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Special Master in Mar-a-Lago Document Dispute Retains Authority to Issue Public Reports After Raising Questions About His Role

A photo shows Donald Trump.

Former President Donald Trump speaks at a rally at the Aero Center Wilmington on September 23, 2022 in Wilmington, North Carolina. (Photo by Allison Joyce/Getty Images.)

A special master overseeing the privilege review of documents seized from former President Donald Trump’s office and residence at Mar-a-Lago can continue issuing public reports, a federal judge affirmed on Tuesday.

The ruling follows a biting interim report and recommendation by Senior U.S. District Judge Raymond Dearie, who questioned whether the judge had dialed back on the scope of his appointment as special master.

In the report, Judge Dearie “respectfully” argued that an order by U.S. District Judge Aileen M. Cannon curtailed his authority to submit reports back to Cannon, after the 11th Circuit Court of Appeals overturned one of her rulings favoring Trump. Cannon appointed Dearie for the role of special master, after Trump’s legal team nominated him and prosecutors did not oppose his appointment.

The 11th Circuit, at the request of federal prosecutors, allowed the U.S. Department of Justice to continue a review of more than 100 classified documents seized from Mar-a-Lago as part of a criminal investigation. Judge Cannon had initially halted that portion of the review pending Dearie’s probe into whether or not any privileged material may have been collected by the FBI.  Cannon’s reaction to the 11th Circuit’s decision to upend her previous ruling appeared to flummox Dearie.

In a filing, Dearie explained the issue as follows, by arguing that the 11th Circuit’s decision was entirely “unrelated” to his own ability to issue reports about the case:

In the original Appointing Order, the Court directed that “the Special Master shall submit interim reports and recommendations as appropriate. Upon receipt and resolution of any interim reports and recommendations, the Court will consider prompt adjustments to the Court’s orders as necessary.” However, the Court later struck that language as part of its order implementing an unrelated ruling by the Eleventh Circuit. As the language quoted above as to interim reports and adjustments to prior orders is consistent with the Eleventh Circuit’s ruling and the efficient administration of the Appointing Order as amended, the undersigned respectfully recommends that the Court issue an order reinstating that language. (Citations omitted)

Another section of the same document by Dearie also notes that a “Revised Detailed Property Inventory” filed by the DOJ on Sept. 26 differs in some respects from a “Detailed Property Inventory” previously filed by the government on Aug. 30.

Dearie pushed back several deadlines due to those differences and due to troubles locating a software vendor “to digitize the Seized Materials.” Accordingly, a Trump deadline for responding to the government’s assertions about the Mar-a-Lago material has been moved from Sept. 30 to Oct. 7. A government rebuttal, however, remains due on Oct. 14 and will not be pushed back.

In a second document filed Tuesday, Dearie asked Judge Cannon to appoint retired U.S. Magistrate Judge James Orenstein of the Eastern District of New York as an assistant.

Orenstein “has experience with complex case management, privilege review, warrant procedures, and other matters that may arise in the course of the Special Master’s duties,” Dearie wrote. “Judge Orenstein has served as an appointed amicus curiae in the Foreign Intelligence Surveillance Court pursuant to 50 U.S.C. § 1803(i)(2) and currently holds Top Secret clearance.”

Dearie noted that no parties objected to his attempt to seek Orenstein’s appointment or to other portions of a staffing, compensation, or expense plan.

That plan would, if approved by Cannon, allow Dearie to “utilize Eastern District of New York court staff” while carrying out his duties as special master.

Dearie said that he “will seek no additional compensation” because he is already a U.S. District Judge in active service. However, he sought a $500 per hour rate for Orenstein.

Cannon replied shortly after Dearie filed the twin documents with a paperless order. That order, in essence, tells Dearie that he is free to onboard Orenstein.  It also tacitly addresses Dearie’s other concerns by indicating that he is free to report — apparently as desired:

PAPERLESS ORDER approving 117 the Staffing, Compensation, and Expense Proposal of the Special Master pursuant to Paragraph 15 of the Court’s Order Appointing Special Master 91 . The Court takes no other action at this time, recognizing that the Order Appointing Special Master authorizes the Special Master to file reports and make recommendations as appropriate [ECF No. 91, para. 9]. Signed by Judge Aileen M. Cannon on 9/27/2022.

Read the two documents filed by Dearie 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.