During last month’s search of former President Donald Trump’s Mar-a-Lago home, a federal judge announced that she would release a detailed list of the FBI’s items, allowing us to understand better what documents might be among the seized materials.
In a hearing on Thursday, U.S. District Judge Aileen Cannon decided whether to appoint an outside party to review the Justice Department’s materials to determine if executive privilege and lawyer-client privilege make some of them inaccessible to investigators. In response to Mr. Trump’s request for a third-party review, she said she would issue a written order in due course.
As a result of the federal government’s handling of the investigation, Mr. Trump’s attorneys argued that the public had lost confidence in the probe’s integrity and transparency. They said that having a special master review documents would help put the issues raised by the case into proper context. Chris Kise, a former Florida solicitor general with GOP ties who recently joined the former president’s legal team, said we need to respectfully lower the temperature on both sides.
According to Jay Bratt, the Justice Department’s lead attorney on the case, the classified and presidential records seized did not belong to Trump but to the United States.
In the words of Mr. Bratt, chief of the Justice Department’s counterintelligence and export control section, “He is no longer the president.” Therefore, he had no right to take them since he was no longer president.
Last month, the Justice Department unsealed a limited inventory showing classified documents were removed from Mr. Trump’s private club but did not identify their subjects. Attorneys for Mr. Trump requested that any items seized that were not within the scope of the search warrant be returned along with a more thorough accounting.
Judge Cannon asked both parties whether they opposed unsealing a more detailed inventory on Thursday. After they said they didn’t, she said she would issue an order after the hearing.
There were complex legal arguments at the hearing regarding the appointment of a special master and issues of executive privilege and attorney-client privilege.
Another Justice Department attorney, Julie Edelstein, said Mr. Trump had “blatantly disregarded” the Presidential Records Act, which governs the handling of such records. She said the materials seized from Mar-a-Lago were not authorized to be stored anywhere on the property.
According to Edelstein, the appointment of a special master would interfere with the intelligence community’s review of potential damage resulting from improper storage of the documents. Likewise, she dismissed Mr. Trump’s lawyers’ privilege claims and their argument that naming a third-party reviewer was modest. In terms of executive privilege, it wouldn’t be modest, she said. This would be unprecedented.
Another of Mr. Trump’s attorneys, James Trusty, said the federal government had turned a dispute with the National Archives and Records Administration into a criminal investigation. As a result of the Justice Department’s actions, he said, “there’s a broader concern here for the institution of the presidency.”
In her remarks from the bench, Judge Cannon seemed open to the idea of appointing a special master, as she had indicated in an earlier order. In her questioning of government lawyers, she asked what harm would result from such an appointment. Additionally, she suggested that a special master could conduct an “orderly review” without interfering with the damage assessment U.S. intelligence agencies are conducting.