In a legal victory for former US President Donald Trump, a federal judge on Monday granted his request for a special master to review documents seized by the FBI from his Florida home and also temporarily halted the Department of Justice’s own use of the records for investigative purposes.
U.S. District Judge Aileen Cannon’s decision authorizes an outside expert to review records taken during the Aug. 8 search and to eliminate from the rest of the investigation anyone who may be protected by claims of attorney-at-law privilege. client or executive privilege. Some of those records may eventually be returned to him, but the judge deferred a decision on the matter.
The order came despite witty objections from the Justice Department, which said an outside legal expert was not needed, in part because officials had already completed their review of potentially privileged documents. The department said Monday it was reviewing the decision, but did not say if or when it might appeal.
The order will almost certainly slow the pace of the department’s investigation into the presence of top-secret information at Mar-a-Lago, especially given the judge’s directive that, for now, the Justice Department cannot use none of the materials seized as part of its investigation into the illegal storage of government secrets at the Florida property. That court order is in effect until the special master who has not yet been appointed completes his work, “or further court order.”
“The Court is mindful that the restraints of criminal proceedings are disfavored, but finds that these unprecedented circumstances require a brief pause to allow neutral third-party review to ensure a fair trial with adequate safeguards,” wrote Cannon, an appointee for Trump in its order of 24 pages.
Pages from the FBI’s affidavit in support of obtaining a search warrant for Trump’s Mar-a-Lago estate. (Jon Elswick/The Associated Press)
Seized material includes medical documents, tax correspondence
However, it is not clear that the decision will have a significant effect on any investigative or charging decision or the final outcome of the investigation. A separate assessment by the US intelligence community of the risk posed by the apparent mishandling of classified records will continue under the judge’s order.
“While this is a victory for the former president, it is by no means a landslide victory for him,” David Weinstein, a Florida criminal defense attorney and former Justice Department prosecutor, said in an email . “While it’s a setback for the government, it’s also not a devastating loss for them.”
He noted, for example, that the judge did not immediately order the seized documents returned to Trump or suppress any of the evidence.
Justice Department spokesman Anthony Coley said Monday that “the United States is reviewing the opinion and will consider appropriate next steps in the ongoing litigation.” A lawyer for Trump did not immediately respond to a request for comment.
The department and Trump’s lawyers are due to present a list of proposed special nominees on Friday.
In August, FBI agents seized approximately 11,000 documents and 1,800 other items from Mar-a-Lago as part of a criminal investigation into the retention of national defense information there, as well as efforts to obstruct the investigation. About 100 of the documents contained classification marks.
Trump’s lawyers had argued that a special master, usually an outside attorney or former judge, was needed to ensure an independent review of records collected during the search. That review was necessary, they said, so that any personal information or documents recovered by the FBI could be leaked and returned to Trump and so that any documents protected by privilege could also be segregated from the rest of the investigation.
In that case, the seized records “include medical documents, tax-related correspondence and accounting information,” according to the judge’s order.
The judge said it was too early to tell whether any of the records will be returned to Trump, but “at this time, the circumstances surrounding the seizure in this case and the associated need for adequate procedural safeguards are compelling enough to at least overcome the plaintiff. the doors of the court.”
This image contained in a Justice Department court document, and redacted in part by the FBI, shows a photo of documents seized during the Aug. 8 search. (Department of Justice/Associated Press)
Judge rules seizure stigma in ‘a league of its own’
While Cannon did not order the Justice Department to immediately return any of the seized documents to Trump, he said he found persuasive his lawyers’ arguments that he faced “potentially irreparable injury” by denying him access to documents that could be of significant personal interest to him. He said the investigative process, so far, had “shut him down”.
“Based on plaintiff’s former position as President of the United States, the stigma associated with taking the subject is in a league of its own,” Cannon wrote. “A future prosecution, based to any degree on the property that should be returned, would result in reputational damage of a decidedly different order of magnitude.”
The Justice Department had argued against the appointment, saying it was unnecessary because it had already reviewed potentially privileged documents and identified a limited subset of materials that might be covered by attorney-client privilege.
- LOOK | What are the implications of the judge’s decision?
Judge grants Trump’s request for special master to review seized documents
A US judge has granted former President Donald Trump’s request to appoint a special master to review documents that were seized by the Justice Department from Mar-a-Lago in Palm Beach, Florida, last month.
The department had been using a separate “privilege review team” for that work, but Cannon cited at least two instances where investigative team members were “exposed” to potentially privileged material, which he said which raised questions about the adequacy of the process. .
The department had also said that Trump was not entitled to the return of any of the presidential records that were taken since he is no longer president and therefore the documents do not belong to him. And the personal items that were recovered were combined with classified information, giving them potential value as evidence, the department said.
Although prosecutors had argued that Trump, as a former president, had no legal basis to claim executive privilege over the documents, the judge said he was entitled to raise that concern and allowed the special master would search for records that might be covered. for this privilege.
“The main sticking point, I think, is that the executive privilege documents were included” in the judge’s decision, said Richard Serafini, a Florida criminal defense attorney and former Justice Department prosecutor. He said he expected the department to appeal the order.
Cannon, who was nominated to the bench by Trump in 2020, had signaled in a brief order last month that she was inclined to appoint a special master and did so again during arguments last week, at one point questioning given: “Ultimately, what is the harm in appointing a special master to resolve these issues without creating undue delay?”