By Zachary Stieber
A U.S. judge on Sept. 5 agreed to insert a special master into the review process for records seized from former President Donald Trump’s Florida home.
U.S. District Judge Aileen Cannon, a Trump appointee, ordered the appointment of a special master to review the seized property for items and documents that may be covered by attorney-client or executive privilege.
“In addition to being deprived of potentially significant personal documents, which alone creates a real harm, Plaintiff faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public,” Cannon wrote in her 24-page order, released several days after a hearing in which she heard arguments from Trump’s lawyers and attorneys for the government.
“Further, Plaintiff is at risk of suffering injury from the Government’s retention and potential use of privileged materials in the course of a process that, thus far, has been closed off to Plaintiff and that has raised at least some concerns as to its efficacy, even if inadvertently so,” she added.
A special master is an independent third party who assists with sensitive cases.
FBI agents seized records, notes, and other items from Trump’s Mar-a-Lago resort in Palm Beach, Florida, on Aug. 8.
Cannon said she was swayed to side with Trump in part because the U.S. government’s filter team, which was supposed to identify all potentially privileged items, failed to do so.
“Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process,” the judge said.
Justice Department (DOJ) officials have maintained that Trump can’t legitimately exert executive privilege claims because he’s no longer in office, pointing to a determination by the acting U.S. archivist, but Cannon said she didn’t necessarily agree.
“In the Court’s estimation, this position arguably overstates the law,” she said.
In the U.S. Supreme Court’s decision in Nixon v. Administrator of General Services, cited by Acting Archivist Debra Wall and DOJ lawyers, a majority of the court found that a new law governing the custody of presidential records didn’t violate the U.S. Constitution or executive privilege.
But the court also “did not rule out the possibility of a former President overcoming an incumbent President on executive privilege matters,” Cannon said.
“Further, just this year, the Supreme Court noted that, at least in connection with a congressional investigation, ‘[the] questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege, are unprecedented and raise serious and substantial concerns,’” she added, citing a decision in Trump v. Thompson.
Even if Trump’s assertion of executive privilege ultimately fails, former presidents can still raise the possibility “as an initial matter,” making the filter team’s failure to screen for material potentially falling under the assertion another reason to appoint a special master, according to the judge.
List of Proposed Candidates
Trump’s lawyers and U.S. lawyers were directed to confer and submit a joint filing that includes a list of special master candidates. The filing shall also include proposals for how the special master should operate, Cannon said.
Any points of major disagreement should be identified in the joint filing.
An outside party recently submitted a list of four proposed candidates to the court, including at least one academic who has a history of animus against Trump.
“The United States is examining the opinion and will consider appropriate next steps in the ongoing litigation,” a spokesperson for the DOJ told news outlets after the ruling was issued.
Cannon also reserved ruling on Trump’s request for the return of property and ordered the government to stop reviewing and using the seized materials for its ongoing investigation into Trump.
Officials allege evidence indicates Trump violated several laws, including one barring certain handling of defense information.
U.S. intelligence officials, though, are being allowed to continue their review of potential damage from Trump holding records marked classified.