Florida federal judge Aileen Cannon has accepted Donald Trump’s request to appoint a “special master”, that is, a third and independent figure from the Justice Department to analyze the material seized in Mar-a-Lago by the FBI. The judge also banned the use of the material for “investigative purposes” until it was analyzed by the “special master”. This was reported by the Twitter account of Chris Geidner, a judicial journalist who works for the MSNBC network. Judge Cannon was nominated by Trump.
This is a win for the tycoon. The Justice Department objected, arguing that an outside legal expert is unnecessary, in part because department officials have already completed the scrutiny to identify documents covered by presidential privilege, the ones that Trump wants restitution. The decision could slow down the pace of the investigation, but is unlikely to have an impact on investigative decisions or the final outcome of the investigation.
Trump is being investigated for removing government documents from the White House, some of them marked as highly classified, after his departure in January 2021 and keeping them at his Mar-a-Lago home in Palm Beach. The Justice Department also said it is investigating a possible filibuster after the FBI uncovered evidence that Trump’s team may have deliberately hidden classified documents when agents tried to recover them in June. During the same June 3 meeting, Trump representatives falsely certified that they conducted diligent search and returned all classified material to the government – a claim that was later disproved after the FBI recovered some 33 boxes. containing more than 11,000 government documents and photos and more than 100 documents marked as classified.
Trump’s legal team waited up to two weeks after the FBI’s August 8 search before asking the court to appoint a “special judge”. A “special master” was used, for example, to examine the materials seized in the searches of the homes and offices of two former Trump lawyers, Rudy Giuliani and Michael Cohen. But Trump’s request was unique. Not only did his team want the special judge to review traditional client attorney material, but he also told Cannon that the special judge was appropriate because some of the documents could be subject to executive privilege, a legal doctrine that protects some White House communications.
The Justice Department has firmly opposed Trump’s request, saying he cannot claim executive privilege because the documents do not belong to him, but belong to the government. “He is no longer the president,” Jay Bratt, a lawyer with the Department of Counterintelligence, told Cannon during the September 1 hearing. “And since he’s no longer president, he didn’t have the right to take those documents.” The Justice Department also said there was no point in appointing a special judge because his filter team – a group of agents not part of the investigation – had completed its work. Agents have identified and set aside a limited number of documents that may be subject to professional secrecy. The rest of the documents have already been reviewed by the investigation team for the ongoing criminal investigation. At the same time, the Office of the Director of National Intelligence is already conducting a parallel review as part of a national security damage assessment.
Many former Justice Department prosecutors, both Democrats and Republicans, have criticized Trump’s request to appoint a special judge. Former Trump-appointed Attorney General Bill Barr called a special judge “a waste of time” in an interview with FoxNews. Even a group of former federal prosecutors who have all served in Republican administrations said Trump’s request is “unprecedented”, filed in an unjustified court and “manifestly frivolous.” However, at the September 1 hearing, Cannon signaled his willingness to grant the request. “Ultimately, what’s the harm of appointing a special director?” He asked.