A federal judge in Florida ordered the appointment of a special master to review documents seized from Donald Trump’s Mar-a-Lago estate, preventing the Government from using the materials in a criminal investigation for the time being. However, the Department of Justice is allowed to continue to review documents.
Mr. Trump requested that the Court appoint an independent third party to review materials seized by federal agents on August 8 from a storage room and the former president’s office. Months of discussions between Trump representatives and the Government failed to satisfy authorities that all national-security documents had been transferred to the National Archives.
The order stated that Mr. Trump could assert claims of attorney-client privilege, which is available to any suspect, and executive privilege—that is, a president’s ability to shield internal conversations with his aides. The Government argued that a former president could not assert executive privilege claims against the executive branch whose processes the privilege was intended to protect.
The Labor Day order allowed intelligence officials to continue investigating potential national security damage caused by Mr. Trump’s decision to take highly sensitive documents to his private club.
This Court is mindful that restraints on criminal prosecutions are disfavored. However, the Court finds that these unprecedented circumstances call for a brief pause to allow for unbiased, third-party review to ensure a just process with adequate safeguards, said the order by U.S. District Judge Aileen Cannon.
The Government argued that Mr. Trump had no legal right to seek such a review. It was unnecessary because a separate Justice Department “filter team” had already identified materials that the attorney-client privilege could protect.
According to the order, the agents seized approximately 500 pages of material that may be subject to attorney-client privilege, including medical documents, tax correspondence, and accounting information. A separate team of agents searched Mr. Trump’s office and withheld some documents from investigators in order to determine whether they were attorney-client privileged.
The order issued on Monday directed the parties to consult and return to Court by September 9 with a list of candidates for a special master and a draft order defining the master’s responsibilities. Materials seized by the Government may continue to be reviewed and used for intelligence assessment and national security assessments, it stated.
The United States is reviewing the opinion and will consider appropriate next steps in the ongoing litigation, said Anthony Coley, a spokesman for the Justice Department. The Government could file an appeal with the 11th U.S. Circuit Court of Appeals in Atlanta.
Mr. Trump did not directly address the order in his statement, but he did say it takes ‘courage’ and ‘guts’ to fight a corrupt Department of Justice and the FBI. He has become increasingly critical of the investigation, including at a rally in Pennsylvania on Saturday night, where he called it “a travesty of justice that made a mockery of America’s laws, traditions, and principles.”
Judge Cannon’s order, issued in Fort Pierce, Fla., found no compelling evidence of callous disregard for Mr. Trump’s constitutional rights in the Government’s approach to the search, carried out after a federal magistrate judge in West Palm Beach approved a warrant last month. Nonetheless, Judge Cannon was acutely aware of the potential harm to Mr. Trump’s reputation if illegally seized materials were used to initiate criminal proceedings against him.
As a result of Plaintiff’s former position as President of the United States, Judge Cannon wrote, the subject seizure has a stigma all its own. A future indictment, based to any extent on property that should be returned, would result in reputational harm on a very different scale from that of a regular criminal defendant. Earlier in the proceedings, Judge Cannon indicated that she was inclined to grant Mr. Trump’s request for the special master.
According to Judge Cannon, the Justice Department and Mr. Trump disagree on whether certain materials are presidential, Government, or personal records—and which documents may have evidentiary value. She wrote that appointing a special master to resolve such issues would improve the “appearance of fairness” in the former president’s investigation.
According to her, the Supreme Court has left open the question of whether a former president can assert executive privilege against a successor administration.
In the past, presidents have used executive privilege to withhold information from Congress and the courts because secrecy is necessary to perform specific presidential duties. It has focused on communications between the president and his advisers, on the theory that the leader will receive the most candid advice if his conversations are kept private.
Prosecutors told Judge Cannon last week that a former president could not invoke executive privilege against the executive branch and that the ongoing investigation was not one of those circumstances even if he could. The seized materials, particularly those marked as classified, are critical to a criminal investigation into the handling of the records themselves, the Justice Department wrote.
Mr. Trump’s lawyers responded in a separate filing, citing a 2009 executive order that allowed a former president to assert executive privilege in connection with the release of records by the archives. The scheme of executive privilege ultimately benefits the Republic, the lawyers wrote.
It is not absolute, as with other such privileges. Prosecutors can defeat an executive privilege claim by demonstrating that the public interest in obtaining evidence in a particular criminal case outweighs the general principle of presidential confidentiality.
Judge Cannon expressed concern that the special master’s review would ultimately be of little benefit to Mr. Trump. She wrote that he “ultimately may not be entitled to the return of much of the seized property or to prevail on his anticipated claims of privilege.” For the time being, the circumstances surrounding the seizure in this case and the associated need for adequate procedural safeguards are compelling enough to move his case along.
The order does not halt the Justice Department’s entire criminal investigation into the documents, but it does prohibit investigators from using the seized documents for the time being.
Prosecutors have stated that the Government uses the materials “as it takes further investigative steps,” including guiding additional witness interviews. The order appears to halt those efforts, but given the small number of documents at stake, such a halt could last only a few weeks.
The Justice Department announced last week, less than one month after the search, that investigators had reviewed all of the seized documents except those identified as potentially attorney-client privileged by a separate team.
On August 8, federal agents seized 27 boxes of materials containing approximately 11,000 documents and 1,800 other items from a storage room and Mr. Trump’s office at Mar-a-Lago after months of discussions between the former president’s representatives, and the Government failed.