Where It Stands Now As Judge Names Special Master

Topline

Here’s what we know so far after a special master was appointed Thursday to review the White House documents that former President Donald Trump brought back with him to Mar-A-Lago, which will take until November, slowing down the Justice Department’s ongoing probe into whether the ex-president violated federal law.

Former President Donald Trump’s Mar-a-Lago resort on February 11 in Palm Beach, Florida.

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Key Facts

What They’re Investigating: The Justice Department is investigating whether Trump violated three federal statutes when he brought back White House materials with him to Mar-A-Lago instead of turning them over to the National Archives as required.

How It Began: Trump voluntarily turned over 15 boxes of documents to the National Archives in January and the DOJ opened an investigation in February after discovering classified materials were brought back to Mar-A-Lago—eventually serving a subpoena for additional materials in June and then searching Mar-A-Lago in August when it appeared Trump’s attorneys did not actually turn over all the documents.

What’s In The Documents: Trump brought thousands of documents with him to Mar-A-Lago, including hundreds of classified materials, some of which had the most top-secret designations, and the Washington Post reports documents may include details on other countries’ nuclear capabilities.

What The DOJ Alleges: The government has alleged in court filings there’s evidence Trump and his team “concealed and removed” documents from a storage room at Mar-A-Lago, which could constitute obstructing its investigation, and has accused Trump of storing classified materials in unauthorized locations.

What Crimes Trump May Have Committed: The DOJ is investigating whether Trump violated three federal statutes, including the Espionage Act, which broadly deal with the mishandling of government and national security documents and carry potential punishments of fines or maximum prison sentences between three and 20 years, depending on the statute.

How Has Trump Responded: Trump has denied any wrongdoing, railed against the DOJ’s investigation and the Mar-A-Lago search on social media, and asked a federal judge in Florida to appoint the third-party special master to review the seized documents and filter out any material covered by attorney-client privilege or executive privilege.

Search Warrant Released: The DOJ unsealed the search warrant it used to search Mar-A-Lago and a redacted version of the affidavit used to obtain it, in response to more calls for transparency, which revealed what agents took from Mar-A-Lago and that they believed there was probable cause there would be “evidence of obstruction” at the Florida estate and more documents that hadn’t been turned over.

Special Master Fight: U.S. District Judge Aileen M. Cannon, whom Trump appointed, sided with the ex-president and granted a special master to review the documents seized to filter out any materials covered by attorney-client or executive privilege—despite the DOJ arguing such a review would be unnecessary and hamper its investigation, and that materials can’t be shielded under executive privilege from the actual executive branch.

Where We’re At Now: Cannon appointed former federal district Judge Raymond Dearie to serve as the special master and rebuffed a request from the Justice Department to exclude approximately 100 classified documents from his review, and the review is set to end by November 30—with the DOJ not allowed to use the White House materials for its criminal investigation in the meantime.

Big Number

More than 11,000. That’s the number of materials the DOJ seized at Mar-A-Lago, according to court filings, including 11,179 non-classified materials, 103 documents that had classified markings—18 of which were labeled “top secret”—and 48 empty folders that were labeled “classified.” Though the DOJ asked Trump’s attorneys to keep all White House materials in a secure storage room, 27 documents labeled classified were found in Trump’s office. The White House materials seized in August come after Trump already voluntarily turned over 15 boxes of documents in January to the National Archives, and his attorneys gave federal prosecutors 38 documents with classified markings in June in response to a grand jury subpoena.

What To Watch For

The Justice Department is expected to appeal Cannon’s ruling allowing Dearie to review classified documents to the 11th Circuit Court of Appeals. Trump will pay all the costs for the special master’s 11-week review, and while the order blocks the DOJ from using the White House materials in its criminal investigation, the agency is still allowed to investigate the documents storage at Mar-A-Lago as long as their actions don’t involve the actual content of the documents. Cannon has also allowed the Office of the Director of National Intelligence to continue reviewing documents as part of its investigation into whether keeping the documents at Mar-A-Lago posed a national security risk, though the DOJ has argued it would be difficult for that probe to move forward while the criminal investigation can’t.

What We Don’t Know

If there are still more documents that Trump hasn’t turned over yet. The House Oversight Committee has asked the National Archives to conduct a review of materials to determine if White House materials are still missing, noting in a letter that the Archives has told lawmakers that it’s not sure “whether all presidential records are in its custody.” Former Trump adviser John Bolton and ex-Trump attorney Michael Cohen have suggested they believe it’s possible the former president could have brought White House documents with him to other properties, like Trump’s golf club in Bedminster, New Jersey, though there’s no evidence so far to back that up.

Tangent

Trump has argued he declassified the documents he brought with him to Mar-A-Lago, and his attorneys said in a court filing the DOJ can’t say that documents with classified markings are actually classified, given that Trump could have downgraded them. The ex-president’s attorneys have not told the court Trump did actually declassify any documents, however, and legal experts have said it’s unlikely he could have declassified documents without following the proper protocols. Even if Trump did declassify materials, it might still not have an effect on him facing criminal charges, as the federal statutes he’s being investigated under apply to the mishandling of government documents or materials that implicate national security, and do not specify those documents must be classified.

Key Background

The Mar-A-Lago documents investigation is one of several to threaten Trump now that he’s left office. The Justice Department is conducting a separate probe into the January 6 attack on the Capitol Building and Trump and his allies’ efforts to overturn the 2020 election leading up to it, with investigators reportedly becoming more interested in recent months in Trump himself and conversations witnesses had with the then-president. The district attorney’s office in Fulton County, Georgia, is conducting an investigation into Trump’s post-election efforts in that state, including a call he had with Secretary of State Brad Raffensperger in which Trump asked him to “find” enough votes to change the results. New York Attorney General Letitia James is leading civil and criminal probes into alleged financial wrongdoing at the Trump Organization, which may result in Trump soon being sued, and the criminal investigation is being undertaken alongside a separate ongoing probe from the Manhattan district attorney’s office. While Trump has not yet been charged in that probe, the Trump Organization will go to trial in October over charges of alleged tax fraud.