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Judge Says Special Master Must Review Mar-a-Lago Documents to Prove ‘Important and Disputed’ Questions of Whether They’re Really Classified or Privileged

Donald Trump was photographed holding his hands above his head in a celebratory pose.

Former U.S. President Donald Trump speaks during a conservative summit on July 23, 2022 in Tampa, Florida. (Photo by Joe Raedle/Getty Images.)

A federal judge has refused a request by the U.S. Department of Justice to stay a prior decision to require an independent party to review material seized from Donald Trump’s Florida home and resort.  The order on the stay request indicates that the judge is inclined to question the government’s assertions about the nature of the documents at the heart of the dispute.

U.S. District Judge Aileen M. Cannon is overseeing a civil request for a special master — an independent reviewer of materials — filed by lawyers for Donald Trump against the U.S. Department of Justice.  The subject matter of the request is a bevy of material the FBI recovered from the ex-president’s Mar-a-Lago club and residence in Florida which the government has characterized as classified material.

Federal prosecutors initially opposed Trump’s request; Judge Cannon ruled that a special master was required.  Prosecutors then asked her to temporarily set aside that decision.  Cannon refused to do so on Thursday and appointed Raymond J. Dearie, a retired federal judge, to “prioritize” a review of the material.

Cannon reiterated Thursday that Dearie’s appointment was made “pursuant to [the court’s] equitable jurisdiction and inherent supervisory authority, and in light of the extraordinary circumstances presented” by a search warrant aimed at the home of a former president.  Cannon noted that she enjoined the government from using the fruits of the search for “criminal investigative purposes” but did allow the government to “continue to review and use the materials seized for purposes of intelligence classification and national security assessments.”

The government appealed Cannon’s order to appoint a special master and asked that it temporarily be stayed; an affidavit by Alan E. Kohler, Jr., Assistant Director of the Counterintelligence Division of the Federal Bureau of Investigation, explained that the security assessments were “inextricably linked” to the criminal investigation “and that it would be ‘exceedingly difficult’ to bifurcate the personnel involved,” Cannon recalled.

Cannon suggested that she would neither heartily nor doubtlessly agree with the government’s assertion that the material was what prosecutors said it was:

The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them. The second is that Plaintiff has no plausible claim of privilege as to any of these documents [ECF No. 69 p. 7 (categorically asserting that the “classified records at issue in this Motion . . . do not include personal records or potentially privileged communications”)]. The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion.

Top secret documents recovered from Mar-a-Lago appear in an evidence photo.

Federal prosecutors say FBI agents seized these materials from Mar-a-Lago. The contents of the documents were redacted with white squares. (Image via an Aug. 31, 2022 federal court filing.)

Cannon continued (citations omitted) by chiding the government for seizing some personal property along with the documents — a move some have theorized was undertaken to collect evidence which proves precisely who was accessing the allegedly classified material:

To further expand the point, and as more fully explained in the September 5 Order, the Government seized a high volume of materials from Plaintiff’s residence on August 8, 2022; some of those materials undisputedly constitute personal property and/or privileged materials; the record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials; and there are documented instances giving rise to concerns about the Government’s ability to properly categorize and screen materials.

In other words, Cannon appears to want a special master to affirm or to deny precisely whether or not the materials are what the government claims they are.

“In many respects,” Cannon continued, “the Government’s position thus presupposes the content, designation, and associated interests in materials under its control—yet, as the parties’ competing filings reveal, there are disputes as to the proper designation of the seized materials, the legal implications flowing from those designations, and the intersecting bodies of law permeating those designations.”

“Under these circumstances, the Court declines to conduct a subset-by-subset, piecemeal analysis of the seized property, based entirely on the Government’s representations about what is contained in a select portion of the property,” Cannon went on.  “Indeed, if the Court were willing to accept the Government’s representations that select portions of the seized materials are—without exception—government property not subject to any privileges, and did not think a special master would serve a meaningful purpose, the Court would have denied Plaintiff’s special master request.”

Cannon then spent several pages clarifying the nature of the original special master order (again, citations are omitted):

The September 5 Order temporarily enjoins the Government—as a component of the special master process—only from further use of the content of the seized materials for criminal investigative purposes pending resolution of the Special Master’s recommendations. This includes, for example, presenting the seized materials to a grand jury and using the content of the documents to conduct witness interviews as part of a criminal investigation. The September 5 Order does not restrict the Government from conducting investigations or bringing charges based on anything other than the actual content of the seized materials; from questioning witnesses and obtaining other information about the movement and storage of seized materials, including documents marked as classified, without discussion of their contents; from briefing “Congressional leaders with intelligence oversight responsibilities” on the seized materials; from reviewing the seized materials to conduct the Security Assessments; or from involving the FBI in the foregoing actions. Moreover, as indicated in the September 5 Order, the temporary restraint does not prevent the Government from continuing “to review and use the materials seized for purposes of intelligence classification and national security assessments.” Hence, as Plaintiff acknowledges, to the extent that such intelligence review becomes truly and necessarily inseparable from criminal investigative efforts concerning the content of the seized materials, the September 5 Order does not enjoin the Government from proceeding with its Security Assessments.

The judge also jettisoned the government’s suggestions that the security review process and the criminal review process were “inextricably intertwined.”

“[I]nstead,” Cannon wrote, the government “rel[ied] heavily on hypothetical scenarios and generalized explanations that do not establish irreparable injury” on those points.

A photo shows the exterior of Mar-a-Lago.

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.)

Cannon did offer one caveat:  she ordered the special master to “prioritize review of the approximately 100 documents marked as classified (and papers physically attached thereto).”  That move, she said, was a response to the government’s concerns; she said she would “consider prompt adjustments to the Court’s Orders as necessary” after that review was complete.

Cannon also suggested she was placing a relatively high degree of trust in the government to carry out the review as ordered.  A footnote elucidates on those concerns:

Needless to say, the Court is confident that the Government will faithfully adhere to a proper understanding of the term “inextricable” and, where possible, minimize the use and disclosure of the seized materials in accordance with the Court’s orders. Because the Court is not privy to the specific details of the Government’s investigative efforts and national security review, the Court expects that the Government, in general, is best suited to assess whether contemplated actions are consistent with the standard described herein.

Why the need for a special master review at this stage of the proceeding despite government suggestions that none was necessary or warranted under the law?  In short, Cannon said that Trump was special because used to be the president:

Lastly, the Court agrees with the Government that “the public is best served by evenhanded adherence to established principles of civil and criminal procedure,” regardless of the personal identity of the parties involved [ECF No. 88 p. 10]. It is also true, of course, that evenhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice. Based on the nature of this action, the principles of equity require the Court to consider the specific context at issue, and that consideration is inherently impacted by the position formerly held by Plaintiff. The Court thus continues to endeavor to serve the public interest, the principles of civil and criminal procedure, and the principles of equity. And the Court remains firmly of the view that appointment of a special master to conduct a review of the seized materials, accompanied by a temporary injunction to avoid unwarranted use and disclosure of potentially privileged and/or personal materials, is fully consonant with the foregoing principles and with the need to ensure at least the appearance of fairness and integrity under unprecedented circumstances.

Reaction to the judge’s order was still rolling in as of the time of this report, but national security attorney Bradley P.  Moss tweeted accordingly:  “In sixteen years, I have NEVER had a judge just blithely dismiss classification markings on a government document and say it’s something that is up for debate.”

The full order, along with the paperwork which appoints the special master, are all below:

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.