Special master for documents taken from Trump’s Mar-a-Lago could complicate the case

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A federal judge’s indication that she’s willing to appoint a special master to review documents seized at Mar-a-Lago by federal agents could present new complications and unresolved legal issues in the high-stakes quest. of the federal government to wrest control of documents from former President Donald Trump.

U.S. District Judge Aileen M. Cannon’s two-page order issued on Saturday seemed unusual in that the judge has yet to hear arguments from the Justice Department, former federal prosecutors and analysts said Sunday. legal.

Cannon, 41, who Trump nominated to the bench for the Southern District of Florida in 2020, also gave federal officials until Tuesday to provide the court with a more detailed list of items the FBI had removed from Trump’s estate. in Florida on August 8.

She asked the government to report on the status of its own review of the documents and to schedule a hearing Thursday in West Palm Beach, Florida. This location is about an hour from the federal courthouse in Fort Pierce, Florida, where she typically hears cases.

Yet his decision left unclear how a special master would operate and who might be qualified to take on such a role in a case involving classified national security secrets.

“It’s going to have to be someone with expertise and experience in classified information and national defense. These people don’t grow on trees,” said Stanley M. Brand, a defense attorney who focuses on representing clients involved in government investigations. “They are either former members of the government or lawyers with extensive experience in these matters. But it will also be a contested issue. Again, we are at the border.

Legal experts said the very arrangements Cannon requested from the Justice Department before the hearing could render the need for a special master moot by the time the parties appear before the judge. For example, federal prosecutors might indicate that the government review is nearly complete. And it can provide such an accurate accounting of seized documents that the judge could self-assess whether they belong to the government.

“There has already been a team looking at this for almost three weeks now. You don’t collect these things to just lay there and not start. There’s public pressure on them,” said Mary McCord, who served as the acting assistant attorney general for national security during the Obama administration.

The government could signal that it is well advanced in its review, she added, returning an assessment by a special master too late.

“So you can’t put the milk back in the bottle,” McCord said. “In fact, she didn’t tell them to stop, so they could keep investigating until she made a decision.

The official inventory says authorities removed more than two dozen boxes of documents during the search, including 11 sets of classified documents, some of which were classified as top secret.

Trump’s secret papers and the presidential security clearance ‘myth’

Cannon’s hearing is proceeding independently of the search warrant authorization process, which was signed by U.S. District Judge Bruce E. Reinhart.

On August 22, Trump’s legal team specifically filed its request that the court appoint a special master in a location separate from Reinhart’s. His lawyers argued that the named person should sift through documents seized by the FBI and set aside anything that should be shielded from government scrutiny because of executive privilege.

Analysts have pointed out that such a figure – potentially a retired judge or a lawyer with specific expertise on executive privilege – would not be responsible for determining the legality of the FBI’s search at Mar-a-Lago on August 8. or the validity of the search warrant. affidavit, a redacted version of which was released Friday on Reinhart’s orders.

Mar-a-Lago redacted affidavit released

But Brand pointed out that the presence of a special handler could complicate the case if that person were to come into conflict with the Justice Department’s own “screening team” – also known as the “contamination team”. officials unrelated to the primary investigation who are responsible for ensuring that investigators do not see information to which they are not entitled and which could taint the case.

“The question for me is, what if the Special Master takes a different stance than the Corruption Squad? How does that get resolved?” the brand said. He also asked how the court battle might unfold. given that two judges – Reinhart and Cannon – now have jurisdiction over different aspects of FBI research.

Such uncertainties, Brand said, could work in Trump’s favor “because to the extent that it gets caught up in a jumble of litigation, like so many things going on around him, it’s to his advantage.”

The document battle has been going on for months. Trump aides turned over some documents to the National Archives and Records Administration in January. But federal authorities, after determining that 184 of them were classified, became alarmed that the former president was hiding more sensitive documents that could compromise national security if they fell into the wrong hands.

Trump and his advisers have defended his actions by saying he has a permanent declassification order for documents brought to his residence, although there is no written record of such a directive and some former Trump aides disputed the idea.

Cannon, who earned her bachelor’s degree from Duke University and graduated from the University of Michigan Law School, served from 2013 to 2020 as an assistant U.S. attorney in the Southern District of Florida. She worked for Judge Steven M. Colloton, who was appointed by President George W. Bush to the United States Court of Appeals for the 8th Circuit.

Former Justice Department official Andrew Weissmann, who served as lead prosecutor in the Robert S. Mueller III special counsel investigation, said it was unclear whether the Cannon court should maintain jurisdiction in the matter since the records in question have been returned to the National Archives in Washington and are no longer in South Florida.

He said that although special masters have been assigned to civil cases to review attorney-client privilege issues, it is virtually unheard of for such a figure to be asked to assess executive privilege claims – especially since Trump is no longer president and seems to have no standing for such a claim.

“The DOJ has a lot of work to do to not only define a particular position on a special master, but also to elucidate [Cannon] on solicitor-client and professional secrecy issues,” Weissmann said.

Yet, he said, the Trump team, by searching for the special master in a 27-page court filing last week, opened the door for Justice Department prosecutors to address, in public, not only the legal arguments raised by the former president, but also the factual inaccuracies.

The Justice Department has generally refrained from commenting on ongoing investigations. But Attorney General Merrick Garland held a press conference after the FBI raid to say he had authorized the operation and to defend the federal agents in the face of hostile criticism and physical threats from some Trump allies and supporters.

“This is not a situation where you have to worry about how far to push the envelope at a press conference,” Weissmann said. “This is a filing and the court is directly requesting a response to a filing.”

Maryland Gov. Larry Hogan (R) and New Hampshire Gov. Chris Sununu (R) reacted Aug. 28 to redactions in the affidavit to search former President Trump’s home. (Video: The Washington Post)

The struggle over documents has injected another flashpoint into the country’s political debate, less than 75 days before the 2022 midterm elections.

New Hampshire Gov. Chris Sununu, who has been an outspoken critic of Trump and a rumored Republican 2024 presidential candidate, suggested without evidence that the timing of the Mar-a-Lago search was intended to help the Democrats in the midterm elections.

“Former President Trump has been away for two years now,” Sununu said on CNN’s “State of the Union.” “We think it’s a coincidence, happening just a few months before the midterm elections?”

On Sunday, Rep. Adam Kinzinger (R-Ill.), who has publicly challenged Trump and much of the GOP for years, said it was hypocritical for members of his party to defend the former president after some of them “spent years chanting ‘lock her up’ about Hillary Clinton because of certain emails.

On NBC’s “Meet the Press,” Kinzinger pointed out that lawmakers would never have been allowed to remove classified information from the specialized, secure government facilities where it is typically viewed.

“If any of us intentionally walked out with even one document…and our organization came to us and said you had to return that document and we refused to do it for years, we would have real problems,” Kinzinger said.

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