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Judge poised to rule in Trump special master lawsuit
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Judge poised to rule in Trump special master lawsuit

U.S. district judge presiding over matter was appointed to federal bench in 2020 by then-President Trump

  • Former President Donald Trump at an event in Texas in January, 2021.
    Shealah Craighead/Trump White HouseFormer President Donald Trump at an event in Texas in January, 2021.

A federal judge chose to hold off on deciding whether to appoint a special master in the government review of materials seized from the home of former President Donald Trump after hearing arguments in the case on Thursday.

U.S. District Judge Aileen Cannon signaled last weekend that she was inclined to grant Trump’s request but stopped short of doing so during the hearing.

Trump’s counsel argued that a special master, or neutral third party, is needed to conduct an independent review of the seized materials to make sure personal items and any records protected by attorney-client privilege or executive privilege are returned.

But the government argued a special master is unnecessary and would only interrupt its ongoing criminal investigation involving the seized materials.

According to records unsealed by the court last month, the FBI took about 20 boxes of documents, including 11 sets of classified records, from Mar-a-Lago on Aug. 8. Among the seized materials were the grant of clemency to the former president's close ally Roger Stone, binders of photos and what is described as “info re: President of France.”

Thursday’s hearing in the Southern District of Florida centered on Trump's Aug. 22 motion for judicial oversight of the government’s review of the records.

Three attorneys argued on behalf of the former president. According to reporting on the hearing by Politico, they repeatedly highlighted the historic nature of the government's criminal probe into a former president.

“This is not a case about some Department of Defense staffer stuffing military secrets into a bag and sneaking them out in the middle of the night,” Trump attorney James Trusty reportedly said.

Meanwhile, government attorneys are said to have insisted that appointing a special master would significantly harm their ongoing criminal investigation, noting that the warrant was approved by U.S. District Judge Bruce Reinhart under the valid auspices of “evidence of three significant federal crimes.”

According to the search warrant application unsealed last month, the search was related to potential violations of three criminal statutes: willful retention of national defense information, concealment or removal of government records and obstruction of a federal investigation. 

As the Department of Justice sees it, Trump’s request to appoint a special master is needless at this point because the government’s own Privilege Review Team has already reviewed the materials and set aside what they thought could be subject to attorney-client privilege.

“It would do little or nothing to protect any legitimate interests that Plaintiff may have while impeding the government’s ongoing criminal investigation, as well as the Intelligence Community’s review of potential risks to national security that may have resulted from the improper storage of the seized materials,” the government wrote in a court filing.

And the 11 sets of classified records seized from Trump’s 12-acre estate, they argue, do not belong to him because they are property of the federal government.

Trump’s counsel, however, insists that because the seized top-secret documents were created while Trump was still the president — they are “'presumptively privileged’ until proven otherwise.’” The former president has also claimed in recent weeks that he “declassified” the highly sensitive materials.

The department’s privilege team is insufficient, according to Trump’s suit, 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.”

According to the affidavit used in the search warrant application, the department described the privilege-review team as law enforcement personnel “not participating in the investigation of the matter” who were on hand to assist if “a procedure involving potentially attorney-client privileged information is required.”

If Judge Cannon ends up granting Trump’s request for a special master, the government asked that she only allow a reviewer access to the “limited set” of materials the government’s privilege-review team identified as potentially subject to attorney-client privilege. 

Cannon, 41, served as an assistant U.S. Attorney in Florida before then-President Trump nominated her to the federal bench in 2020. The Senate later confirmed her appointment in a 56-21 vote.

It is not clear when she will issue a ruling.

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