Judge Picks Special Master In Mar-A-Lago Case—And Rejects DOJ’s Request To Exclude Classified Documents


Retired Judge Raymond Dearie will serve as a special master to review documents seized by the FBI from Mar-A-Lago last month, a federal judge ordered Thursday, turning down the Department of Justice’s request to let prosecutors pore through classified documents while Dearie conducts a review that’s expected to wrap up by late November—though the DOJ is expected to appeal the decision.

Key Facts

U.S. District Judge Aileen M. Cannon appointed Dearie after former President Donald Trump’s legal team recommended him for the job and the DOJ said he was a satisfactory choice.

The DOJ had asked Cannon to exclude about 100 classified records from an earlier order barring prosecutors from using any of the seized Mar-A-Lago records until a special master—or a court-appointed third party who reviews the documents for privileged materials—can finish his work.

Trump’s attorneys argued that the court should not grant the DOJ’s request, claiming the government can’t say if all the documents marked as classified actually were, because Trump could have declassified them—but the filing did not say whether or not he actually did.

Cannon sided with Trump on whether to include classified records in the review, writing that she “does not find it appropriate to accept the Government’s conclusions on [classified documents] without further review by a neutral third party in an expedited and orderly fashion.”

The judge, whom Trump appointed, directed Dearie to review all the documents seized and filter out materials that are potentially covered by either attorney-client privilege or executive privilege—with classified materials being prioritized—and said Trump’s attorneys will review the documents and log which ones Trump claims are privileged.

Though the DOJ had asked for the review to end by October 17, Cannon directed Dearie to finish by November 30, though the judge did rule for the government by ordering Trump to pay 100% of the costs for his review, rather than having the government split the bill, as Trump wanted.

What To Watch For

The Justice Department has already said that if Cannon did not grant the agency’s request, it would appeal the order to the 11th Circuit Court of Appeals. It’s now likely to do so, though it’s unclear how that court—which has a majority of Trump-appointed judges—will rule. The ongoing court battle and appeal process is likely to further drag out the DOJ’s investigation into the seized Mar-A-Lago documents, which Vox noted could take months or years to be resolved in court.

Key Background

Trump asked Cannon to appoint a special master two weeks after FBI investigators searched Mar-A-Lago in connection with its ongoing investigation over Trump keeping White House documents at his Florida estate. The government recovered more than 11,000 documents during the search and has accused the ex-president of obstructing its investigation, alleging Trump kept the documents—including classified materials—at Mar-A-Lago even after a subpoena was issued requiring him to turn classified documents over. The seized materials include documents with the highest top-secret classifications, reportedly including details on other countries’ nuclear capabilities, and legal experts doubt he could have declassified documents without following the proper procedures. Cannon ruled on September 5 that a special master should be appointed despite the DOJ arguing it would be unnecessary and delay its investigation, arguing that the special master was necessary because some of Trump’s personal belongings were also seized and to prevent him from suffering “reputational harm.” Her ruling drew widespread criticism from legal experts, who referred to her legal reasoning to the New York Times as “deeply problematic,” “radical” and “laughably bad.”

Further Reading

DOJ Asks Court To Stop Special Master From Reviewing Classified Trump Mar-A-Lago Documents (Forbes)

Trump Opposes DOJ Request To Block Special Master From Seeing Classified Documents (Forbes)

Judge Sides With Trump, Grants Special Master To Review Mar-A-Lago Documents (Forbes)

Source: https://www.forbes.com/sites/alisondurkee/2022/09/15/doj-cannot-keep-classified-mar-a-lago-documents-from-special-master-judge-rules-siding-with-trump/