Former U.S. President Donald Trump’s residence at Mar-A-Lago, in Palm Beach, Florida, was photographed on August 9, 2022. (Photo by Giorgio Viera/AFP via Getty Images.)
Federal prosecutors have identified a “limited set of materials” from the search of Donald Trump’s Mar-a-Lago home that “potentially contain attorney-client privileged information,” the government told a judge on Monday.
The Department of Justice’s disclosure follows the court’s release of a redacted affidavit supporting the FBI’s search of the former president’s primary residence earlier this month. That affidavit stated that the National Archives recovered an extensive trove of classified documents from Mar-a-Lago earlier this year in May. They included 184 unique documents with classification markings, including 67 marked as “Confidential,” 92 marked as “Secret,” and 25 documents marked as “Top Secret.”
The FBI obtained a judicially authorized search warrant to retrieve the remainder on Aug. 5, which the government executed three days later on Aug. 8.
Attorney General Merrick Garland later supported unsealing the search warrant providing the basis for the search, which cited suspected violations of the Espionage Act, obstruction of justice, and mishandling of defense documents. The affidavit supporting the warrant laid out the procedures the government would follow for handling materials that might qualify for attorney-client privilege.
Those call for the inspection of the materials by a so-called privilege review team, sometimes described as a “taint team,” within the Department of Justice. Officials on this team are not participating in the investigation — and are walled off from federal prosecutors who are.
“If the Privilege Review Team determines the documents or data are not potentially attorney-client privileged, they will be provided to the law-enforcement personnel assigned to the investigation,” the affidavit states. “If at any point the law-enforcement personnel assigned to the investigation subsequently identify any data or documents that they consider may be potentially attorney-client privileged, they will cease the review of such identified data or documents and refer the materials to the Privilege Review Team for further review by the Privilege Review Team.”
If that team discovers privileged materials, prosecutors said, they may apply for a determination from the judge about whether the government can retain them. The government would make that application ex parte, meaning without prior disclosure to the former president.
“Additionally, the Department of Justice and the Office of the Director of National Intelligence (‘ODNI’) are currently facilitating a classification review of materials recovered pursuant to the search,” the government’s three-page notice filed on Monday reads. “As the Director of National Intelligence advised Congress, ODNI is also leading an intelligence community assessment of the potential risk to national security that would result from the disclosure of these materials.”
Made public on Aug. 12, the property receipt following the FBI’s search contained limited information about the nature of the documents retrieved. They included the executive grant of clemency to Trump’s associate Roger Stone, a longtime Republican operative; unspecified information regarding the president of France; and assorted confidential, secret, top secret, and top secret/sensitive compartmented information. Trump and his supporters have asserted that the former president had a standing order declassifying any of the materials that he removed, but experts note that even if true, this would provide little defense. The statutes cited in the search warrant do not require that the documents be classified, only that they include defense information.
Read the government’s notice:
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