Former President Donald Trump speaks during a rally at the Mohegan Sun Arena in Wilkes-Barre Township, Pa., Saturday, Sept. 3, 2022. (Sean McKeag/The Citizens’ Voice via AP)
WASHINGTON (AP) — In a legal victory for former President Donald Trump, a federal judge on Monday granted his request for a special master to review documents seized by the FBI from his Florida home and temporarily halted use of the records by the Department of Justice for investigative purposes.
US District Judge Aileen Cannon’s decision authorizes an outside legal expert to review the footage taken during the Aug. 8 search and weed out from the remainder of the investigation any that may be protected by claims of attorney-client privilege or board-client privilege. Some of those records could eventually be returned to Trump, but the judge has delayed a decision on the issue.
The order came despite strong objections from the Justice Department, which said a special master wasn’t needed in part because officers had already completed their review of potentially privileged documents. The department said Monday it was reviewing the decision, but didn’t say if and when it could appeal.
The order will almost certainly slow the pace of the Department’s investigation into the presence of top secret information in Mar-a-Lago, particularly given the judge’s order that the Justice Department may not, at this time, use any of the seized materials as part of its investigation into the holding of government secrets on the Florida estate. The temporary injunction applies until the special foreman who has yet to be named has completed his work, or until “further court order”
“The Court recognizes that limitations in prosecution are not desirable, but notes that these unprecedented circumstances call for a brief pause to allow for neutral third-party review to ensure a fair trial with adequate safeguards.” Cannon, a Trump appointee, wrote in her 24-page order.
Despite this, it is not clear that the decision will hamper the progress of the investigation in the long term or significantly affect investigative decisions or the final outcome of the investigation. And a separate assessment by US intelligence agencies of the risk posed by the apparent misuse of classified records is continuing by judge’s order.
“While this is a victory for the former President, it is by no means an overwhelming victory for him,” David Weinstein, a Florida criminal defense attorney and former Justice Department prosecutor, said in an email. “While it’s a setback for the government, it’s not a devastating loss for them either.”
For example, he noted that the judge did not immediately order the confiscated documents to be returned to Trump or suppress any evidence.
Justice Department spokesman Anthony Coley said Monday “The United States is reviewing the Opinion and will consider appropriate next steps in the ongoing litigation.” A Trump attorney did not respond to a request for comment.
The ministry and Trump’s attorneys are expected to submit a list of proposed special masters candidates by Friday.
FBI agents seized about 11,000 documents and 1,800 other items from Mar-a-Lago in August as part of a criminal investigation into the location of national defense information and efforts to obstruct the investigation. About 100 of the documents contained classification marks.
Trump’s attorneys had argued that a special master, usually an outside attorney or former judge, was necessary to ensure an independent review of the records taken during the search so that any personal information or documents could be filtered out and returned to Trump.
In this case, the confiscated records “including medical documents, tax correspondence and accounting information” said the judge’s decision.
Cannon said it was too early to know if Trump was entitled to the return of any of the records, however “For now, the circumstances of the seizure in this case, and the attendant need for adequate procedural safeguards, are sufficiently compelling to at least get the plaintiff through the doors of the courthouse.”
She also said she found his lawyers’ arguments, which he may have faced, persuasive “Irreparable Injury” by denying him access to records that may be of significant personal interest to him. She said the preliminary investigation had run so far “locked up” to him.
“Due to plaintiff’s previous position as President of the United States, the stigma associated with the seizure is in a league of its own.” cannon wrote. “Any future indictment based in any way on property intended to be returned would result in reputational damage on a whole different scale.”
The Justice Department had argued against the appointment, saying it was unnecessary as it had already reviewed potentially privileged documents and identified a limited subset that could be covered by attorney-client privilege.
The department had used a separate one “Eligibility Review Team” for this work, but Cannon cited at least two cases involving members of the investigative team “exposed” on potentially privileged material, something she said raised questions about the appropriateness of the process.
The department had also said Trump was not entitled to the return of the presidential documents he took because he was no longer president and therefore the documents did not belong to him. And the personal items found were mixed with classified information, giving them potential evidentiary value, the department said.
Although prosecutors had argued that Trump, as a former president, had no legal basis to assert executive privilege over the documents, the judge said he was entitled to raise it as a concern and allowed the special master to search for records that may be covered this privilege.
“The biggest sticking point, I think, is that the executive privilege documents were included.” in the judge’s decision, said Florida criminal defense attorney Richard Serafini, a former Justice Department prosecutor.
Cannon, who was nominated by Trump in 2020, had signaled last month that she was inclined to appoint a special master and did so again during last week’s rows, once asking: “After all, what’s the harm in appointing a special master to settle these issues without undue delay?”