In a win for Donald Trump, U.S. District Judge Aileen Cannon has granted a request from the former president’s legal team to appoint a special master to review documents seized in the FBI search of his Mar-a-Lago estate.
The ruling will halt all reviews of the documents by the Justice Department in its criminal investigation.
“The Court hereby authorizes the appointment of a special master to review the seized property for personal items and documents and potentially privileged material subject to claims of attorney-client and/or executive privilege,” the federal judge said in her order Monday. “Furthermore, in natural conjunction with that appointment, and consistent with the value and sequence of special master procedures, the Court also temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order.”
Judge Cannon said that the appointment of an independent third party would not impede the ongoing classification review and national security assessments being conducted by the intelligence community.
“The Government may continue to review and use the materials seized for purposes of intelligence classification and national security assessments,” Cannon said.
The court, Cannon wrote, is “mindful of the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented.”
She cited what she called “the power imbalance between the parties; the importance of maintaining institutional trust; and the interest in ensuring the integrity of an orderly process amidst swirling allegations of bias and media leaks.”
With regard to attorney-client privilege matters, she said, “the Government’s argument assumes that the Privilege Review Team’s initial screening for potentially privileged material was sufficient, yet there is evidence from which to call that premise into question here.”
She continued, “Without delving into specifics, 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.”
She added, “Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process.”
The judge gave DOJ and Trump’s team until Friday to confer and submit a joint list of proposed special master candidates and a proposed order outlining the special master’s duties and limitations. For now, Judge Cannon said she is reserving a ruling on whether Trump should have property returned to him that was seized.
“The United States is examining the opinion and will consider appropriate next steps in the ongoing litigation.” Justice Department spokesman Anthony Coley said in a statement Monday afternoon but there was no word on whether DOJ will seek to appeal the judge’s order.
Cannon’s legal analysis gives extensive deference to the arguments put forward by former President Trump’s legal team, and appears to create a new precedent for executive privilege stretching beyond a president’s time in office that it is difficult to see the Justice Department allowing to stand, various legal experts argued in the wake of the judge’s ruling.
Cannon, who was nominated by Trump and confirmed by the U.S. Senate a week after his election loss to Joe Biden, justified her ruling by citing the “undeniably unprecedented nature of the search of a former President’s residence,” and his “stated reliance on the customary cooperation between former and incumbent administrations regarding the ownership and exchange of documents,” while declining altogether to acknowledge the serious allegations of potential obstruction by Trump’s legal team in their negotiations with DOJ.
She also expressed concern over “the stigma associated with” the FBI’s seizure of the materials described as “in a league of its own” and specifically notes “a future indictment [of Trump], based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.”
And Cannon further argued that a special master’s intervention would help ensure “the integrity of an orderly process amidst swirling allegations of bias and media leaks,” by suggesting DOJ’s investigators could seek to leak out damning details from the evidence seized at Mar-a-Lago to harm Trump’s reputation.