Judge halts prosecutors from using Trump Mar-a-Lago materials for criminal investigation | Washington Examiner

2022-09-12 00:25:39 By : Ms. Yanqin Zeng

A judge placed a roadblock on federal prosecutors conducting a criminal investigation into former President Donald Trump's handling of documents until a special master is appointed and has completed his or her work.

"The Court does not find that a temporary special master review under the present circumstances would cause undue delay" to the investigation, said U.S. District Court Judge Aileen Cannon of the Southern District of Florida, granting Trump's motion for a third-party review to look for privileged materials. She said the government is "temporarily enjoined from further review and use of any materials seized from" Trump's Mar-a-Lago resort in Florida last month "for criminal investigative purposes" until the special master's review process is complete.

Judge Cannon BLOCKS prosecutors from continuing their criminal investigation until the special master completes his/her work: "[T]he Court does not find that a temporary special master review under the present circumstances would cause undue delay [to the investigation]."

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Trump's legal team argued its client's constitutional rights were violated and that there may have been privileged documents among those taken by federal officials, and the former president is pursuing the appointment of a special master, often an attorney, to review independently the evidence that the FBI seized from his Mar-a-Lago resort in Florida last month. The Justice Department opposes a third-party review of the materials seized from Mar-a-Lago, warning of the harm such a process could have to national security and the criminal investigation.

Cannon, a Trump appointee, granted Trump's motion to appoint 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." Cannon ordered that the special master "review the seized property, manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property."

The judge noted the order does not stop the classification review and/or intelligence assessment by the Office of the Director of National Intelligence. "The Government may continue to review and use the materials seized for purposes of intelligence classification and national security assessments." the judge said.

Citing U.S. Code, the judge also recognized that under the Presidential Records Act, “'the United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist' to permit public dissemination of presidential records 'violates the former President’s [constitutional] rights or privileges.'"

Trump is under investigation for possible violations of the Espionage Act and obstruction of justice over his handling of government or presidential documents after leaving office, according to the unsealed search warrant. Trump claimed he declassified all the documents seized at Mar-a-Lago, and the former president has denied any wrongdoing. The U.S. government said more than a hundred documents with classified markings, thousands of government documents without classified markings, and empty folders and other miscellaneous items were found in the Aug. 8 raid.

Attorney General Merrick Garland has said the Justice Department will speak about the search through court filings. An underlying affidavit, which was released with heavy redactions, said it sought authorization to search Trump's office, storage rooms, and any other rooms where boxes or records may have been stored within the premises. The judge unsealed on Friday a detailed inventory of items seized from Trump's estate.

In a filing, prosecutors said the “appointment of a special master is unnecessary and would significantly harm important governmental interests, including national security interests," and "would impede the government’s ongoing criminal investigation."

A government "filter team" has "already completed its work of segregating any seized materials that are potentially subject to attorney-client privilege, and the government’s investigative team has already reviewed all of the remaining materials, including any that are potentially subject to claims of executive privilege," the DOJ filing added.

Still, Cannon said, "In addition to being deprived of potentially significant personal documents, which alone creates a real harm, Plaintiff faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public."

The judge on Monday asked both parties to confer and submit joint filings with a list of proposed special master candidates by Friday, as well as make proposals on duties and limitations.

It remains unclear how the Justice Department will respond to the judge's ruling. "The United States is examining the opinion and will consider appropriate next steps in the ongoing litigation," a DOJ spokesperson told Politico.

Norm Eisen, a senior fellow at the Brookings Institution who served as counsel to House Democrats for the first impeachment and trial of Trump, said Cannon made the wrong ruling and encouraged the Justice Department to appeal.

BREAKING: Judge Cannon has ruled—wrongly— that a special master should be appointed to review the documents obtained from Mar-a-Lago for executive and other privileges. Because this includes an injunction vs investigative use, DOJ can and should appeal. More to follow. pic.twitter.com/ZnK8SRtQld

Although Trump claimed he declassified all the documents stored at Mar-a-Lago, his legal team said it agrees with the government that "it would be appropriate for the special master to possess a Top Secret/SCI security," that the court "should direct the parties to confer and submit a joint list of proposed candidates by September 7, 2022,” and that the special master "should be required to submit an affidavit concerning any potential bases for disqualification before this Court issues an appointment order."

The Trump team also said the government should provide it and the special master with "a copy of the Seized Materials, a copy of the Search Warrant, and an unredacted copy of the underlying application materials. In light of the deficiency of the initial property inventory (inventory) unsealed by the Government, the Movant respectfully asks for access, even if under seal, to the recent submission by the Government that purports to better particularize the seized items and the location of their seizure. The special master should also have access to any other relevant materials, information, or individuals that are necessary to perform the assigned duties."

In what began as a National Archives and Records Administration effort to retrieve documents from Trump after he left office and led to a Justice Department investigation, classified documents have been obtained from Trump's Mar-a-Lago resort. A photo included as an exhibit in the DOJ filing last week showed a series of documents on a carpeted floor, some with "secret" or "top secret" marked on them. A box with a framed copy of the Time magazine Trump was on the cover of can also be seen in the photograph.

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The Trump team on Wednesday accused the DOJ of having "significantly mischaracterized" a June meeting between Trump representatives and federal investigators and criticized prosecutors for "gratuitously" including the photograph of "allegedly classified materials, pulled from a container and spread across the floor for dramatic effect," in its filing on Tuesday.

In January, following weeks of communication with Trump's team, the National Archives said it retrieved 15 boxes of presidential documents before discovering classified material and referring the matter to the Justice Department. DOJ officials visited Trump's lavish Palm Beach resort in June and collected another batch of documents possessing sensitive national security information holed up in the basement of Mar-a-Lago. The DOJ then subpoenaed the Trump Organization on June 22 for security footage of the area where the documents were stored. Investigators sought the footage to shed light on who had access to areas where the documents were stored, the Wall Street Journal reported. Trump lawyer Christina Bobb signed a document in June asserting that all the classified material had been returned to the government, the New York Times reported.

"Remember, it takes courage and 'guts' to fight a totally corrupt Department of 'Justice' and the FBI," Trump said on Truth Social on Monday. "They are being pushed to do the wrong things by many sinister and evil outside sources. Until impartiality, wisdom, fairness, and courage are shown by them, our Country can never come back or recover — it will be reduced to being a Third World Nation!"