Ruling on special master to come later, judge says

A federal judge in Florida ended a court hearing Thursday without ruling on a pending request by former President Donald Trump to appoint an independent watchdog to review government documents seized by FBI agents in the Aug. 8 raid of his Mar-a-Lago residence.

Judge Aileen Cannon said she will rule later after listening to arguments from Trump’s legal team and federal prosecutors at the hearing, which was scheduled after the former president sued to have a so-called special master appointed to examine the documents.

The Department of Justice is opposing the call for a special master, arguing that it will delay the DOJ’s criminal investigation into the removal of White House records when Trump left office in early 2021.

By law, White House records must be turned over to the National Archives and Records Administration when a president leaves office.

The DOJ also has said that a review of the documents by a team of internal department watchdogs already has completed its own review and identified some records that would potentially be exempt from use in the investigation because they are protected by the attorney-client privilege.

Jay Bratt, the DOJ’s top counterintelligence official, at the hearing also argued that Trump is not entitled to a review by a third party of the documents because “he is no longer the president.”

“And because he’s no longer the president he had no right to those documents … that ends the analysis,” Brat said.

Special masters, often drawn from the ranks of retired judges, are typically appointed in cases where there is a risk that some of the records seized by law enforcement should be barred from use in an investigation because they are protected by the attorney-client privilege.

Trump’s lawyers however, argue that some of the records could be protected by executive privilege that would result from him having been president at the time they were created.

In a court filing Tuesday, the DOJ revealed that more than 100 classified documents were found at Mar-a-Lago, the private club in Palm Beach, Florida, where Trump maintains a residence, during the Aug. 8 raid.

That discovery came two months after Trump’s lawyers, in response to a federal grand jury subpoena, provided the DOJ with a sworn certification that a search of Trump’s living quarters and office had not found records that were marked classified.

Tuesday’s filing said there is evidence that government records including the ones marked classified were likely concealed and removed from a storage room at that residence in an effort to “obstruct the government’s investigation.”

Authorities have said that NARA tried for about a year after Trump left the White House in January 2021 to obtain documents it suspected were still in his possession. When Trump did give up 15 boxes of records from Mar-a-Lago earlier this year, they were found to contain highly classified material, leading to the opening of the DOJ probe, and eventually the Aug. 8 raid.

Trump has argued that he declassified the records before leaving office. But whether or not the documents remain classified is irrelevant under the criminal laws that the DOJ is eyeing in the case, which includes the espionage statute and obstruction of justice.

Trump lawyer Jim Trusty during Thursday’s hearing repeated an analogy that has become popular among defenders of the former president.

“We’ve characterized it at times as an overdue-library-book scenario where there’s a dispute — not even a dispute — but ongoing negotiations with [the National Archives] that has suddenly been transformed into a criminal investigation,” Trusty said, according to NBC News.

Trusty’s claim omitted mention of a grand jury subpoena issued for the documents.