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Judge Grants Trump’s Request for Special Master to Review Mar-a-Lago Documents


A federal judge intervened on Monday within the investigation of former President Donald J. Trump’s handling of sensitive government records, ordering the appointment of an independent arbiter to review a trove of materials seized last month from Mr. Trump’s private club and residence in Florida.

The judge, Aileen M. Cannon of the Federal District Court for the Southern District of Florida, also temporarily barred the Justice Department from using the seized materials for any “investigative purpose” connected to its inquiry of Mr. Trump until the work of the arbiter, often called a special master, was accomplished.

The order would prevent, at the least for now, federal prosecutors from using key pieces of evidence as they proceed to analyze whether the previous president illegally retained national defense documents at his estate, Mar-a-Lago, or obstructed the federal government’s repeated efforts to get them back.

While the order may ultimately serve only to delay the criminal inquiry into Mr. Trump, the scope and candor of Judge Cannon’s language and reasoning pointed to broader themes. Her ruling appeared to carve out a special exception to the conventional legal process for the previous president and reject the Justice Department’s implicit argument that Mr. Trump be treated like several other investigative subject.

Indeed, in her order, issued on the Labor Day holiday, Judge Cannon said she had made her decisions “to make sure at the least the looks of fairness and integrity under the extraordinary circumstances.” Her order wouldn’t, nonetheless, affect a separate review of the documents by the Office of the Director of National Intelligence in search of to find out what risk to national security their removal to Mar-a-Lago could have caused.

Justice Department officials last week had discussed the potential for an appeal if the judge ruled in Mr. Trump’s favor, but a department spokesman, Anthony Coley, demurred on Monday when asked how it might respond.

“The US is examining the opinion and can consider appropriate next steps in the continuing litigation,” he said.

Any appeal of Judge Cannon’s ruling can be heard by a three-judge panel from the US Court of Appeals for the eleventh Circuit in Atlanta. Of its 11 energetic judges, six were appointed by Mr. Trump.

Judge Cannon, who was appointed by Mr. Trump in 2020, granted the special master wide-ranging authority to review the greater than 11,000 documents carted away from Mar-a-Lago by the F.B.I. on Aug. 8, a few of which bore markings labeling them as highly classified. Her ruling permitted whoever is appointed to the job to guage the documents not just for those protected by attorney-client privilege, a comparatively common measure, but in addition for those potentially shielded by executive privilege, which generally protects confidential internal executive branch deliberations.

After trying for months to get the documents back from Mr. Trump, the National Archives, the agency that safeguards presidential records, told his lawyers in a letter in May that each the Justice Department and the Biden White House didn’t imagine the previous president’s executive privilege claims had merit.

“The query on this case shouldn’t be an in depth one,” the archives wrote.

At a hearing last week in regards to the query, the Justice Department argued that allowing a special master to conduct an executive privilege review of the seized material can be “unprecedented” and legally baseless for the reason that department itself is a component of the present executive branch and Mr. Trump is not any longer in office.

“There isn’t any role for a special master to play in executive privilege,” Julie Edelstein, a lawyer for the department, said throughout the hearing.

But Judge Cannon clearly disagreed with the Justice Department, writing within the order that she was “not convinced” of the federal government’s categorical assertion that executive privilege didn’t apply on this context. She added that she thought the department’s position “arguably overstates the law” and that setting aside any documents that might be shielded by executive privilege because the legal issues within the case are sorted out made sense.

“Even when any assertion of executive privilege by plaintiff ultimately fails on this context, that possibility, even when likely, doesn’t negate a former president’s ability to boost the privilege as an initial matter,” she wrote.

In her order, Judge Cannon evinced concern that Mr. Trump might suffer “reputational harm” from a search that was not conducted properly — or, as she added, from “a future indictment” that was based even partly on “property that must be returned.”

She noted that the inquiry of Mr. Trump needed to be undertaken with particular care and deference, placing him in his own category.

“As a function of plaintiff’s former position as president of the US,” Judge Cannon wrote, “the stigma related to the topic seizure is in a league of its own.” She also noted that, due to the search of Mar-a-Lago, Mr. Trump faced “unquantifiable potential harm by the use of improper disclosure of sensitive information to the general public.”

Such statements flew within the face of the Justice Department’s repeated assertions that in investigating Mr. Trump, it might follow the facts and the law, just as it might during an inquiry into every other person.

Though her ruling specifically forbade the Justice Department from using the trove of materials seized from Mar-a-Lago in its investigation of Mr. Trump for now, it remained unclear how it might affect other means prosecutors might use to pursue the investigation. On Friday, in a court filing disclosed together with an in depth inventory of the items taken throughout the search, prosecutors said the documents inquiry remained an “energetic criminal investigation” that might involve “further investigative steps” — amongst them, “additional witness interviews and grand jury practice.”

Still, the ruling, which is able to require several time-consuming steps, will almost actually decelerate the investigation. Judge Cannon will first must appoint someone to perform the job of special master. Then that person may have to conduct a review of a giant trove of documents and judge if any are protected either by attorney-client or executive privilege.

Judge Cannon ordered the Justice Department and lawyers for Mr. Trump to send her a listing of potential candidates for the special master job and suggestions for what powers the position would hold by Friday.

Even then, there might be further legal motion. Mr. Trump’s lawyers have said they wish to discover the privileged items, partly as a precursor to filing a broad legal challenge to the search under the Fourth Amendment, which guards against unreasonable searches and seizures.

Within the ruling, Judge Cannon offered just a few recent details concerning the search itself. She noted, for instance, that amongst the federal government records seized by the F.B.I., agents found a few of Mr. Trump’s “medical documents, correspondence related to taxes and accounting information.” The warrant for the search of Mar-a-Lago authorized the F.B.I. to remove any boxes that contained government documents even when items of a more personal nature were discovered amongst them.

Judge Cannon noted, the truth is, that Mr. Trump’s personal items were identified and put aside by a so-called filter team of federal agents walled off from the team investigating Mr. Trump. Still, in her order, she solid doubt on the work of the filter team, saying, without giving specifics, that in two instances, materials that ought to have been identified as privileged ended up within the hands of prosecutors.

Judge Cannon also said that the sheer amount of fabric seized from Mar-a-Lago justified naming a special master, adding that she alone was not equipped to pore over greater than 10,000 pages of documents to find out what ought to be a part of the federal government’s investigation and what shouldn’t.

“Considering the amount of seized materials and the parties’ expressed desire for swift resolution of this matter,” Judge Cannon wrote, “a special master can be higher suited than this court to conduct the review.”

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