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A federal judge on Thursday appeared inclined to grant Donald Trump his request to have a so-called special master set aside documents seized by the FBI from his Mar-a-Lago resort that could potentially be subject to privilege protections in the investigation surrounding his unauthorized retention of government secrets.
The Trump-appointed judge, Aileen Cannon, did not formally rule from the bench on the former president's request, saying at an hours-long hearing in West Palm Beach, Florida, that she would review the matter further before making a final decision.
But the judge gave serious indications that she would appoint a special master to determine what materials the US justice department can use in its investigation, while potentially allowing for the intelligence community to continue its assessment about whether Trump's retention of the documents risked national security.
"What's the harm?" Cannon asked the government towards the end of the hearing, referring to the prospect of appointing a special master.
The judge also raised repeated concerns over two instances of "inadvertent exposure" of potentially privileged documents to the team conducting the investigation and "some missteps in the execution of the warrant" that suggested the need for an independent arbiter to go through the materials.
According to a justice department lawyer on the filter team that conducted its own review of the seized documents, federal investigators saw a potentially privileged document that was topped with a name of a organization unrelated to the investigation, as well as a second unidentified, potentially privileged document.
The judge also questioned the extent of the potentially privileged documents collected by the FBI that totaled 64 sets of documents amounting to roughly 520 pages, and corrected the justice department that in Nixon vs GSA, the supreme court did not rule that former presidents cannot assert executive privilege.
The justice department opposed Trump's motion, arguing that such a move would delay its criminal investigation examining potential obstruction and potential violations of the Espionage Act. The government also raised alarm at the fact that appointing a special master could give Trump access once more to classified documents.
Jay Bratt, the justice department's counter-intelligence section chief, who argued principally for the government, also argued that Trump's motion should not be granted because Trump had no possessory interest in the presidential documents since he was no longer president.
More details about what the FBI seized from Mar-a-Lago are expected to be revealed after judge Cannon unsealed a more detailed inventory of what was collected by the justice department, as well as a status report from the team conducting the investigation after Trump's lawyers agreed to make it public.
But the judge agreed to keep sealed the status report from the justice department's investigative team after Trump's lawyers objected, and also deferred ruling on a request from the filter team attorney to make available to Trump's legal team only a summary of the 64 sets of potentially privileged documents.
The arguments for Trump were mainly made by Jim Trusty, a former chief of the organized crime section at the justice department. Trusty repeatedly emphasized the consequential nature of the case and that appointing a special master - and temporarily delaying the investigation - would not pose a particularly heavy burden.
Trusty made the case that having a special master to assess whether certain documents were privileged, and adjudicate between personal or presidential or attorney-client privileged documents, could also be a way to resolve disagreements with the justice department about potential privilege.
The Trump legal team, which featured opening remarks from its newest addition, former Florida solicitor general Chris Kise, said that the justice department was twisting the nature of the Presidential Records Act - mandating the National Archives as the custodian of presidential records - that lacks an enforcement mechanism.
Prosecutors remain skeptical that the push for a special master is designed to obfuscate and delay the criminal investigation into whether Trump illegally removed highly sensitive material from the White House when his presidency ended in January 2021. The tactics have been frequently deployed by him in other contexts, including his real estate dealings.
The Department of Justice had set out its opposition to a special master in two separate filings this week. In the first, on Monday, it said it had completed its review of the documents to filter out any that Trump was entitled to be returned and found "a limited set of materials that potentially contain attorney-client privileged information".
A more detailed filing on Tuesday gave extensive detail about why Trump's wish for outside review of the DoJ's actions should be resisted. It bluntly stated that Trump has no claim to executive privilege over the documents because "those records do not belong to him".
The agency is pursuing a criminal investigation of how documents were taken out of the White House by Trump on his departure and relocated to Mar-a-Lago in violation of the PRA. It says that some of the papers are restricted to the highest level of classification, and could put US undercover agents in danger.
At least 320 classified documents have been recovered from Mar-a-Lago since January. Of those, more than 100 were seized in the August search.
As an attachment to its latest filing, the DoJ released a photograph of several document folders marked "Secret" and "Top secret" scattered over a carpet in Mar-a-Lago. Some of the documents were stamped "NOFORN", indicating they should not be seen by any non-US citizen without permission.
The director of national intelligence is in the process of reviewing the documents retrieved from Mar-a-Lago to see what possible damage they could do to national security were any to have fallen into the wrong hands.
