Special Master Agrees to Send Cache of Mar-a-Lago Documents to DOJ ‘Case Team’ Assigned to Investigate Possible Crimes

The special master tapped to oversee a review of documents from Donald Trump’s Mar-a-Lago home and resort has agreed to ship a tranche of the seized material to a U.S. Department of Justice or FBI “case team.” That move came after the former president’s attorneys failed to assert several forms of privilege over the subset of paperwork in question.

The “case team” is made up of “law enforcement personnel conducting this investigation,” earlier documents indicate; in essence, it is tasked with reviewing whether any violations of law occurred. Before it can review all of the material seized from Mar-a-Lago, a separate “privilege team” was tasked with reviewing the documents. The goal of that process is to ensure that criminal investigators won’t see any material they are legally not permitted to examine or to use should a criminal case be filed.

In an order issued Friday, Senior U.S. District Judge Raymond Dearie, appointed as special master to oversee the process, said the DOJ and Trump’s lawyers filed a “Log of Disputes for Filter Materials,” also known as a “Filter Log,” under seal.

“The Special Master has reviewed the Filter Log and has confirmed that Plaintiff is not asserting attorney-client privilege or attorney work product doctrine for the above-listed documents,” Dearie wrote after listing 37 documents by page number. “Pursuant to the parties’ agreement, the Privilege Review Team is directed to furnish the above-listed documents to the Case Team on or before October 10, 2022.”

From there, Dearie directed the case team to “confer” with Trump’s lawyers in an “attempt to resolve or narrow the disputes regarding claims of executive privilege and designations pursuant to the Presidential Records Act.”

An updated log memorializing those latter claims must then be filed, Dearie wrote, by Oct. 20. Once that log is submitted, Dearie said he would “endeavor to promptly issue a report making recommendations regarding Plaintiff’s assertions of attorney-client privilege and/or attorney work product doctrine, which will be submitted to the Court for review in accordance with the Order Appointing Special Master.”

Those directives apply to materials identified in court papers as “Filter A and C Materials.”

So-called “Filter B Materials” are different.

“The parties jointly recommend that the Special Master not resolve disputes concerning the Filter B Materials, with one exception discussed below,” Dearie wrote.

That’s because the government and Trump’s attorneys agreed that virtually all of the material should be returned to Trump.

“Accordingly, the Court directs the Privilege Review Team to release the original Filter B Materials to Plaintiff by October 10, 2022,” Dearie wrote.

The special master noted that he was only retained “to issue a report and recommendation only as to those documents for which the parties disagree.”  Accordingly, a request for him to review a document over which no true dispute existed was moot, he wrote (we’ve omitted the legal citations and parenthetical references):

The parties disagree “whether the Special Master should make a privilege determination with respect to” the document bearing the Bates stamp B-076, a letter in the Privilege B Materials. Plaintiff has made no assertion of privilege as to B-076 and the parties agree that the document is not privileged.  In the absence of any disagreement, there is no designation dispute for the undersigned to adjudicate.  The Privilege Review Team shall promptly return the original copy of document B-076 to Plaintiff along with the other Filter B Materials.

The DOJ’s Privilege Review Team will be allowed to “maintain a control copy of the Filter B Materials, as it has throughout this litigation,” Dearie added.

A privilege review team within the DOJ has been examining “potentially privileged” materials. It was tasked by Judge Aileen M. Cannon, who is presiding over Trump’s lawsuit against the government regarding the seized materials, with creating “short descriptions and Bates ranges” of the documents that may be privileged and putting that information into a spreadsheet for reference. “Bates” stamps are unique page numbers applied to overall caches of documents; the name is a carryover from the days of the mechanical stamping by hand of large batches of evidence.

The U.S. Department of Justice has long asserted that claims of executive privilege by Trump are not legally valid.

“[B]inding Supreme Court precedent forecloses Plaintiff’s argument that review of these materials by personnel within the Executive Branch raises such privilege concerns,” the DOJ wrote in an Aug. 30 filing.

In other words, Trump cannot use executive privilege to ban executive branch agents under the Biden administration from reviewing the documents in question, the DOJ asserted. Under the DOJ’s view, executive privilege can only be asserted by one branch of government against another, not against one executive as to a subsequent holder of that office.

A court document that was supposed to have been secret, but which was reportedly accidentally filed on the open record, explained what some of the “Filter A” and “Filter B” materials included.

The Filter A materials, according to that document, included such items as a draft immigration initiative, several clemency matters (including one involving Rod Blagojevich), a letter to Robert Mueller, an immigration policy document, an email from attorney Charles Harder to the New York Times, several National Archives and Records Administration letters, a document entitled “The President’s Calls,” and a document entitled “Message from Rudy.”

The Filter B materials, according to the same document, included a Sept. 13, 2016 letter from Trump’s doctor, Dr. Harold N. Bornstein; a copy of a lawsuit Trump for President filed against a small Wisconsin television station; a letter from the Trump campaign to the Biden campaign that was copied to the CEOs of Facebook and Twitter; a letter which contained a note saying it was “from Cleta Mitchel” [sic]; a “Restrictive Covenant Agreement” signed by Trump; a document with billing question; a settlement agreement between the PGA and Trump Golf; copies of a Trump election lawsuit against Brian Kemp and Brad Raffensperger; documents from Trump’s lawsuit against Mary Trump; documents from E. Jean Carroll’s lawsuit against Trump; and other legal documents.

Comparing the list of material filed reportedly in error and Dearie’s order dated Friday, the specific documents listed in Dearie’s report that will be transmitted to the “case team” include a draft 2019 immigration initiative, a congressional clemency request, a senate clemency request, and a printed email between the Head Baseball Coach at the U.S. Air Force Academy and the White House.

Also included in the handoff to the case team are the following:

• Document titled “Executive Action to Curb Illegal Immigration and Move Towards Merit-Based Entry” (2 copies);
• Printed email between White House and National Security Council regarding John Walker Lindh’s release;
• Letter to President regarding Ted Suhl clemency and Ted Suhl commutation internal analysis (2 copies) [only part of this document appears to be part of Dearie’s transfer to the case team — presumably the “internal analysis” section is excluded];
• Publicly filed letter to judge regarding Rod Blagojevich clemency;
• Rod Blagojevich commutation internal analysis [only part of this document appears to be part of Dearie’s transfer to the case team];
• Publicly filed letter to Congress regarding Rod Blagojevich clemency;
• Internal pardon package for “IR” and “JC” [only part of this document appears to be part of Dearie’s transfer to the case team];
• Internal pardon package for “MB” [only part of this document appears to be part of Dearie’s transfer to the case team];
• Printed email from Charles Harder to New York Times;
• Document titled “Meeting Requests for Your Approval”; post-it note “For POTUS Review”;
• Document titled “Molly’s questions for POTUS Review”;
• Printed email dated 12/31/2020 from Kurt Hilbert to White House email account regarding signed verifications for Fulton County lawsuit and federal complaint and three verifications [only part of this document appears to be part of Dearie’s transfer to the case team].

The partial inclusion of some of the documents suggests that the case team will not immediately — or perhaps ever — receive documents that contain evidence of internal White House deliberative processes as to the matters referenced.

The remaining material not immediately handed over to the case team will be washed through the processes Dearie laid out above.

The relevance of the material to any potential criminal prosecution is not immediately clear.

The DOJ has said it is investigating possible violations of the Espionage Act; Trump’s attorneys have characterized the issue as a dispute involving the Presidential Records Act.

Dearie’s order is below: