Judge Sides With Trump, Grants Special Master To Review Mar-A-Lago Documents

Topline

A federal judge in Florida sided with former President Donald Trump Thursday in the fight over documents seized from Mar-A-Lago, ordering an independent “special master” to review the documents obtained by the Justice Department, which will likely slow down the investigation into Trump’s actions.

Former President Donald Trump’s Mar-a-Lago resort on February 11 in Palm Beach, Florida.

Getty Images Key Facts

U.S. District Judge Aileen M. Cannon, who was appointed by Trump, ordered a special master to review the White House documents and temporarily blocked the DOJ from reviewing them until the special master’s work is complete, though she did allow the Office of the Director of National Intelligence (ODNI) to continue its review of whether the documents posed a national security risk by being at Mar-A-Lago.

Trump asked the judge to appoint a special master—a court-appointed third party who would review the documents and filter out privileged materials, instead of DOJ officials—on August 22, two weeks after federal officials conducted a search of Mar-A-Lago.

The DOJ argued appointing a special master would be “unnecessary and significantly harm government interests” by slowing down the DOJ investigation, and alleged Trump has no standing to request oversight over the White House documents because they’re the government’s property and not his.

Cannon ruled that the fact some of Trump’s personal property was also seized along with White House documents—as they were stored together—justified a review even if many documents belong to the government, and said if Trump was indicted based on any materials that were actually privileged, it “would result in reputational harm.”

The judge also disagreed with the DOJ’s argument that Trump’s challenge came too late because it had already reviewed the documents and filtered out materials covered under attorney-client privilege, ruling that special masters are more “impartial” than the DOJ’s filter teams and would help add “the appearance of fairness.”

Cannon had previously said in a court filing it was her “preliminary intent” to grant a special master in the case, though that was before the DOJ informed the court it had already reviewed all the documents and identified materials covered by attorney-client privilege, and signaled at a hearing Thursday she was leaning toward siding with Trump.

Crucial Quote

Trump “ultimately may not be entitled to return of much of the seized property or to prevail on his anticipated claims of [executive] privilege. That inquiry remains for another day,” Cannon wrote. “For now, the circumstances surrounding the seizure in this case and the associated need for adequate procedural safeguards are sufficiently compelling to at least get Plaintiff past the courthouse doors.”

Chief Critic

The DOJ has not yet responded to a request for comment, but argued in a court argued in a court filing on Tuesday that the “appointment of a special master would impede the government’s ongoing criminal investigation.” The government also argued the court didn’t have jurisdiction to hear the case and disputed Trump’s attempt to try and shield documents covered by executive privilege, arguing that doesn’t apply when he’s trying to withhold documents from the executive branch itself.

What To Watch For

The court-appointed special master will be tasked with going through the documents the DOJ seized and identifying whether they are shielded by either attorney-client privilege or executive privilege, despite the DOJ’s protestations that shouldn’t apply. That’s likely to slow down the DOJ’s investigation since investigators will be barred from reviewing the documents further until the special master’s search is complete. It’s expected the DOJ will appeal Cannon’s ruling and try to get a higher court to strike down the request for a special master, though the court proceedings will still prolong the agency’s investigation.

What We Don’t Know

Whether Trump will ultimately be charged with a crime. The DOJ has said in past court documents that it’s investigating whether Trump has violated three federal statutes related to the mishandling of government documents and property, including the Espionage Act, which carry potential prison sentences or fines if convicted. A number of legal experts have suggested they believe Trump will be indicted as part of the investigation and the DOJ has said in legal filings it has “developed evidence” that Trump likely took effort “to obstruct the government’s investigation,” which could be a violation of one of the federal statutes. Any possible indictment is unlikely to come soon, however, as the agency’s investigation is still ongoing and federal prosecutors are reportedly unlikely to take any major actions until after the November midterm elections. Trump’s attorneys may also be held legally liable in the investigation, after one of his attorneys—reportedly former One America News anchor Christina Bobb—signed sworn legal documents stating no classified materials remained at Mar-A-Lago in June, which the FBI’s search later proved was false.

Key Background

The FBI searched Mar-A-Lago on August 9 as part of its ongoing investigation into White House documents that Trump carried back to his Florida estate. The search was conducted after the Trump team voluntarily turned over 15 boxes of materials in January and a grand jury subpoena yielded another envelope of documents, but federal investigators ultimately seized a further 33 boxes of materials, including over 100 classified documents, in its August search that the Trump team did not disclose were there. The DOJ has alleged in court filings that classified documents were being held at Mar-A-Lago despite the estate not being authorized to house classified documents, and that despite ordering Trump and his team to store all documents in a secure storage area, materials were found throughout Mar-A-Lago including in Trump’s office. Trump has railed against the FBI search and investigation on social media and alleged he declassified the documents—a claim that his attorneys have not made in court or to federal investigators—but his request for a special master marked the ex-president’s first formal action in court against the ongoing probe.

Further Reading

Trump And His Team ‘Likely Concealed’ Classified Documents, DOJ Filing Alleges (Forbes)

Trump Responds To DOJ: Demands Special Master And Complains About ‘Gratuitously Included’ Photo Of Top Secret Documents (Forbes)

Trump Asks Judge To Appoint ‘Special Master’ To Review Seized Mar-A-Lago Records (Forbes)

Judge considers temporary limit on DOJ access to Trump documents (Politico)