A federal judge will appoint a special master to sift through nearly 13,000 documents and items the FBI seized from Donald Trump’s Florida residence and identify any that might be protected by attorney-client or executive privilege, according to a court order posted Monday.
But she ruled that the Office of the Director of National Intelligence may continue its analysis of the possible risk to national security posed by the removal from government custody of classified documents, some of them related to highly sensitive government and intelligence secrets.
Legal experts noted that the Justice Department can still interview witnesses, use other evidence and present information to a grand jury while the special master examines the seized material.
In her 24-page order, Cannon sided with Trump’s legal team and said the former president does retain some executive privileges after leaving office — a stance that the Justice Department disagrees with. She also argued that Trump has interest in some of the property that was seized, noting that the Justice Department has said it took some of Trump’s personal materials that were mixed with the government documents.
“The Court hereby authorizes the appointment of a special master to review the seized property for personal items and documents and potentially privileged material subject to claims of attorney-client and/or executive privilege,” her ruling states.
The judge, who was appointed to the federal bench by Trump in 2020, gave the government and Trump’s legal team until Sept. 9 to jointly submit a list of people she could appoint as a special master. Such outside experts are relatively rare. In this case, the special master would probably need top-secret security clearance.
The Justice Department may appeal Cannon’s ruling. Spokesman Anthony Coley said Monday afternoon that the government “is examining the opinion and will consider appropriate next steps in the ongoing litigation.”
Representatives for Trump did not immediately respond to requests for comment.
In addition to identifying whether any of the documents should be shielded from prosecutors because of attorney-client or executive privilege, Trump’s lawyers have said a review by a special master would boost “trust” in the Justice Department’s criminal investigation over the possible mishandling of classified documents after Trump left the White House.
In her order, Cannon said the appointment of a special master was necessary “to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented.”
For months before the Aug. 8 FBI search, the National Archives and Records Administration and the Justice Department tried to get Trump to hand over all White House and presidential documents still in his possession, according to court filings in the case.
Lawyers for Trump told the government in response to a May subpoena that everything had been returned. But the search last month yielded an additional 27 boxes containing a mix of personal items and classified and unclassified government material.
Trump and his lawyers and allies have accused the Justice Department of having political motives in conducting the investigation and of unnecessarily escalating it into a criminal probe. Attorney General Merrick Garland has declined to discuss the investigation, in keeping with general Justice Department practice. But he said days after the Aug. 8 search of Mar-a-Lago that “upholding the rule of law means applying the law evenly without fear or favor. Under my watch, that is precisely what the Justice Department is doing.”
While the FBI search of Trump’s Florida residence and club has drawn strong condemnation from the former president and his Republican allies, some Republicans have said the action might have been necessary.
In an interview that aired Friday, former Trump attorney general William P. Barr said there is no reason classified documents should have been at Mar-a-Lago after Trump was out of office.
“People say this was unprecedented,” Barr said in an interview with Fox News. “But it’s also unprecedented for a president to take all this classified information and put them in a country club, okay?”
In opposing the appointment of a special master, Justice Department lawyers told Cannon they had already sorted through the documents, using a “filter team” to separate out more than 500 pages of potentially privileged documents. That arrangement was approved by the U.S. magistrate judge who authorized the Mar-a-Lago search warrant.
Prosecutors said appointing a special master would be pointless given the filter team’s review, but Cannon disagreed. They also said that there was no legal basis to appoint a special master in this case, arguing that the filter team had weeded out documents potentially covered by attorney-client privilege, and that executive privilege generally cannot be invoked by a former president — and cannot apply to shielding material from the Justice Department, which like the White House is part of the executive branch.
Prosecutors also said Trump had no right to possess White House documents once he left office.
Cannon acknowledged in her ruling that the government has already examined all the seized materials. But she noted that the Justice Department has said that the review is not “a single investigative step but an ongoing process in this active criminal investigation.”
On executive privilege, she wrote that the Justice Department “arguably overstates the law,” citing a recent Supreme Court opinion involving Trump that said former presidents must be able to invoke the privilege for communications that occurred during their presidency. The Supreme Court agreed with a lower court decision and rejected Trump’s request to block the release of some of his White House records to a congressional committee investigating the Jan. 6, 2021, attack on the U.S. Capitol.
“Even if any assertion of executive privilege by Plaintiff ultimately fails in this context, that possibility, likely, does not negate a former President’s ability to raise the privilege as an initial matter,” Cannon wrote. “Accordingly, because the Privilege Review Team did not screen for material potentially subject to executive privilege, further review is required for that additional purpose.”
David S. Weinstein, a Miami-based attorney at the Jones Walker law firm and former chief of public integrity in the Justice Department’s South Florida office, said that while Cannon’s ruling could slow the investigation, it’s not automatically a win for Trump.
Weinstein noted that the judge did not rule on whether any of the documents would be protected by executive privilege — only that Trump had the right to argue that they were potentially covered by this privilege. He said the special master would sort through the materials and set aside items that he or she thinks could be protected. Cannon could then ultimately decide that some or none of it is protected.
“What this says is, I’m putting the brakes on this. I’m putting a pause on this,” Weinstein said. “It may come out as a big loss for the former president.”
Still, inherent in Cannon’s ruling is that Trump has rights to make claims in this investigation that an ordinary citizen would not. Richard Serafini, a South Florida criminal defense attorney and a former Justice Department criminal division attorney, said the judge’s ruling could complicate the government’s argument that Trump cannot invoke any executive privilege.
“Potentially it is a big deal,” he said. “It seems to recognize that a former president has a possessory interest in terms of documents.”
While Cannon largely sided with Trump in her decision, she also wrote that “there has not been a compelling showing of callous disregard for Plaintiff’s constitutional rights” — disagreeing with an argument that Trump’s lawyers made in court last week.
Still, she determined, Trump is “at risk of suffering injury” from the government taking documents that may be protected by attorney-client or executive privilege. Because his team does not know exactly what the government took, she said, it has been unable to effectively make potential arguments about what materials he may have had rights to possess, the judge said.
“Plaintiff ultimately may not be entitled to return of much of the seized property or to prevail on his anticipated claims of privilege,” Cannon wrote. “That inquiry remains for another day. For now, the circumstances surrounding the seizure in this case and the associated need for adequate procedural safeguards are sufficiently compelling to at least get Plaintiff past the courthouse doors.”