Former President Donald Trump.Jabin Botsford/The Washington Post via Getty Images
A federal judge put off ruling on Trump’s request for a special master and said she needs more time to consider.
But she elected to unseal some additional records related to the Mar-a-Lago search.
Judge Aileen Cannon said she would unseal a status report about the DOJ’s investigation and a more detailed inventory list of items the FBI seized.
US District Judge Aileen Cannon heard arguments Thursday related to former President Donald Trump’s request that a special master be appointed to sift through and filter out any materials seized in the Mar-a-Lago search that could be privileged.
After the nearly two-hour hearing, Cannon said she would not yet rule on Trump’s request and wanted to take more time to consider national security and privilege issues raised by the Justice Department and the former president’s defense lawyers.
But she did rule to unseal a status report from the team investigating Trump’s handling of national security information, as well as a more detailed inventory list of items the FBI seized from its Mar-a-Lago search.
Cannon kept under seal a status report from the filter team responsible for sifting through materials seized from Mar-a-Lago after lawyers for both Trump and the government agreed that the document should remain out of the public view.
Chris Kise, who recently joined Trump’s defense team, had argued that the judge was in a “challenging” and “unique position” to “help restore public confidence” in the DOJ. He added that the “temperature is very high on both sides,” and there’s also a “significant lack of trust between both parties.”
Kise also downplayed the legal and national security risks of Trump moving records from the White House to Mar-a-Lago after leaving office, saying the documents were stored “at a location that was used frequently during his time in office.”
James Trusty, another defense attorney on Trump’s team who previously served as a federal prosecutor, said it was “extraordinary” for the government to push back on the appointment of a special master.
Trusty also referenced the DOJ’s argument that the appointment of a special master would “significantly harm” the US’s national security interests given the sensitivity of the documents recovered from Mar-a-Lago.
“What is the harm that they are worried about?” he said. “What possibly could justify this kind of vehement objection and rejection of Fourth Amendment law,” which relates to the search and seizure of individuals’ property.
“I would suggest to the court that all we are talking about today is a very modest step,” Trusty said, before Cannon interjected.
“To do what, exactly?” the judge asked.
Trusty reiterated the request for a special master and pointed to attorney-client and executive privilege concerns.
When the government was up, Jay Bratt, the DOJ’s top counterintelligence official, reiterated the DOJ’s position that Trump is not entitled to a special master because he does not have a “possessory interest” in the materials that were seized as they are the government’s records.
Julie Edelstein, a deputy chief in the DOJ’s counterintelligence division, doubled down on Bratt’s argument, saying the records seized from Mar-a-Lago “were not [Trump’s] at the time the search warrant was authorized and the search occurred and he does not have a property interest in those records.”
She also said it would be “unprecedented” for Trump, as the former president, “to be allowed to assert privilege against the executive branch.”
Edelstein pointed as well to the national security concerns associated with the documents recovered from Mar-a-Lago.
Some materials FBI agents found were “some of the most highly classified” documents and “there was no place that was authorized for the storage of those records” after Trump left office, Edelstein said.
She also noted that the Office of the Director of National Intelligence is currently spearheading a review of the intelligence and national security risks that could come from the disclosure of information contained in the Mar-a-Lago records.
But Cannon pushed back on the government’s arguments, pointing to the unprecedented nature of the FBI searching a former president’s home, and raising the possibility of a special master working in conjunction with the DNI’s office.
Cannon also later pressed the former president’s counsel on why they wouldn’t wait to challenge the results of the search in a future proceeding given that no charges have been filed, to which Trusty responded that they had the right to challenge the “preliminary” search. Cannon pushed back, asking why Trump’s team then waited two weeks to file their lawsuit.
“Part of that I don’t think I can disclose,” Trusty said, adding that they were “effectively exploring whether we were going to have a level of cooperation that would allow us not to have to run to the court for assistance.”
The Justice Department also revealed on Thursday that a government filter team had determined after an initial review that roughly 500 pages out of the records seized from Mar-a-Lago could be covered under attorney-client privilege but that a secondary review would likely result in a smaller set of documents being protected.
Prosecutors emphasized that the filter team took attorney-client privilege concerns “very seriously” and “applied a very broad and expansive criteria” to make sure the government did not get access to material that could be protected.
Any document that appeared legal or had an attorney’s name on it was set aside, DOJ lawyer Benjamin Hawk said, adding that the filter team was “over-inclusive and erred on the side of caution.” The initial review found that 520 pages, some of which were copies, could be potentially privileged.
A second team of attorneys then began reviewing those pages in order to determine if they were “actually privileged in nature” because such a broad set of criteria had been applied in the initial review, Hawk said. But the department put a pause on the process to give the court time to consider the issue, he added.
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