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Special master for seized Trump records seen as minor setback for feds
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Special master for seized Trump records seen as minor setback for feds

'There is no chance all of the documents found at Mar-a-Lago are protected by the attorney-client or executive privileges,' one legal expert said.

A federal judge in Florida has appointed a semi-retired New York federal judge as special master to review records seized from former President Donald Trump’s home and denied the government’s request to keep using them in its investigation, causing a delay that one legal expert sees as only a minor setback.

Former federal prosecutor Neama Rahmani told Courthouse News on Friday that Senior U.S. District Judge Raymond Dearie’s appointment will not affect the Department of Justice’s investigation into national defense information stored at Trump’s south Florida resort home, “aside from delaying it.”

“There is no chance all of the documents found at Mar-a-Lago are protected by the attorney-client or executive privileges,” Rahmani said.

As a neutral third party, Dearie will be tasked with reviewing the thousands of documents seized during the FBI’s Aug. 8 raid on Trump’s estate to make sure personal items and any records protected by attorney-client privilege or executive privilege are returned.

The former president brought the motion for judicial oversight last month and U.S. District Judge Aileen Cannon, a Trump appointee, granted his request for a special master last week – prompting swift appeal to the 11th Circuit by the Department of Justice, which also filed a motion to stay part of her order.

The department argued in its motion that investigators should be allowed to continue using the roughly 100 documents identified as classified by the government in its criminal probe while the appeal plays out in court.

Government attorneys insisted pausing the probe would cause irreparable harm and that classification markings on the seized documents establish that they are government property, not Trump’s personal records.

But Cannon disagreed in her 10-page order on Thursday.

“Indeed, if the Court were willing to accept the Government’s representations that select portions of the seized materials are—without exception—government property not subject to any privileges, and did not think a special master would serve a meaningful purpose, the Court would have denied Plaintiff’s special master request,” the judge wrote.

She said the DOJ also failed to provide concrete examples of potential harm it may face without access to the purportedly classified documents and instead relies “heavily on hypothetical scenarios and generalized explanations that do not establish irreparable injury.”

“This restriction is not out of step with the logical approach approved and used for special master review in other cases,” according to Cannon, who said it is “often with the consent of the government.”

“And it is warranted here to reinforce the value of the Special Master, to protect against unwarranted disclosure and use of potentially privileged and personal material pending completion of the review process, and to ensure public trust,” she wrote.

In appointing Dearie, who was suggested by Trump’s legal team and unopposed by the government, Cannon wrote that she will direct him to prioritize review of the purportedly classified documents sought by the Justice Department. Dearie is a former chief federal judge for the Eastern District of New York who is semi-retired with senior status at the Brooklyn federal court.

As Rahmani sees it, the classification dispute is a “red herring” that will not impact potential charges under the Espionage Act or Presidential Records Act.

He pointed out that Cannon’s ruling requires Dearie to resolve any privilege disputes by November, “if the 11th Circuit Court of Appeals doesn’t step in before then.”

“Attorney General Merrick Garland will then need to make the ultimate decision of whether to charge Trump or not,” Rahmani said.

Trump is under investigation for removing government records from the White House at the end of his single term as president on Jan. 20, 2021, and storing them at his 12-acre Mar-a-Lago estate in West Palm Beach. 

According to the FBI affidavit unsealed last month, agents obtained a warrant to search his home based on probable cause “that evidence of obstruction will be found.”

Trump, for his part, denies any wrongdoing and he told "The Hugh Hewitt Show" on Thursday that his indictment would result in “problems.”

“I think you’d have problems in this country the likes of which perhaps we’ve never seen before,” he said during the radio interview. “I don’t think the people of the United States would stand for it.”

Trump said a potential indictment wouldn't stop him from running for president again in 2024 if he decides to launch another campaign.

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