U.S. District Judge Aileen Cannon has granted former President Donald Trump’s request for a special master to review the over 10,000 government records seized by the FBI during their search of his Mar-a-Lago estate in Florida.
The West Palm Beach judge’s move has elicited protest from Trump’s political opponents, as the appointment of a special master — an independent third party who is sometimes assigned in sensitive cases to review materials that could be covered by attorney-client privilege — will delay progress of the case.
Cannon also ordered the Justice Department to stop reviewing the records as part of its criminal investigation, a move that will likely at least temporarily hinder its ability to continue investigating.
Trump is being probed by the Justice Department for removing government records, some of which were marked as highly classified, from the White House after he departed in January 2021, and storing them in his home at his Mar-a-Lago estate in Palm Beach.
Trump kept the Oval Office tidy, but would work from the dining room connected to it, and a small storm of paperwork often followed him wherever he went, aides and advisers said.
He would take boxes of materials on Air Force One flights with him, and sign official papers, autograph notes to friends and colleagues – and then pack it all back into a box at the end of the trip, they said.
Trump and his advisers have argued that the president has the constitutional power to declassify any record he wants and legally can take personal copies of his records.
In her ruling on Monday, Sept. 5, Cannon said she has lingering concerns about how the Justice Department has conducted its privilege review, saying she was aware of at least two instances in which members of the investigative team were exposed to materials which were later designated as potentially privileged.
After hearing arguments from Trump’s lawyers and government attorneys, Cannon wrote in her order that Trump faces “an unquantifiable potential harm by way of improper disclosure of sensitive information to the public.”
“Further, [Trump] is at risk of suffering injury from the Government’s retention and potential use of privileged materials in the course of a process that, thus far, has been closed off” to the former president, and “has raised at least some concerns as to its efficacy, even if inadvertently so,” she added.
FBI agents seized records, notes, and other items from Trump’s Mar-a-Lago resort in Palm Beach, Florida, on Aug. 8.
The FBI first seized the trove of documents from Mar-a-Lago on Aug. 8. But according to Cannon, she agreed with Trumps’ legal request in part because the U.S. government filter was obligated to identify potentially privileged items yet failed to do so.
“Those instances alone,” she believes, may have been inadvertent, but still “yield questions about the adequacy of the filter review process,” the judge said.
Cannon said the special master will be tasked with reviewing documents that are not just covered by attorney-client privilege, but any records possibly covered by executive privilege as well.
Attorney-client privilege is the right for communications between a client and his or her legal team to be kept confidential.
Cannon, who was appointed by Trump in 2020 just months before he left office, rejected the government’s argument that the records belong to the government and that Trump is no longer president and therefore cannot claim executive privilege.
She gave Trump’s legal team and the Justice Department until Friday to jointly file a proposed list of special master candidates. Whomever the court ultimately taps will need to have the requisite security clearances and legal expertise.
The decision to allow a special master to review documents that could be covered by executive privilege, a legal doctrine that can shield some White House records from disclosure, is uncharted legal territory.
If the special master decides some of the material is covered by Trump’s executive privilege claims, it could hamper the government’s investigation.
However, Cannon said U.S. intelligence officials could continue conducting their review into whether the records could pose any damage to national security if exposed.
It is unclear whether the Justice Department will appeal Cannon’s ruling, or on what basis it would do so.
Check on government
Trump’s lawyers argued that the appointment of an independent third-party to review the materials would be an important check on the government, while other political figures have voiced their objection to the special master.
“Remember, it takes courage and ‘guts’ to fight a totally corrupt Department of ‘Justice’ and the FBI,” Trump wrote on his social media platform Truth Social, following Cannon’s ruling.
The judge said she was aware of at least two instances in which members of the investigative team were exposed to materials which were later designated as potentially privileged, but the Justice Department argued that the filter team — government agents who are not a part of the investigation — had done their work.
Prosecutors said in a Sept. 1 hearing that the agents had set aside some 520 pages of documents that could be subject to attorney-client privilege.
“I don’t think a special master makes sense in connection with executive privilege material,” former Attorney General Bill Barr, a Trump appointee, told Reuters in an interview. “If the documents are subject to executive privilege they involve official deliberations about executive actions, and by definition, those documents belong to the government.”
Trump and his supporters argue that his case has been subject to heavy politicization and was an attempt to prevent his return to the White House by the “vicious monsters” of the FBI and Justice Department, “controlled by radical left scoundrels, lawyers and the media who tell them what to do.”
“”The 2020 election was rigged and stolen and now our country is being destroyed by people who got into office through cheating and through fraud,” he said at a Pennsylvania rally on Sept. 3. “They talk about documents not being properly stored yet they go in and take documents, dump them on the floor, stage a photoshoot and pretend that I had done it like I had put them all over the floor.”
“The radical Democrats are engaging in a desperate attempt to keep me from returning to the White House where they know I will clean this mess up again,” he told the audience.
Reuters contributed to this report.