Judge to issue written ruling on Trump special-master request

The Washington Post / Perry Stein / Devlin Barrett

14:46 JST, September 2, 2022

WEST PALM BEACH, Fla. – A federal judge seemed sympathetic to arguments presented by Donald Trump’s attorneys in a courtroom Thursday that the former president may retain some executive privileges after he left the White House.

But U.S. District Judge Aileen M. Cannon did not issue a ruling from the bench on whether she would grant the legal team’s request to appoint a special master to review material seized from Trump’s Mar-a-Lago residence and club, instead saying she would deliver a written decision in “due course.”

Cannon also said she would unseal a more detailed inventory list of the documents and other materials that FBI agents seized from Mar-a-Lago on Aug. 8. Both the Justice Department and Trump’s lawyers have agreed that the information can be made public, potentially shedding light on what Trump kept in his possession after returning 15 boxes from Mar-a-Lago in January and responding to a May grand jury subpoena requesting additional presidential records.

At a hearing Thursday afternoon, a newly hired Trump lawyer told Cannon that the appointment of a special master – essentially an independent outside expert – would bring down the “very high” temperature around the FBI’s investigation into possible mishandling of classified documents.

“We need to take a deep breath,” said Chris Kise, a former Florida solicitor general who left his law firm this week and entered into a multimillion-dollar deal to join Trump’s legal team, according to people familiar with the arrangement who spoke on the condition of anonymity to discuss it.

Jay Bratt, a senior Justice Department counterintelligence official, told Cannon that Trump was not entitled to a special master, emphasizing that the issue in the case is the possible hiding of highly sensitive government secrets in a private residence.

Trump “is no longer the president, and because he is no longer the president, he did not have the right to take those documents,” Bratt said.

Justice Department officials also told Cannon that their filter team had done a thorough review of the material, and it had set aside 64 sets of documents – made up of some 520 pages – that might be considered protected by attorney-client privilege.

Trump’s lawyers have argued that a special master should review the seized papers for possible claims of executive privilege. Traditionally, executive privilege is used to prevent private presidential discussions from being shared with other branches of the government; it’s unclear how or if such a claim by Trump’s advisers would apply to a former president trying to keep information from the executive branch.

Jim Trusty, another of the former president’s attorneys who argued in court, portrayed the investigation as overblown, comparing it to an “overdue library book scenario” that wrongly escalated into a criminal investigation.

Cannon, who over the weekend indicated she was inclined to appoint a special master, appeared open to the argument from Trump’s legal team that he retained at least some executive privilege after he left the White House.

“I don’t think it’s as cut and dry as you suggest,” she said to Justice Department attorney Julie Edelstein, who argued that none of the seized documents would be protected by executive privilege.

Cannon played out some scenarios from the bench of how the special-master review process could work. In one, she said, Justice Department lawyers would stop reviewing the documents, allowing a special master to step in. Under that scenario, she said, she could allow the Office of the Director of National Intelligence to continue its ongoing assessment of the national security risk of each recovered document.

For the moment, however, prosecutors’ review of the documents can continue.

Prosecutors made similar arguments in court as those in a blistering filing on Tuesday. The filing alleged that Trump and his advisers repeatedly failed to turn over highly classified government documents, leading to the FBI raid that found more than 100 additional classified items.

Trump’s team argued in its own legal filing that the government seized documents that it has no right to take and accused the Justice Department of acting politically, noting that Trump may well run for president again in 2024, potentially against President Biden.

The team said in court Thursday that Justice Department lawyers have been cherry-picking certain court documents to be unsealed to benefit their case. They called on the Justice Department to show the full, unredacted affidavit in support of the search warrant – even if it’s not released to the public.

The affidavit, which was released last week in heavily redacted form, lays out the FBI’s rationale for believing crimes may have been committed at Mar-a-Lago. It probably contains sensitive details on witnesses and evidence that are central to the investigation. It would be extremely unusual for such a document to be shown to the parties targeted by a search warrant while a criminal probe is underway.

The Trump team made the request for a special master about two weeks after the FBI searched Mar-a-Lago.

At the hearing, Cannon asked the lawyers why it took so long for them to file the request. Trusty said he could not disclose all the reasons for the delay, but he said the team, in part, had hoped that they could reach an agreement with the Justice Department on the issue before asking the court.

Bratt responded that the lawyers asked the Justice Department for a special master the day after the Aug. 8 search. He said the government declined.

Two days after the search, Bratt said, prosecutors informed Trump’s lawyers that the filter team had started examining the documents and the review would last around two weeks.