West Palm Beach, Florida
After an explosive report and photo of classified documents of Mar-a-Lago earlier this week, the Justice Department will argue in court Thursday against a request by former President Donald Trump that a so-called special master be appointed to review evidence the FBI has seized at his Florida resort last month.
U.S. District Judge Cannon Aileen will consider whether to bring in a third party to oversee the Department of Justice, in which an outside attorney would theoretically identify and filter evidence that should be hidden from investigators because it was privileged.
It’s happening today
Arguing that this is unnecessary, prosecutors in court filings Tuesday night provided new details about his investigation into whether classified government documents had been unlawfully mishandled. Lawyers for the former president, who filed a lawsuit last week to secure his nomination, meanwhile argued in a court filing late Wednesday that the Justice Department could not be trusted because Trump claimed the research itself was unwarranted.
Cannon previously reported a pattern of granting Trump’s request, but that was before the Justice Department’s dramatic filing this week.
Here’s what to watch for in Thursday’s hearing, which begins at 1 p.m. ET:
Earlier this week, the Justice Department got the judge’s permission to significantly exceed the page limit for Tuesday’s filing, and once it was submitted, it was clear why. Prosecutors, as they told the court in what they ultimately filed, wanted to give “a detailed account of the relevant facts, many of which are provided to correct the incomplete and inaccurate account presented in the documents filed by the plaintiff.” .
Along with the details he provided about the events leading up to the search, the DOJ adventure pushed back against several key points the Trump team had raised in how it framed the search. Given that Trump suggested on Wednesday it was the government that was misleading (although he didn’t say how), prosecutors could be even more blunt in how they rebuke the former president’s claims. .
Thursday’s hearing marks the first time Trump’s attorneys will argue in court about the search.
Trump has never sought to formally intervene in the separate court battle that took place before a magistrate over the release of certain warrant documents. His attorney Christina Bobb appeared in public for a hearing in that dispute last month, but just to observe.
With Tuesday’s filing, the The DOJ released an attestation she signed to certify that the classified documents subpoenaed by Trump in June had been diligently sought and produced to the FBI. The fact that the FBI found 100 other classified documents during the search in August called into question its statements in the affidavit.
Meanwhile, Trump has added a new lawyer – former Florida Solicitor General Chris Kise – to his team. He did so after the initial lawsuit filed by his team was flagged by the judge as missing basic legal elements regarding the claim.
Judge Cannon’s decision to pre-announce that she was likely to appoint the special master raised eyebrows among outside observers. Even with his lawyers’ second attempt to explain the motion, Trump’s request glossed over several legal issues surrounding the request. And their petition was filed two weeks after the raid, meaning the DOJ may well be done with its review of the internal filter.
Tuesday night’s DOJ filing brought those concerns to the fore, telling the judge that documents that had been cleared by the DOJ’s internal screening team had already been turned over to investigators.
Prosecutors have also aggressively pushed back Trump’s Legal Claims that his executive privilege concerns warranted the appointment.
“Appointing a special master to review documents that may be the subject of executive privilege claims would be particularly inappropriate, as binding Supreme Court precedent precludes plaintiff’s argument that review of such documents by executive staff raise such privilege concerns,” the Justice Department said. Tuesday.
Prosecutors told the judge on Tuesday that if she were to grant Trump’s request, they would seek certain conditions on the operation of the special main process. They asked that his role be limited to solicitor-client privilege claims and that the process of appealing their decisions to court be expedited.
More broadly, the DOJ said the appointment of a special master would not only hamper the criminal investigation, but also hamper the intelligence community’s national security risk assessment.
Among the conditions requested by the Department of Justice was that the special master have a certain level of security clearance if he was going to examine classified documents in the docket.