A federal judge has granted former President Donald Trump’s request to appoint a “special master” to review materials that the FBI seized from Mar-a-Lago last month.
The decision, from Trump-appointed District Judge Aileen Cannon, is a significant victory for the former President, who has railed against the Biden administration and Justice Department since the search was executed four weeks ago.
“As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own,” Cannon wrote. “A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.”
Cannon ordered that a third-party attorney, from outside the government, be brought in to review the materials that were taken from Trump’s home and resort in Florida. The order also halts the Justice Department from continuing its review of the materials seized from Mar-a-Lago “pending completion of the special master’s review or further Court order.”
The classification review and intelligence assessments being conducted by the Office of the Director of National Intelligence, however, will be allowed to continue.
Both sides have until Friday to nominate special master candidates and their specific duties.
Trump’s lawyers argued that a special master was needed because they don’t trust the Justice Department to fairly identify privileged materials that would need to be excluded from the ongoing criminal probe.
Trump blasted the Justice Department and the seizure at his rally in Pennsylvania this weekend.
“This egregious abuse of the law is going to produce a backlash the likes of which nobody has ever seen before,” he said. “… these same exact people at Justice and the FBI, these same exact people, along with outside scum, are at it again with the horrific raid of my home. They just go on and on and they have to be stopped.”
However, Cannon wrote that Trump had not proven that his constitutional rights were disregarded.
“(T)he Court agrees with the Government that, at least based on the record to date, there has not been a compelling showing of callous disregard for Plaintiff’s constitutional rights,” she wrote.
But Cannon cited several reasons for bringing in the special master, among them “the interest in ensuring the integrity of an orderly process amidst swirling allegations of bias and media leaks.” She also cited the historic nature of the case.
The judge said the special master will be tasked with reviewing “seized property for personal items and documents and potentially privileged material subject to claims of attorney-client and/or executive privilege.”
She added: “The Court is mindful that restraints on criminal prosecutions are disfavored but finds that these unprecedented circumstances call for a brief pause to allow for neutral, third-party review to ensure a just process with adequate safeguards.”
The Justice Department has said that its own “filter team” already finished its review of the Mar-a-Lago documents – and found a small set of attorney-client privileged records.
In court documents, DOJ said a “limited” number of records potentially covering attorney-client privilege were filtered out, and that the department was following the procedures it laid out to a magistrate judge when it sought the warrant, but Cannon had questions about its results.
The Justice Department also obtained “correspondent related to taxes,” and medical documents during the search, according to the privilege team report that remains sealed but Cannon described Monday.
Cannon noted that Justice Department lawyers had acknowledged it seized some “[p]ersonal effects without evidentiary value,” as well as 500 pages of material potentially subject to attorney-client privilege.
“To appoint a special master to make privilege determinations while simultaneously allowing the Government, in the interim, to continue using potentially privileged material for investigative purposes would be to ignore the pressing concerns and hope for the best,” the judge said.
She wrote that Trump’s “individual interest in and need for the seized property” was one reason to rule in favor of Trump’s requests for a special master.
Cannon also said that the privilege review team’s report outlined “at least two instances in which members of the Investigative Team were exposed to material that was then delivered to the Privilege Review Team.”
“Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter,” she wrote.
“The United States is examining the opinion and will consider appropriate next steps in the ongoing litigation,” said Justice Department spokesman Anthony Coley.
Cannon set a Friday deadline for Trump’s lawyers and Justice Department prosecutors to negotiate the special master’s “duties and limitations” and to submit a list of potential candidates to serve in the role.
She also wants both sides to propose a schedule for the special master’s review and to spell out how the person will be compensated for their work.
“The exact details and mechanics of this review process will be decided expeditiously following receipt of the parties’ proposals,” Cannon wrote.
Because the lawsuit demanding the special master was filed by Trump two weeks after the search, it has raised questions among legal observers what role a special master could even play, given that by that time the Justice Department was likely well on its way to finishing its review of the evidence.
The scope of a special mater will be key.
The DOJ had asked for the review, if it was granted, to focus on materials potentially covered by attorney-client privilege. Trump has been asking for the special master on the basis of there being executive privilege concerns with the seizure of the records.
At the hearing, according to reports, the judge said that Trump’s ability to assert executive privilege as a former president was unsettled law. But she also had pointed questions for the Trump team about what the review they were seeking would look like.
If the two sides don’t agree on the parameters for the soon-to-be appointed special master, they should explain their differences in a court filing, Cannon ruled Monday.
Explaining why she was ordering a special master review for material potentially covered by executive privilege, Cannon said that the Justice Department had not convinced the court that those concerns should be “disregarded,” as she went on quote from how the Supreme Court described its move in a dispute this year over Trump January 6 documents, including a statement from Justice Brett Kavanaugh.
The DOJ had “arguably overstate[d] the law,” Cannon wrote, when asserting that executive privilege had no “role to play here because Plaintiff – a former head of the Executive Branch – is entirely foreclosed from successfully asserting executive privilege against the current Executive Branch.”
“The Supreme Court did not rule out the possibility of a former President overcoming an incumbent President on executive privilege matters,” Cannon wrote.
She quoted from both the 1977 decision Nixon v. Administrator of General Services and from the order released this year by the Supreme Court when it refused to block the Archives’ release to House January 6 investigators Trump White House documents.
“Further, just this year, the Supreme Court noted that, at least in connection with a congressional investigation, ‘[t]he questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege, are unprecedented and raise serious and substantial concerns,’” Cannon wrote, quoting from the Supreme Court order.
Cannon added a line from a statement Kavanaugh wrote with that Supreme Court order: “A former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim. Concluding otherwise would eviscerate the executive privilege for Presidential communications.”
Jumping off of those quotes from the Supreme Court, Cannon wrote Monday that “even if any assertion of executive privilege by Plaintiff ultimately fails in this context, that possibility, even if likely, does not negate a former President’s ability to raise the privilege as an initial matter.”
Cannon of the Southern District of Florida, was nominated by Trump to the bench in May 2020 and confirmed by the Senate in a 56-21 just days after the presidential election in November 2020.
She previously served as an assistant US attorney in Florida in the Major Crimes Division and as an appellate attorney, according to written answers she gave to the Senate during her confirmation process.
A University of Michigan Law School graduate, Cannon clerked for a federal judge and later practiced law at a firm in Washington, DC, where she handled a range of cases, including some related to “government investigations,” she told the Senate.
At her 2020 nomination hearing, Cannon thanked members of her family and shared the impact of their experience on her own life.
“To my loving mother … who, at the age of 7, had to flee the repressive Castro regime in search of freedom and security, thank you for teaching me about the blessing that is this country and the importance of securing the rule of law for generations to come,” she said.
This story has been updated with additional details.