By Margot Cleveland
A federal judge on Monday granted former President Donald Trump’s request for the appointment of a special master to review the documents seized by the FBI during a raid on his Mar-a-Lago home last month. Presiding Judge Aileen Cannon, a Trump appointee, further held that the Department of Justice cannot review or use for criminal investigative purposes any material seized pending the review process.
Besides handing Trump a victory in his battle for some oversight of the Biden administration’s digging into his documents, Cannon highlighted several significant facts over the course of her 24-page order that further call into question the DOJ’s targeting of Trump.
Here are the seven top-line takeaways:
1. President Biden Was Directly Involved
In the order granting Trump’s request for the appointment of a special master, Cannon began by providing a summary of the backdrop that led to the search. Throughout 2021, Trump and the National Archives and Records Administration (“NARA”), “engaged in conversations concerning records from Trump’s time in office,” the court noted. Those discussions resulted in Trump in January 2022 transferring 15 boxes from Mar-a-Lago to NARA. NARA subsequently informed the Department of Justice that some items in the boxes contained markings of “classified national security information.”
Following the archive’s outreach to the Justice Department, NARA notified Trump on April 12, 2022, that it intended to provide the 15 boxes to the Federal Bureau of Investigation. Trump’s attorneys sought a delay in the transfer to assess whether any documents contained privileged material. But then, as Cannon wrote, after obtaining a short delay, on May 10, 2022, NARA informed Trump it would proceed with “providing the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022.”
In including this quote in her order, Cannon cited the letter the NARA’s acting archivist sent to Trump’s lawyer. That letter explained that Biden had decided to defer to the archivist’s “determination, in consultation with the Assistant Attorney General for the Office of Legal Counsel, regarding whether or not the archivist should uphold the former President’s purported ‘protective assertion of executive privilege.’” Acting Archivist Debra Steidel Wall then explained in the letter that based on her consultation with the assistant attorney general for the Office of Legal Counsel, she had decided not to honor Trump’s claim of privilege.
While the media has previously highlighted those aspects of the letter, Monday’s order highlighted a key sentence in that same letter that went less noticed by the press: “NARA will provide the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022” (emphasis added).
This language indicates that Biden did not merely defer to the NARA but asked the NARA to give the documents to the FBI. Of course, deferring to the NARA’s judgment equated to Biden authorizing the hand-off to the FBI, but this passage suggests a more direct connection between Biden and the investigation into Trump.
2. Timeline of the Trump Targeting Is Suspect
A second significant detail revealed by Monday’s order concerns the timeline of events, which the court exposed by providing a clear chronology. On May 10, 2022, the archivist informed Trump’s lawyers that the “NARA will provide the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022.” And on May 11, 2022, before the DOJ received possession of the 15 boxes from NARA, the DOJ “obtained a grand jury subpoena,” for “any and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.”
But why would the DOJ seek a grand jury subpoena for any and all documents in Trump’s possession bearing classification markings before reviewing the material provided by the NARA? And given that the DOJ obtained the subpoena the day after the NARA told Trump’s lawyer “the incumbent President” had requested the archive provide the documents to the FBI, one must ask: Did Biden direct the DOJ to obtain the grand jury subpoena?
3. Not So Fast Joe — Trump’s Executive Privilege Can’t Be So Quickly Sidestepped
Another important detail from Monday’s order concerned the court’s handling of Trump’s request for a review of the seized material to address issues of “executive privilege.” In opposing Trump’s request for a special master, the Biden administration argued that Trump lacked the right to assert “executive privilege” against the current executive branch. The court concluded that the Biden administration’s “position arguably overstates the law,” noting that the Supreme Court has not “rule[d] out the possibility of a former President overcoming an incumbent President on executive privilege matters.”
“Further, just this year,” Cannon continued, “the Supreme Court noted that, at least in connection with a congressional investigation, ‘[t]he 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.’” To protect former President Trump’s ability to raise a question of executive privilege, then, a special master should review the documents and make an initial assessment, the court concluded.
This analysis tees up the possibility that Trump will later assert executive privilege, prompting a showdown with the Biden administration.
4. Members of the Investigative Team Saw Confidential Attorney-Client Documents
While the Biden administration had not reviewed the seized documents to assess any potential executive privilege concerns, a Privilege Review Team had screened the material to determine if it is protected by attorney-client privilege. Because it had already screened the material, the government objected to the appointment of a special master to conduct “another round of screening,” arguing in essence, that such screening would be “unnecessary.”
“The Court takes a different view on this record,” Cannon explained in rejecting the government’s argument. The court then stressed that the evidence suggests the Privilege Review Team’s initial screening for potentially privileged material was faulty.
“The Privilege Review Team’s Report references at least two instances in which members of the Investigative Team were exposed to material that was then delivered to the Privilege Review Team and, following another review, designated as potentially privileged material,” Cannon noted. “Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process.”
The federal judge further expressed concern about the fact that “the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team,” with the “tainted members” being the ones who had seen the material presumed protected by attorney-client privilege.
While a special master cannot address the issue of the “tainted members” on the investigative team, the court’s highlighting of the problem will likely push the DOJ to keep those agents away from any related part of the investigation. But what the special master can do is review the documents and determine if others were protected by attorney-client privilege. If so, the DOJ will have bigger problems.
5. DOJ Seized a Lot of Personal Material
Another revelation from Monday’s order concerned the amount of personal material the FBI seized. “The Government’s inventory reflects a seizure of approximately 11,000 documents and 1,800 other items from Plaintiff’s residence,” the court wrote. Of the material seized, the court said approximately 100 documents contained classification markings. But the FBI also seized some 500 pages of material potentially protected by attorney-client privilege, medical documents, correspondence related to taxes, and accounting information.
Further, as the court noted, “the Government also has acknowledged that it seized some “personal effects without evidentiary value.” And “some of the seized items (e.g., articles of clothing)” were “readily identifiable as personal property.” The FBI had also seized three of Trump’s passports, but those items have already been returned to the former president.
That the FBI seized Trump’s passports, articles of clothing, medical records, and accounting and tax documents during the raid of Mar-a-Lago highlights both the breadth (and lack of particularity) of the search warrant and the potential for the Biden administration to use the search as a fishing expedition.
6. FBI Suggested Trump Committed a Crime by Returning a Torn-Up Document to the NARA
The sixth revelation came not directly from the court’s opinion but from the government filings referenced in Monday’s order and specifically the DOJ’s response brief in opposition to Trump’s request for the appointment of a special master.
In its response brief, the government wrote that on February 9, 2022, the special agent in charge of NARA’s Office of the Inspector General made a referral of Trump to the DOJ. The government further explained that “the NARA Referral was made on two bases: evidence that classified records had been stored at the Premises until mid-January 2022, and evidence that certain pages of Presidential records had been torn up. Related to the second concern, the NARA Referral included a citation to 18 U.S.C. § 2071.”
This passage proves intriguing for two reasons. First, it appears the special agent in charge made a criminal referral of the former president because documents Trump had returned to the archivist had been torn up at some point. This reference screams “witch hunt,” which leads to the second point: The unredacted portions of the search warrant affidavit omit any reference to the torn documents.
Rather, the unredacted portions of the search warrant affidavit speak of the government “conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records.” The affidavit continues by noting that “the investigation began as a result of a referral the United States National Archives and Records Administration (NARA) sent to the United States Department of Justice (DOJ) on February 9, 2022,” which “were reported by NARA to contain, among other things, highly classified documents intermingled with other records.”
None of the unsealed portions of the affidavit reference the second basis for the referral — that Trump returned torn documents. Maybe such references were black-out, but if so, the DOJ lacked a solid reason for the redactions given they revealed the same facts in the briefing. Or maybe the DOJ realized that using torn documents as a pretext to search the home of a former president would paint the raid as political — because it sure does make the special agent in charge’s referral look political.
7. Leaks Look Bad Too
In granting Trump’s request for the appointment of a special master, Cannon stressed that the special master would help maintain institutional trust in a case heavily politicized. She further noted that a special master would serve to ensure “the integrity of an orderly process amidst swirling allegations of bias and media leaks.” Here, the court noted that “when asked about the dissemination to the media of information relative to the contents of the seized records, Government’s counsel stated that he had no knowledge of any leaks stemming from his team but candidly acknowledged the unfortunate existence of leaks to the press.”
Those “unfortunate” leaks provide further proof of the politicization of this entire affair: In three weeks’ time, Mar-a-Lago has sprung more leaks than have escaped from Special Counsel John Durham’s team over three years. And while the special master may not be able to silence the deep-state leakers, he or she will provide a check to the Biden administration.
But first, the parties must, as the court put it, “meaningfully confer” and then submit a joint filing to the court of a list of proposed special master candidates and a detailed proposal of the master’s duties, limitations, and ability to speak privately with Trump and the government, and other logistical information.
Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.