge did not immediately order the seized documents returned to Trump or suppress any of the evidence. Weinstein said the special master would sort through the materials and set aside items that person thinks could be protected. Cannon could then ultimately decide that some or none of it is protected.

"What this says is, 'I'm putting the brakes on this. I'm putting a pause on this,'" Weinstein said. "It may come out as a big loss for the former president."

Richard Serafini, a South Florida criminal defense attorney and a former Justice Department criminal division attorney, said the judge's ruling could complicate the government's argument that Trump cannot invoke any executive privilege.

"Potentially it is a big deal," he said. "It seems to recognize that a former president has a possessory interest in terms of documents."

Any appeal of Cannon's ruling would be heard by a three-judge panel from the 11th U.S. Circuit Court of Appeals in Atlanta. Of its 11 active judges, six were appointed by Trump.

U.S. ARGUMENTS

Cannon's ruling granted the special master wide-ranging authority to review the more than 11,000 documents carted away from Mar-a-Lago by the FBI on Aug. 8, some of which bore markings labeling them as highly classified. It permitted whoever is appointed to the job to evaluate the documents not only for those protected by attorney-client privilege, a relatively common measure, but also for those potentially shielded by executive privilege, which typically protects confidential internal executive branch deliberations.

At a hearing last week concerning the question, the Justice Department argued that allowing a special master to conduct an executive privilege review of the seized material would be "unprecedented" and legally baseless since the department itself is part of the current executive branch and Trump is no longer in office.

"There is no role for a special master to play in executive privilege," Julie Edelstein, a lawyer for the department, said during the hearing.

But Cannon, who was appointed by Trump, clearly disagreed with the Justice Department, writing in the order that she was "not convinced" of the government's categorical assertion that executive privilege did not apply in this context. She added that she thought the department's position "arguably overstates the law" and that setting aside any documents that could be shielded by executive privilege as the legal issues in the case are sorted out made sense.

"Even if any assertion of executive privilege by plaintiff ultimately fails in this context, that possibility, even if likely, does not negate a former president's ability to raise the privilege as an initial matter," she wrote.

In her order, Cannon evinced concern that Trump might suffer "reputational harm" from a search that was not conducted properly -- or, as she added, from "a future indictment" that was based even in part on "property that ought to be returned."

She noted that the inquiry of Trump needed to be undertaken with particular care and deference, placing him in his own category.

"As a function of plaintiff's former position as president of the United States," Cannon wrote, "the stigma associated with the subject seizure is in a league of its own." She also noted that, because of the search of Mar-a-Lago, Trump faced "unquantifiable potential harm by way of improper disclosure of sensitive information to the public."

The Justice Department has repeatedly asserted that in investigating Trump, it would follow the facts and the law, just as it would during an inquiry into any other person.

Even though her ruling specifically forbade the Justice Department from using the trove of materials seized from Mar-a-Lago in its investigation of Trump for now, it remained unclear how the ruling would affect other means prosecutors might use to pursue the investigation. On Friday, in a court filing disclosed along with a detailed inventory of the items taken during the search, prosecutors said the documents inquiry remained an "active criminal investigation" that could involve "further investigative steps" -- among them, "additional witness interviews and grand jury practice."

Still, the ruling, which will require several time-consuming steps, will almost certainly slow down the investigation. Cannon will first need to appoint someone to perform the job of special master. Then that person will conduct a review of a large trove of documents and decide if any are protected either by attorney-client privilege or executive privilege.

Cannon ordered the Justice Department and lawyers for Trump to send her by Friday a list of potential candidates for the special master job and suggestions for what powers the position would hold.

Even then, there could be further legal action. Trump's lawyers have said they want to identify the privileged items, in part as a precursor to filing a broad legal challenge to the search under the Fourth Amendment, which guards against unreasonable searches and seizures.

Trump's lawyers had argued that a special master, usually an outside lawyer or former judge, was necessary to ensure an independent review of records taken during the search and so that any personal information or documents could be filtered out and returned to Trump.

In this case, the seized records "include medical documents, correspondence related to taxes, and accounting information," the judge's order said.

Trump's lawyers have also said a review by a special master would boost "trust" in the Justice Department's criminal investigation into possible mishandling of classified documents after Trump left the White House.

Information for this article was contributed by Alan Feuer, Glenn Thrush and Charlie Savage of The New York Times; by Eric Tucker of The Associated Press; and by Perry Stein of The Washington Post.


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