Judge halts prosecutors from using Trump Mar-a-Lago materials for criminal investigation

A judge blocked federal prosecutors from continuing their criminal investigation into former President Donald Trump’s handling of documents until a special master is appointed and has completed his or her work.

“The Court does not find that a temporary special master review under the present circumstances would cause undue delay” to the investigation, said Judge Aileen Cannon of the Southern District of Florida, granting Trump’s motion for a third-party review to look for privileged materials.

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Trump’s legal team argued its client’s constitutional rights were violated and that there may have been privileged documents among those taken by federal officials, and the former president is pursuing the appointment of a special master to review independently the evidence that the FBI seized from his Mar-a-Lago resort in Florida last month.

Cannon, a Trump appointee, granted Trump’s motion to appoint a special master “to review the seized property for personal items and documents and potentially privileged material subject to claims of attorney client and/or executive privilege.” The judge also noted the order does not stop the classification review and/or intelligence assessment by the Office of the Director of National Intelligence.

Trump is under investigation for possible violations of the Espionage Act and obstruction of justice over his handling of documents after leaving office, according to the unsealed search warrant. Trump claimed he declassified all the documents stored at Mar-a-Lago — the Justice Department said dozens of records and empty folders with classified markings were found — and the former president has denied any wrongdoing.

Attorney General Merrick Garland has said the Justice Department will speak about the search through court filings. An underlying affidavit, which was released with heavy redactions, said it sought authorization to search Trump’s office, storage rooms, and any other rooms where boxes or records may have been stored within the premises. A judge unsealed on Friday a detailed inventory of items seized from Trump’s estate.

The DOJ opposes a third-party review of the materials seized from Mar-a-Lago earlier this month by the FBI. In a filing, prosecutors said the “appointment of a special master is unnecessary and would significantly harm important governmental interests, including national security interests,” and “would impede the government’s ongoing criminal investigation.”

A government “filter team” has “already completed its work of segregating any seized materials that are potentially subject to attorney-client privilege, and the government’s investigative team has already reviewed all of the remaining materials, including any that are potentially subject to claims of executive privilege,” the DOJ filing added.

The judge on Monday asked both parties to confer and submit joint filings with a list of proposed special master candidates by Friday, as well as make proposals on duties and limitations.

It remains unclear how the Justice Department will respond to the judge’s ruling. Norm Eisen, a senior fellow at the Brookings Institution who served as counsel to House Democrats for the first impeachment and trial of Trump, said Cannon made the wrong ruling and encouraged the Justice Department to appeal.

More than 100 documents with classified markings were seized during the raid on Aug. 8, the DOJ divulged. Although Trump claimed he declassified all the documents stored at Mar-a-Lago, his legal team said it agrees with the government that “it would be appropriate for the special master to possess a Top Secret/SCI security,” that the court “should direct the parties to confer and submit a joint list of proposed candidates by September 7, 2022,” and that the special master “should be required to submit an affidavit concerning any potential bases for disqualification before this Court issues an appointment order.”

The Trump team also said the government should provide it and the special master with “a copy of the Seized Materials, a copy of the Search Warrant, and an unredacted copy of the underlying application materials. In light of the deficiency of the initial property inventory (inventory) unsealed by the Government, the Movant respectfully asks for access, even if under seal, to the recent submission by the Government that purports to better particularize the seized items and the location of their seizure. The special master should also have access to any other relevant materials, information, or individuals that are necessary to perform the assigned duties.”

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In what began as a National Archives and Records Administration effort to retrieve documents from Trump after he left office and led to a Justice Department investigation, classified documents have been obtained from Trump’s Mar-a-Lago resort, including what the government says are dozens of records with classification markings. A photo included as an exhibit in the DOJ filing last week showed a series of documents on a carpeted floor, some with “secret” or “top secret” marked on them. A box with a framed copy of the Time magazine Trump was on the cover of can also be seen in the photograph.

The Trump team on Wednesday accused the DOJ of having “significantly mischaracterized” a June meeting between Trump representatives and federal investigators and criticized prosecutors for “gratuitously” including the photograph of “allegedly classified materials, pulled from a container and spread across the floor for dramatic effect,” in its filing on Tuesday.