Lawyers for former President Donald Trump and the Department of Justice clashed Thursday in a federal courtroom in Florida for the first time since FBI agents executed a Search warrant at Trump’s Mar-a-Lago complex.
Trump’s lawyers have argued that Judge Aileen Cannon should appoint a special master to review all of the evidence seized in the August 8 search to see if any of it contains potential attorney-client or executive privilege issues. They also said they wanted the third party to share all the evidence with them, including the affidavit setting out the government case that was used to obtain the search warrant in the first place.
The judge did not immediately rule on the special teacher’s request and said she would issue a written decision at a later date.
While the government has cast the case in serious terms related to national security and classified documents, Trump’s attorney Jim Trusty likened it to something more mundane. “We’ve characterized it at times as a late library book scenario where there’s a dispute – not even a dispute – but ongoing negotiations with [the National Archives] it suddenly turned into a criminal investigation,” he said, avoiding the Justice Department issuing a subpoena for the documents earlier this year.
Throughout the hearing, the Trump-appointed Cannon asked more questions of the government than the former president’s team and repeatedly asked why she shouldn’t appoint a special master in the case.
Lawyers for the Justice Department argued that a special master was either superfluous or unwarranted in relation to Trump’s assertions of executive privilege. Citing a 1977 case, Nixon v. GSA, a government lawyer told the court that Trump could not claim privilege because he was no longer the executive.
“I don’t know if that’s true,” Cannon said. “It seems to me that you potentially overestimate Nixon and are now saying that there is absolutely no place for a former top executive to claim executive privilege at least for a while. This is not entirely decided by law. So I’m not sure if it’s cut and dried as you suggest.
Jay Bratt, a senior counterintelligence official at the DOJ, argued that the bottom line was that Trump had a stash of documents that didn’t belong to him.
“He’s no longer the president. And because he’s no longer the president, he had no right to those documents…that ends the analysis,” Bratt said.
The Department of Justice also maintained that a special master was not necessary because its screening team had already found 64 sets of documents totaling more than 500 pages which were judged. potentially privileged.
Trump’s attorneys argued otherwise, suggesting the documents are Trump’s property and that the FBI was engaging in a “wrongful pursuit to criminalize a former president’s possession of personal and presidential records in a secure setting.”
“The government should provide the special master and the motion with a copy of the seized documents, a copy of the search warrant and an unredacted copy of the underlying request documents,” Trump’s lawyers said in a court filing on Wednesday, suggesting that the special master could rein in supposedly out-of-control investigators. “Left unchecked, the DOJ will challenge, disclose, and publish selective aspects of their investigation without any remedy for moving but to somehow trust the restraint of currently unchecked investigators,” their filing reads.
An investigating judge ordered the release of a heavily redacted version of the affidavit last week, which showed investigators found a trove of highly classified documents in boxes Trump returned to the National Archives and Records Administration (NARA) in January after being away from office for more than a year . Twenty-five of those documents were marked top secret, while many more were labeled secret or confidential, depending on the filing.
The portions of the affidavit that remain redacted explain how and why the FBI came to believe that Trump still had a large number of documents at his Florida club.
In their own filing Tuesday, DOJ officials said adding a special master into the mix “is not necessary and seriously harm important government interestsincluding national security interests.
While federal agents have completed their review of the evidence gathered from the search, intelligence officials are making their own damage assessment, the filing said. A special master review of more than 100 classified documents found during the August 8 search “would prevent 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 from identifying steps to rectify or mitigate any harm caused by improper storage,” the Justice Department document reads.
In a separate filing on Monday, the DOJ said it was aware of the attorney-client privilege concerns. He said a privilege review team had “identified a limited set of documents that may contain attorney-client privileged information, completed their review of those documents, and are in the process of following the procedures” set out in the search warrant certificate “to resolve potential privilege conflicts, if any.”
Trump’s lawyers played down the large number of classified documents in their case, while downplaying investigators’ accusation that they failed to turn over sensitive documents even after they were served with a subpoena and after One of Trump’s lawyers said in an affidavit in June that all documents sought had been returned.
“A search warrant was executed at the home of a president. It was conducted amid the usual exchanges between former presidents and NARA regarding the contents of the presidential library,” their filing says.
“The purported justification for initiating this criminal investigation was the alleged discovery of sensitive information contained in the 15 boxes of presidential records. But this ‘discovery’ had to be fully anticipated given the very nature of presidential records. Simply put , the notion that presidential records would contain sensitive information should never have been alarming,” they wrote.
Cannon said in a ruling over the weekend that she had a “preliminary intent” to appoint a special counsel to review some of the documents seized by the FBI, but would do so until after the court hearing. Thursday to decide how to proceed.