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Dearie asks Trump lawyers whether they believe FBI lied about seized documents

Order by Mar-a-Lago special master is the first time Donald Trump’s attorneys have been asked to confirm or deny his claims in court

Partially redacted documents with classified markings, including colored cover sheets indicating their status, that FBI agents reported finding at Trump's office in Mar-a-Lago. (Courtesy of Department of Justice)

The Mar-a-Lago special master on Thursday ordered Donald Trump’s lawyers to state in a court filing whether they believe FBI agents lied about documents seized from the former president’s Florida residence in a court-authorized search last month, or claimed to have taken items that were not actually in Trump’s possession.

In a Thursday afternoon filing, U.S. District Judge Raymond J. Dearie — the special master — told Trump’s legal team to state by Sept. 30 whether they believe any of the seized items were incorrectly described in the Justice Department’s 11-page inventory list, which said some of the documents were highly classified.

Dearie also told them to say whether they are claiming that any items on the inventory list were not in fact taken from the premises.

The Post's Perry Stein explains how a special master will identify if any documents seized by the FBI are protected by attorney-client or executive privilege. (Video: The Washington Post)

Trump has said on social media and in television interviews that the FBI planted items when they searched his Mar-a-Lago residence and private club on Aug. 8. He also claimed to have declassified documents found in that search that were marked classified and were highly sensitive. His lawyers have not made similar assertions in court, however, instead saying they have not reviewed the seized materials and are unable to confirm whether the government’s inventory list is accurate.

Dearie’s order, in essence, demands that Trump’s lawyers back up their client’s claims. “This submission shall be Plaintiff’s final opportunity to raise any factual dispute as to the completeness and accuracy of the Detailed Property Inventory,” he wrote.

At a hearing Tuesday, Dearie pressed Trump’s lawyers to take a position on whether the classified documents were, as Trump has said, declassified, but they demurred.

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Dearie’s approach is strikingly different from how Judge Aileen M. Cannon — the Florida-based district court judge who granted Trump’s request to appoint a special master earlier this month — has handled her part of the case.

Cannon never asked Trump’s attorneys to explain why they thought the inventory list might be inaccurate or why they implied that some of the documents that were labeled as classified were not actually classified.

In his order, Dearie gave the government — which is investigating the potential mishandling of classified information at Mar-a-Lago — until Monday to submit a statement declaring whether its inventory list is a full and accurate representation of what was seized. The government must also later respond to any factual disputes that Trump’s team raises in its filings.

Cannon appointed Dearie to review the roughly 11,000 documents seized from Mar-a-Lago and determine whether any should be shielded from criminal investigators because of claims of attorney-client privilege or the far more vague and disputed assertion of executive privilege.

Her order barred the Justice Department from accessing the classified documents for its criminal probe until they were reviewed. But the Justice Department successfully appealed that part of the decision; the U.S. Court of Appeals for the 11th Circuit ruled late Wednesday that the classified material should not be part of the special master review and that the FBI could use it.

Trump’s team could appeal that decision to the Supreme Court.

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Dearie’s Thursday order said Trump’s attorneys and the government should review the nonclassified documents on a rolling basis, with Trump’s team reviewing them first and marking any that it thinks are privileged. The Justice Department would then note whether it agrees with that assertion, and Dearie would settle any disagreements between the two parties.

They must submit all the documents to Dearie by Oct. 21 — more than a month ahead of the Thanksgiving deadline that Cannon set for the special master review. Trump’s lawyers said at a hearing Tuesday in Dearie’s Brooklyn courthouse that they believed his proposed schedule would not allow them enough time to thoroughly search through all the documents.

Dearie also said in his Thursday order that James Orenstein, a former U.S. magistrate judge for the Eastern District of New York, would help him with the review. He said Orenstein has served on the Foreign Intelligence Surveillance Court and holds top-secret government clearance, which means that he would theoretically be able to review many of the seized classified documents if required.

Read special master Raymond Dearie's Sept. 22 order

Orenstein is most known for a 2015 case in which he determined that prosecutors did not have the legal authority to force Apple to help investigators bypass the passcode feature on a drug dealer’s iPhone.

Dearie said he expects to use court staff from the Eastern District of New York to help him with his special master duties.

Trump’s team proposed Dearie to be the special master — and the government agreed he would be a suitable choice. Cannon then appointed Dearie, ordering Trump’s legal team to cover the costs.

Since Dearie is still an active federal judge, he said in his Thursday filing, he does not plan to charge Trump for his work in this review. But he proposed that Orenstein be paid $500 per hour.