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Trump’s Mar-a-Lago documents already examined by FBI, Justice Dept. tells judge

A ‘filter team’ has completed its review of material possibly covered by attorney-client privilege, the court filing says

On August 26, 2022, a redacted version of the affidavit supporting the request to search former president Trump’s Florida residence was released. (Video: Michael Cadenhead/The Washington Post)

FBI agents have already finished their examination of possibly privileged documents seized in an Aug. 8 search of Donald Trump’s Mar-a-Lago home, according to a Justice Department court filing Monday that could undercut the former president’s efforts to have a special master appointed to review the files.

The “filter team” used by the Justice Department to sort through the documents and weed out any material that should not be reviewed by criminal investigators has completed its review, the brief filed by Justice Department prosecutors says. The filing came in response to a decision Saturday by U.S. District Judge Aileen M. Cannon to hold a hearing this week on Trump’s motion seeking the appointment of a special master.

The filing says prosecutors will provide more information later this week. But it notes that even before the judge’s weekend ruling, the filter team had “identified a limited set of materials that potentially contain attorney-client privileged information, completed its review of those materials, and is in the process of following the procedures” spelled out in the search warrant to handle any privilege disputes.

Trump’s legal team filed the request two weeks after the Aug. 8 search, calling the court-approved law enforcement action a “shockingly aggressive,” politically motivated raid. The former president’s attorneys claimed that federal authorities seized records to which they had no legal right.

But their motion centered on the assertion that much of the seized material contained presidential communications and was, therefore, shielded by executive privilege — a claim the Justice Department has yet to address directly. Executive privilege is usually invoked to shield communications from Congress or the courts, not another department of the executive government, such as the Justice Department. The Monday filing says only that the filter team has reviewed the documents for attorney-client privilege.

Trump's secrets: How a records dispute led the FBI to search Mar-a-Lago

Although Cannon, who was nominated to the bench by Trump in 2020, said she was inclined to appoint a special master, she also said her order “should not be construed as a final determination on Plaintiff’s Motion.”

Federal authorities took about two dozen boxes of materials from Mar-a-Lago during the search, including 11 sets of classified documents, several of them categorized as top secret. Avril Haines, the director of national intelligence, told lawmakers Friday that U.S. intelligence analysts will conduct a review of the classified materials to determine the potential risk to national security if their contents were disclosed.

Trump’s attorneys want a special master, essentially an outside expert, to return any items taken from their client’s property that went beyond the scope of the search warrant, and to set aside any material that should be shielded from government review because of executive privilege.

Neither the Trump filing nor the government’s brief response addresses the separate question of whether a special master, if appointed, could or should review the classified documents taken from Mar-a-Lago by the FBI.

Trump's Mar-a-Lago documents and the 'myth' of presidential security clearance

In her ruling Saturday, Cannon instructed the Justice Department to submit under seal a more detailed list of the materials taken by the FBI. She also asked for an update on the federal government’s review. The Justice Department said Monday that it would comply. Cannon has scheduled a hearing for Thursday on Trump’s request.

According to a partially redacted affidavit unsealed Friday, the agents who conducted the search of Mar-a-Lago were seeking all “physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation” of three federal laws, including a part of the Espionage Act outlawing gathering, transmitting or losing national defense information. The warrant also cites laws on destruction of records and concealment or mutilation of government material.

The search is part of a criminal probe into whether Trump and his aides took secret government papers and did not return all of them, despite demands from senior officials, and whether anyone obstructed government efforts to recover all of the classified material.

The Jan. 6 insurrection

Congressional hearings: The House committee investigating the attack on the U.S. Capitol held a series of high-profile hearings to share its findings with the U.S. public. What was likely to be the panel’s final public hearing has been postponed because of Hurricane Ian. Here’s a guide to the biggest hearing moments so far.

Will there be charges? The committee could make criminal referrals of former president Donald Trump over his role in the attack, Rep. Liz Cheney (R-Wyo.) said in an interview.

What we know about what Trump did on Jan. 6: New details emerged when Hutchinson testified before the committee and shared what she saw and heard on Jan. 6.

The riot: On Jan. 6, 2021, a pro-Trump mob stormed the U.S. Capitol in an attempt to stop the certification of the 2020 election results. Five people died on that day or in the immediate aftermath, and 140 police officers were assaulted.

Inside the siege: During the rampage, rioters came perilously close to penetrating the inner sanctums of the building while lawmakers were still there, including former vice president Mike Pence. The Washington Post examined text messages, photos and videos to create a video timeline of what happened on Jan. 6.

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