WASHINGTON, (Reuters) – A federal judge yesterday agreed to appoint a special master to review records seized by the FBI during its unprecedented search of former President Donald Trump’s Florida estate, a move that is likely to delay the Justice Department’s ongoing criminal investigation.
In her ruling, U.S. District Judge Aileen Cannon in West Palm Beach, Florida granted Trump’s request for a special master, whom she said will be tasked with reviewing documents that as well as being potentially covered by attorney-client privilege could also be covered by executive privilege. She also ordered the Justice Department to stop reviewing the records as part of its criminal investigation, a move that will likely at least temporarily hinder its ability to continue investigating.
However, Cannon said she would permit U.S. intelligence officials to continue conducting a classification review, as well as a national security damage assessment review.
Cannon’s decision to allow a special master to review documents that could be covered by executive privilege, a legal doctrine that can shield some White House records from disclosure, has never been done before.
If the special master decides some of the material is covered by Trump’s executive privilege claims, it could hamper the government’s investigation.
Cannon rejected the government’s argument against appointing a special master to review materials potentially covered by executive privilege. The Justice Department had said the records belong to the government and that Trump is no longer president.
“The government asserts that executive privilege has no role to play here because plaintiff—a former head of the executive branch—is entirely foreclosed from successfully asserting executive privilege against the current executive branch,” wrote Cannon, who was appointed by Trump in 2020 just months before he left office.
“In the court’s estimation, this position arguably overstates the law,” she said.
Cannon gave Trump’s legal team and the Justice Department until Friday to file a proposed list of special master candidates.
“The United States is examining the opinion and will consider appropriate next steps in the ongoing litigation,” Justice Department spokesman Anthony Coley said.
It is unclear whether the Justice Department will appeal Cannon’s ruling, or even if it has the ability to do so under the law.
In its prior legal filings, the Justice Department has also said that the federal court for the Southern District of Florida does not have the jurisdiction to adjudicate Trump’s claims.
Representatives for Trump did not respond to a request for comment.
However, in a post on his Truth Social platform following Cannon’s ruling, Trump wrote: “Remember, it takes courage and ‘guts’ to fight a totally corrupt Department of ‘Justice’ and the FBI.”
Trump, without evidence, has accused the Justice Department of launching a partisan witch-hunt against him, and his lawyers argued that the appointment of an independent third-party to review the materials would be an important check on the government.
Trump is under investigation for removing government records, some of which were marked as highly classified, from the White House after he departed in January 2021, and storing them in his home at his Mar-a-Lago estate in Palm Beach.
The Justice Department has said it is also investigating possible obstruction, after the FBI uncovered evidence that Trump’s team may have deliberately concealed classified documents when agents tried to recover them in June.
At that same meeting on June 3, Trump’s representatives falsely certified they had conducted a diligent search and returned all classified materials to the government – a claim that was later disproved after the FBI recovered about 33 boxes containing more than 11,000 government records and photos and more than 100 records marked as classified.
Trump’s legal team waited until two weeks after the FBI’s Aug. 8 search before asking the court to appoint a special master – an independent third party who is sometimes assigned in sensitive cases to review materials that could be covered by attorney-client privilege.
A special master was used, for instance, to review materials seized in the searches of the homes and offices of two of Trump’s former attorneys – Rudy Giuliani and Michael Cohen.
In addition to arguing against appointing a special master to review material potentially covered by executive privilege, the Justice Department argued that it made no sense to appoint a special master because its filter team – a group of agents who are not part of the investigation – had completed its work.
The agents located and set aside about 520 pages that could be subject to attorney-client privilege, prosecutors said at a Sept. 1 hearing.
The rest of the records have already been reviewed by the investigative team for the ongoing criminal probe.
In her ruling on Monday, Cannon said she has lingering concerns about how the Justice Department has conducted its privilege review, saying she was aware of at least two instances in which members of the investigative team were exposed to materials which were later designated as potentially privileged.
“Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process,” she wrote.
Many former Justice Department attorneys, both Democrats and Republicans, have criticized Trump’s call for a special master.
In a brief phone interview on Monday, former Attorney General Bill Barr, whom Trump appointed, spoke out against using a special master to review materials potentially covered by executive privilege.
“I don’t think a special master makes sense in connection with executive privilege material,” Barr told Reuters.
“If the documents are subject to executive privilege,” he said, “they involve official deliberations about executive actions, and by definition, those documents belong to the government.”