Judge Grants Trump’s Request for Special Master to Review Mar-a-Lago Documents

A federal judge intervened on Monday in the investigation of former President Donald J. Trump’s handling of sensitive government records, ordering the appointment of an independent arbiter to review a trove of materials seized last month from Mr. Trump’s private club and residence in Florida.

The judge, Aileen M. Cannon of the Federal 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 Mr. 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.

While the order may ultimately serve only to delay the criminal inquiry into Mr. Trump, the scope and candor of Judge 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 Mr. Trump be treated like any other investigative subject.

Indeed, in her order, issued on the Labor Day holiday, Judge Cannon said she had 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 Mr. Trump’s favor, but a department spokesman, Anthony Coley, demurred on 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.

Any appeal of Judge Cannon’s ruling would be heard by a three-judge panel from the United States Court of Appeals for the 11th Circuit in Atlanta. Of its 11 active judges, six were appointed by Mr. Trump.

Judge Cannon, who was appointed by Mr. Trump in 2020, granted the special master wide-ranging authority to review the more than 11,000 documents carted away from Mar-a-Lago by the F.B.I. on Aug. 8, some of which bore markings labeling them as highly classified. Her ruling 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.

After trying for months to get the documents back from Mr. Trump, the National Archives, the agency that safeguards presidential records, told his lawyers in a letter in May that both the Justice Department and the Biden White House did not believe the former president’s executive privilege claims had merit.

“The question in this case is not a close one,” the archives wrote.

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 Mr. 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 Judge Cannon, who was appointed by Mr. 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, Judge Cannon evinced concern that Mr. 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 Mr. 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,” Judge 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, Mr. Trump faced “unquantifiable potential harm by way of improper disclosure of sensitive information to the public.”

Such statements flew in the face of the Justice Department’s repeated assertions that in investigating Mr. 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 Mr. Trump for now, it remained unclear how it 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. Judge Cannon will first need to appoint someone to perform the job of special master. Then that person will have to conduct a review of a large trove of documents and decide if any are protected either by attorney-client or executive privilege.

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

Even then, there could be further legal action. Mr. 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.

In the ruling, Judge Cannon offered a few new details about the search itself. She noted, for example, that among the government records seized by the F.B.I., agents found some of Mr. Trump’s “medical documents, correspondence related to taxes and accounting information.” The warrant for the search of Mar-a-Lago authorized the F.B.I. to remove any boxes that contained government documents even if items of a more personal nature were discovered among them.

Judge Cannon noted, in fact, that Mr. Trump’s personal items were identified and set aside by a so-called filter team of federal agents walled off from the team investigating Mr. Trump. Still, in her order, she cast doubt on the work of the filter team, saying, without giving specifics, that in two instances, materials that should have been identified as privileged ended up in the hands of prosecutors.

Judge Cannon also said that the sheer amount of material seized from Mar-a-Lago justified naming a special master, adding that she alone was not equipped to pore over more than 10,000 pages of documents to determine what should be part of the government’s investigation and what should not.

“Considering the volume of seized materials and the parties’ expressed desire for swift resolution of this matter,” Judge Cannon wrote, “a special master would be better suited than this court to conduct the review.”



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