Feds see few cases of potentially privileged records from Mar-a-Lago raid
The Department of Justice said Monday that a “limited set” of materials potentially containing information covered by attorney-client privilege was found among the 20 boxes of documents seized earlier this month from former President Donald Trump’s south Florida home, Mar-a-Lago.
News of the development came in the department’s court-ordered response to Trump’s lawsuit seeking to appoint a neutral third party known as a special master to independently oversee the government’s privilege review of the seized materials.
Trump’s counsel filed the 27-page motion for judicial oversight on Aug. 22 and wrote four days later in a supplemental filing that they want U.S. District Judge Aileen Cannon to appoint a special master to oversee the government review “and/or to enjoin any further review of those materials by the Government until a Special Master is appointed.”
Cannon, who is a Trump appointee, issued an order over the weekend that directs the Department of Justice to publicly respond to Trump’s federal suit in the Southern District of Florida. In its filing Monday, however, the department notes that its privilege-review team already identified potential attorney-client privileged materials ahead of Cannon's order.
The privilege-review team “completed its review of those materials,” the department said Monday, “and is in the process of following the procedures set forth in … the search warrant affidavit to address potential privilege disputes, if any.”
According to the affidavit used in the search warrant application, which U.S. Magistrate Judge Bruce Reinhart approved on Aug. 5, the department describes the privilege-review team as law enforcement personnel “not participating in the investigation of the matter” who are on hand to assist if “a procedure involving potentially attorney-client privileged information is required.”
The team was also specifically assigned to search the “45 Office” at Mar-a-Lago on Aug. 8, according to the affidavit, which was partially unsealed last week.
The department pointed out in Monday’s filing that it is also working with the Office of the Director of National Intelligence on a classification review of the seized materials.
Meanwhile, two days ago, national intelligence chief Avril Hanes told Congress that her office is leading a community intelligence assessment regarding “the potential risk to national security that would result from the disclosure of these materials,” according to the filing.
But Trump’s counsel insists in the suit that the department’s privilege team is insufficient, and there are several red flags that implicate the 45th president’s Fourth Amendment rights “and cry out for judicial intervention by way of Special Master monitoring and discovery assistance.”
Because the seized documents were created while Trump was still the president, Trump’s counsel argues they are “'presumptively privileged’ until proven otherwise.’”
“With the conclusion that the materials seized from the Movant are all presumptively privileged, it is unreasonable to allow the prosecutorial team to review them without meaningful safeguards,” Trump’s counsel wrote.
The complaint points to a 2019 Fourth Circuit opinion involving a Baltimore Law Firm, in which the circuit found that a federal magistrate approved a filter protocol without conducting “appropriate adversarial proceedings, which would have allowed the defense to advocate for proper safe guards.”
Trump’s counsel suggests that “here, too,” Magistrate Reinhart approved the government’s filter protocol “without input from the defense.”
“The result is a protocol that is plainly ineffective — it simply does not ensure that prosecution team members will not access or become aware of privileged materials particularly as the filter team's leader is a deputy to the lead prosecutor in this matter,” the complaint states.
When the issue at hand implicates not only the former president’s constitutional rights “but also the preservation of executive privilege," Trump’s counsel calls it unacceptable to implement “merely adequate safeguards.”
The Department of Justice said it will provide more detail about the review for the court in another supplemental filing ahead of Thursday’s hearing.