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Judge Names Special Master and Keeps Block on Mar-a-Lago Files Inquiry

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WASHINGTON — A federal judge on Thursday rejected the Justice Department’s request to resume a key a part of its inquiry into former President Donald J. Trump’s handling of sensitive government records and appointed an outdoor arbiter to review 1000’s of documents seized last month from his Florida residence.

The judge, Aileen M. Cannon, declined to lift any a part of an order she issued last week that barred the department from using the documents, including about 100 marked classified, in its investigation until the arbiter, often known as a special master, had accomplished a review.

In her 10-page decision, Judge Cannon appointed a special master suggested by the Trump legal team and agreed upon by the federal government: Raymond J. Dearie, a semiretired judge from the Federal District Court for the Eastern District of Recent York.

Judge Dearie will now have the authority to sift through greater than 11,000 records the F.B.I. carted away from Mr. Trump’s estate, Mar-a-Lago, on Aug. 8. The move was a blow to the Justice Department, almost certain to significantly delay its investigation into whether the previous president unlawfully retained national defense records or obstructed repeated attempts by federal officials to retrieve them.

The department had asked Judge Cannon to lift restrictions on its use of documents with classification markings and set a Thursday deadline for her to reply before it said it will ask an appeals court to intervene. The department is now planning to appeal the choice, and top officials were meeting to debate the timing of their filing, in accordance with a senior law enforcement official.

Judge Cannon’s order was the most recent turn in what has now change into a protracted and politically fraught court battle over the trove of documents seized within the search of Mar-a-Lago.

While Judge Cannon’s order was a victory for Mr. Trump and his legal team, she also made two significant concessions to the federal government.

She said, as an illustration, that Judge Dearie should first take a look at the classified documents and “thereafter consider prompt adjustments to the court’s orders as crucial.” That raised the likelihood that Judge Dearie might quickly clear the items and the F.B.I. would then regain unrestricted use of them in its criminal inquiry. In her order, Judge Cannon said the special master should try to complete his review by Nov. 30.

Judge Cannon also clarified her temporary ban on the Justice Department’s investigation. While the department couldn’t present the seized documents to a grand jury or ask witnesses about their contents, she said, the F.B.I. could proceed to analyze “the movement and storage of seized materials, including documents marked as classified, without discussion of their contents.”

Still, Judge Cannon, whom Mr. Trump appointed in November 2020, declined to back down on having the special master vet those documents, too — and making the F.B.I. wait, not less than for now, to have full access to them in its investigation.

In her order, Judge Cannon took pains to explain herself as mindful of the standard reluctance of the judicial branch to intrude on executive authority in national security matters. But she wrote that her court couldn’t “abdicate its control over questions of privilege and doesn’t find the federal government’s argument sufficiently convincing as presented.”

Amongst other things, she went on, the federal government had not suggested there was any “identifiable emergency or imminent disclosure of classified information arising from” Mr. Trump’s retention of the materials. As an alternative, she added, “the unwarranted disclosures that float within the background have been leaks to the media after the underlying seizure.”

In naming Judge Dearie as special master, Judge Cannon didn’t address a difficulty the Justice Department had flagged in saying it was open to his appointment: As a semiretired judge on senior energetic status, he occasionally hears cases, and energetic judges are usually not alleged to have outside employment.

Judge Cannon said Mr. Trump would pay the complete cost of Judge Dearie’s compensation and expenses, together with the associated fee of support staff or advisers he needs, provided that Mr. Trump had requested a special master.

Asked about the potential for being indicted within the investigation, Mr. Trump told a conservative radio host on Thursday that there could be “problems on this country the likes of which perhaps we’ve never seen before.”

Last week, Judge Cannon issued an order announcing that she would appoint a special master to go over the materials to put aside any potentially covered by attorney-client privilege or, in a legally disputed move, executive privilege. She also prevented prosecutors from using any of the records in its investigation within the meantime.

But as a part of her order, Judge Cannon permitted the federal government to proceed using the documents for a national security risk assessment and a classification review.

Days later, the Justice Department asked Judge Cannon to remain parts of her order, requesting that the F.B.I. be allowed to resume investigating matters related to about 100 of the seized files marked as classified. The department argued that the bureau’s criminal investigation of the files was “inextricably linked” to the separate national-security reviews that she had said could proceed.

At the identical time, the Justice Department told Judge Cannon that if she didn’t comply with its requests for a stay by Thursday, it will ask the appeals court to intervene.

In effect, the federal government had sought a compromise, acquiescing to Judge Cannon’s decision to impose a special master and, not less than temporarily, to bar F.B.I. agents and prosecutors from working further with the overwhelming majority of the seized documents and other records. In return, the Justice Department asked Judge Cannon to let its investigators proceed working with a smaller batch.

To make their point, lawyers for the Justice Department singled out nearly 50 empty folders bearing classified banners that were found through the search of Mar-a-Lago. The lawyers said the F.B.I. needed to analyze what happened to the contents of the folders so intelligence officials could determine whether national security had been compromised.

The Office of the Director of National Intelligence has also said that after Judge Cannon’s order, it paused its risk assessment and classification review. In her ruling on Thursday, she expressed doubt about whether the federal government could now not conduct such an assessment without the criminal investigation proceeding — whilst she recommend a really narrow interpretation of her initial order.

Judge Cannon also responded to criticism that she had put an excessive amount of weight on Mr. Trump’s status as a former president in deciding that a special master with a broad mandate was justified. Critics have said that she violated the principle that the law is alleged to be evenhanded and treat everyone equally and that she has shown him special deference.

She wrote that “the principles of equity require the court to contemplate the precise context at issue, and that consideration is inherently impacted by the position formerly held” by Mr. Trump.

She added that she steadfastly believed that appointing a special master to review the seized materials and temporarily barring the federal government from using them was principled and crucial “to make sure not less than the looks of fairness and integrity under unprecedented circumstances.”

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