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Special Master Lays Out Detailed Roadmap of Things to Come in Clash Between Trump and DOJ over Mar-a-Lago Search

A photo shows Donald Trump holding his hand above his eyes while looking out at a crowd.

Former President Donald Trump was photographed speaking at a rally on Sept. 17, 2022 in Youngstown, Ohio. (Photo by Jeff Swensen/Getty Images.)

The special master appointed to independently oversee documents the FBI says it seized from Mar-a-Lago has asked Donald Trump’s attorneys to affirmatively state whether or not they believe some of the documents were, indeed, not seized from Trump’s palatial Palm Beach compound.

Judge Raymond Dearie, the special master involved in the matter, issued the command as part of a seven-page case management plan filed on Thursday.

The plan contains a multi-point list of declarations and affirmations Dearie wishes to have resolved by Trump’s lawyers.

The full list reads:

No later than September 30, 2022, Plaintiff shall submit a declaration or affidavit that includes each of the following factual matters:

a. A list of any specific items set forth in the Detailed Property Inventory that Plaintiff asserts were not seized from the Premises on August 8, 2022.

b. A list of any specific items set forth in the Detailed Property Inventory that Plaintiff asserts were seized from the Premises on August 8, 2022, but as to which Plaintiff asserts that the Detailed Property Inventory’s description of contents or location within the Premises where the item was found is incorrect.

c. A detailed list and description of any item that Plaintiff asserts was seized from the Premises on August 8, 2022, but is not listed in the Detailed Property Inventory.

This submission shall be Plaintiff’s final opportunity to raise any factual dispute as to the completeness and accuracy of the Detailed Property Inventory.

Trump notably asserted on Sean Hannity’s Fox News broadcast on Wednesday that the FBI may have planted evidence at Mar-a-Lago. Trump said Mar-a-Lago security footage of the FBI search was likely good enough to identify FBI agents personally but later said the footage would not have captured the planting of evidence. He said he didn’t want to release the footage because he feared it could identify the agents personally; he also suggested that most FBI agents probably voted for him.

It is unclear if Dearie’s Thursday request was connected to Trump’s assertion or whether Dearie independently sought confirmation on the questions presented.

Before Trump’s lawyers issue their response, Dearie asked the government to assert no later than Sept. 26 that “detailed property inventory” is “full and accurate.”

After Trump’s lawyers issue their response to the aforementioned questions, Dearie told the government to “submit a declaration or affidavit from a person with sufficient knowledge of the matter responding to any factual disputes as to the completeness and accuracy of the Detailed Property Inventory raised in Plaintiff’s submissions.” That response is due by Oct. 14.

When the filings are complete, Dearie said he would “schedule further proceedings as needed to resolve any such disputes including, if necessary, an evidentiary hearing at which witnesses with knowledge of the relevant facts will provide testimony.”

Dearie also told Trump’s attorneys and the government to “agree upon and contract with a document review vendor that will host the Seized Materials in electronic form” by Sept. 23. He said the government must use whatever system is selected to provide him with copies of the seized materials by Sept. 26.

Trump’s attorneys are to look through the material to determine “on a document-by-document basis” whether the following privileges may apply:

a.  Attorney-client communication privilege;

b.  Attorney work product privilege;

c.  Executive privilege that prohibits review of the document within the executive branch;

d.  Executive privilege that prohibits dissemination of the document to persons or entities outside the executive branch;

e.  The document is a Presidential Record within the meaning of the Presidential Records Act of 1978, 44 U.S.C. § 2201, et seq. (“PRA); see id. § 2201(2); and/or

f. The document is a personal record within the meaning of the PRA; see id § 2201(3).

That process will occur “on a rolling basis.”

“For any document that Plaintiff designates as privileged and/or personal, Plaintiff shall include a brief statement explaining the basis for the designation,” Dearie added. “For each set of designations Plaintiff provides to the government, the parties are to confer and attempt to resolve or narrow any disputes within seven days.”

Trump’s counsel must then turn over their conclusions in batches on Sept. 30, Oct. 7, and Oct. 14, Dearie requested. Logs which memorialize any disputes over the materials as to the aforementioned designations must be handed over by Oct. 7, Oct. 14, and Oct. 21, respectively.

After the reviews are complete, the court will hash out whether any property must be returned to Trump pursuant to his request under Rule 41(g) of the Federal Rules of Criminal Procedure.

Retired U.S. Magistrate Judge James Orenstein of the Eastern District of New York will assist Dearie in the matter.

“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’s case management plan indicates.

Orenstein will be paid $500 per hour, the filing indicates; Dearie will earn his usual compensation as an active judge.

Dearie wrote that his plan complies with an 11th Circuit order to partially stay several of Judge Aileen Cannon’s decisions regarding a special master review of the documents in question. Cannon is the federal judge who is directly overseeing Trump’s challenge to the Mar-a-Lago warrant.

The full case management plan is 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.