A federal judge on Thursday deferred a ruling on former President Donald Trump’s request for an independent review of records seized from his Florida home by the FBI during a search last month.
Trump’s lawyers last week asked U.S. District Court Judge Aileen Cannon of the Southern District of Florida to appoint a special master to determine if the documents contain any privileged material that should be returned to the former president.
The Justice Department opposed the request, saying it has conducted its own review of the materials and that appointing a special master would impede its investigation into Trump’s handling of classified records. A special master is an independent third party who is appointed by a court in sensitive cases to review materials potentially covered by attorney-client or other privilege to ensure investigators do not improperly view them.
Cannon indicated last weekend that she was inclined to grant Trump’s request, but after hearing arguments by Trump lawyers and government prosecutors, she said she would issue a ruling “in due course.”
At issue is the status of more than 100 classified documents found during the FBI’s search of Trump’s Mar-a-Lago estate as part of a federal investigation into how government documents ended up there.
Under the Presidential Records Act, Trump was required to hand over his White House records to the National Archives at the end of his term in office in January 2021.
The FBI is investigating potential crimes in connection with Trump’s retention of the documents, including violations of a part of the Espionage Act that makes it a crime to gather, transmit or lose national defense information.
The investigation began after Trump’s representatives sent 15 boxes of materials to the National Archives in January 2022, almost a year after he left office, and the government records agency alerted the Justice Department that they had identified more than 100 classified documents.
Seeking to prevent the FBI from examining the trove of documents found at Mar-a-Lago, Trump’s lawyers last week asked Cannon to appoint a special master, claiming the documents may be subject to attorney-client privilege or executive privilege.
The Justice Department opposed the request in a 36-page court filing on Tuesday, saying its privilege review team had identified a small number of documents subject to that attorney-client privilege.
On Thursday, DOJ lawyers said in court that the team had found 64 sets of potentially privileged materials that amounted to more than 500 pages.
The Justice Department has said the records kept at Mar-a-Lago included documents classified as top secret and special access program.
The U.S. intelligence community is conducting a damage assessment of Trump’s retention of the documents, and the Justice Department says appointing a special master would “significantly harm important governmental interests, including national security interests.”
Rejecting Trump’s claim of executive privilege over the documents, the Justice Department said the documents belong to the government, and as a former president, he has no right to keep them.
Any independent review of the documents, the Justice Department said, should be limited to attorney-client privilege and completed by September 30.
In its Tuesday filing, the Justice Department said that it obtained a search warrant for Trump’s residence after learning that government records “were likely concealed and removed” from a storage area at Mar-a-Lago and that “efforts were likely taken to obstruct the government’s investigation.”
Trump’s legal team pushed back on Wednesday.
Calling the search “unprecedented, unnecessary and legally unsupported,” the Trump lawyers accused the Justice Department of mounting “an all-encompassing challenge to any judicial consideration, presently or in the future, of any aspect of its unprecedented behavior in this investigation.”
The government, they said, “has filed an extraordinary document with this Court, suggesting that the DOJ, and the DOJ alone, should be entrusted with the responsibility of evaluating its unjustified pursuit of criminalizing a former President’s possession of personal and Presidential records in a secure setting.”
What the FBI found during the search, they wrote, “was to be fully anticipated.”
“Simply put, the notion that Presidential records would contain sensitive information should have never been cause for alarm,” the Trump legal filing said.
In the weeks since the August 8 search of his residence, Trump has taken to his social media platform, Truth Social, to claim that the action was politically motivated.