Before the August 8 search of Donald Trump’s Mar-a-Lago mansion and seizure of “top secret” documents, U.S. Magistrate Judge Bruce Reinhart found probable cause to believe that evidence of three different federal crimes would be found there.
On August 22, Trump filed a motion in the U.S. District Court for the Southern District of Florida requesting the appointment of a “special master” to review the documents seized at Mar-a-Lago. Although the Department of Justice (DOJ)’s Filter Team had already segregated documents that might be protected by the attorney-client privilege or executive privilege, Trump wants a special master (usually a retired judge) to inspect them for privileged or potentially privileged material.
Trump’s motion is pending before Judge Aileen Cannon, a Trump appointee. Judge Cannon indicated that she is open to Trump’s request and would appoint a special Master. Although she held a hearing on September 1st, she has not yet issued a ruling. A special master could substantially delay the DOJ’s criminal investigation of Trump and his associates.
DOJ Says Government Records Were “Likely Concealed and Removed” and “Efforts Were Likely Taken to Obstruct” Investigation
The motion for a special master provided the DOJ with an opportunity to present a more detailed — and incriminating — narrative about obstruction by Team Trump. In an August 30 filing, the DOJ wrote that “government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.” This led the DOJ to ask Judge Reinhart for a warrant to search Mar-a-Lago.
The DOJ noted in its filing:
The FBI found multiple evidence that the FBI’s response to the May 11 grand jury subpoena was incomplete. It also revealed that classified documents remained at Premises, despite the government’s June 3. sworn certificate. Particularly, the government provided evidence that a search that was limited to the Storage Room wouldn’t have revealed all classified documents at Premises.
Although Trump claimed he was “fully cooperative” with government personnel who came to Mar-a-Lago pursuant to the grand jury subpoena on June 3, his lawyer “explicitly prohibited” them “from opening or looking inside any of the boxes that remained in the storage room,” according to the DOJ.
Trump made the questionable claim that an FBI agent told him on June 3, “Thank you. Although you didn’t have to show us the storage space, we appreciate it. Now it all makes sense.”
FBI agents discovered 13 containers or boxes containing more than 100 documents. This was more than double the number they received on June 3. The DOJ noted in its filing:
That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the “diligent search” that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter.
“[T]he notion that Presidential records would contain sensitive information should have never been cause for alarm,” Trump’s lawyers flippantly wrote in their August 31 filing.
Trump lawyers M. Evan Corcoran, Christina Bobb may become targets or witnesses They may be involved in the investigation. They might be charged for obstruction and/or making falsified statements. On June 3, Bobb signed a statement on Trump’s behalf, saying that “based upon the information that has been provided to me,” all documents called for in the subpoena were being returned following a “diligent” search. Trump or Corcoran could have provided this information to Bobb. Corcoran allegedly told the government agentsAll classified documents were returned.
Bobb and/or Corcoran may invoke the attorney-client privilege to prevent them from testifying against Trump. However, the crime-fraud exemption would require their testimony if they were involved in Trump’s commission of a criminal act. In March, a federal judge used the crime fraud exception to the attorney–client privilege to rule that the House committee investigating the January 6 rebellion could require attorney John Eastman to testify. Eastman provided legal arguments to Trump to overturn the election. The judge found it “more likely than not” that Trump and Eastman conspired to defraud the United States.
The Investigation would be impeded by the appointment of a Special Master
The DOJ argues in its filing that a special master is not necessary. It “would impede the government’s ongoing criminal investigation” and the “Intelligence Community from conducting its ongoing review of the national security risk that improper storage of these highly sensitive materials may have caused” and “identifying measures to rectify or mitigate any damage.”
Moreover, the DOJ argues, Trump lacks “standing” to seek a special master or the return of the documents since he does not own them. According to the Presidential Records Act (PRA), presidential records are government property.
And the DOJ writes that a former president can’t assert executive privilege against the executive branch for its performance of executive functions.
The hearing lasted nearly two hours on September 1. Judge Cannon signaledAlthough she suggested she might appoint a master special, she did not direct the FBI’s review to halt. She desecrated a more detailed listThe FBI seized a number of documents during its August 8 search.
The newly-released inventory contains 31 documents labeled CONFIDENTIAL. 54 are labeled SECRET. 18 are labeled TOP SERET. It lists 48 empty folders marked CLASSIFIED, 42 empty folders marked for return to a military aide and no indication of where the documents are.
The detailed inventory also includes more than 11,000 documents and photos without any classification markings. The classified documents were mixed in with personal items, media articles, and documents without classification labels.
In an attempt to minimize the severity of the retention of government documents at Mar-a-Lago, Trump’s attorney James Trusty compared Trump’s repeated failures to return the documents to the National Archives or fully honor the grand jury subpoena to having an “overdue library book.”
Although Trump maintains that he issued a blanket declassification order so none of the documents at his home were classified, his attorneys wrote that Trump “agrees that it would be appropriate for the special master to possess a Top Secret/SCI security clearance.” Why would a special master need a security clearance if they would not be reviewing classified documents?
Furthermore, CNN It was reported that none of the 18 former White House aides and advisersThey had heard Trump issue a blanket order declassification and believed that claim was patently false.
Trump wants a copyUnredacted affidavit that provided probable cause for the search order. Judge Reinhart removed a heavily redacted statement after the DOJ argued that it could endanger informants, and put at risk the investigation.
In the unlikely event Judge Cannon releases the unredacted Affidavit, it will contain more damning evidence against Trump.
The evidence seized during Mar-a -Lago’s search strengthens Trump’s criminal case and/or his lawyers and associates.
It is likely that the investigation will be delayed if Judge Cannon names a special master. It could also have political ramifications, diverting public attention away from Trump’s wrongful possession of classified documents as the midterm elections approach.
