Judge grants Trump a special master to review Mar-a-Lago docs

A federal judge threw a wrench Monday in the Justice Department investigation into potential mishandling of documents from former President Donald Trump's White House by granting his request for a special master to review evidence seized from his Florida home last month.

The win for Trump temporarily prevents the Justice Department's investigative team from accessing the thousands of documents — some of which are marked as classified — taken from Mar-a-Lago.

US District Judge Aileen Cannon cleared the way for a third-party attorney to review all the seized materials, not just for documents covered by attorney-client privilege — the circumstance in which special masters are usually used — but also for potential executive privilege concerns, a move the Justice Department has said would be "unprecedented."

Here are some of the key takeaways from the judge's ruling and what happens next:

A significant win for Trump: The primary takeaway is simple, the ruling is a major legal win for Trump.

Trump filed a lawsuit seeking a special master to review the materials the FBI seized last month, and now one will be appointed with the potential to decide that certain materials are out of bounds to the FBI's investigation.

Cannon bought into the skepticism Trump's lawyers raised about the unprecedented search of the Florida resort, as they questioned whether investigators could be trusted to properly filter through the thousands of documents that were seized. The judge rejected the Justice Department's assurances that its internal filter team had already sorted out materials that could be subject to attorney-client privileges.

Ultimately, the special master appointment may merely lead to a delay in the federal investigation into documents taken to Mar-a-Lago, but it now introduces a new layer of uncertainty and unpredictability into the investigation.

The former President did not get absolutely everything he asked for — the judge did not rule that any materials seized from his home should be returned to him, for instance.

Immediate next steps focus on rules for special master: Cannon left undecided many key questions about how the special master will operate. She sketched out a plan for how things will move forward for at least the rest of this week and focused on settling those logistical matters.

She ordered Trump's lawyers and prosecutors to "confer" on several big-ticket items: Who are the proposed candidates to serve as special master? What will their specific "duties and limitations" be? What should be their schedule and pacing? And how much will they be paid for their work?

Both sides were told to file a "joint filing" by Friday, spelling out their answers to these questions. Based on how the case has progressed so far, it seems unlikely that the two sides will agree on much. They'll both be able to put in writing their ideas for how they want this to move forward.

Plans to review for "executive privilege": Trump had said that a special master review needed to go beyond documents covered by attorney-client privilege, and that materials covered by executive privilege should be filtered out as well.

Executive privilege refers to private communications presidents have with their advisers and other types of internal communications within the executive branch that are withheld from public release. While disputes over the privilege have come up in congressional investigations, the reaches of executive privilege — particularly when a former president is arguing it should apply when a current president is declining to assert it — is an unsettled area of law.

Cannon's order requires the special master to examine the documents based on "executive privilege" concerns, making the job more expansive than the attorney-client privilege review that happens typically when a special master is appointed. (Documents potentially covered by attorney-client privilege will be part of this special master's review as well, according to Cannon's order.)

She did not elaborate on the parameters the special master should be considering.

A federal judge has granted former President Donald Trump's request to appoint a "special master" to review materials that the FBI seized from Mar-a-Lago last month.

The decision is a significant victory for Trump but brings new complications to the Department of Justice's closely watched investigation into the White House documents seized from Trump's Florida residence.

Here's what a special master is and what it would mean for the materials seized from Mar-a-Lago.

What is a special master? A special master is a third-party attorney appointed by a court to oversee part of a certain case.

The special master will oversee the Justice Department's review of the evidence gathered from his beach club and filter out privileged material that may have been seized in the search.

It also halts the DOJ from continuing its review of the materials seized from Mar-a-Lago "pending completion of the special master's review or further Court order."

Why did Trump want a special master appointed? Trump's legal team broadly argued that a special master is necessary to ensure the Justice Department returns any of his private documents seized during the search of Mar-a-Lago.

The former President's attorneys said his constitutional rights were violated, and that there may have been privileged materials seized. But in court filings, Trump did not elaborate on what exactly he hoped a special master would filter out, besides general allusions to "privileged and potentially privileged materials."

Still, generally speaking, it is not outside the legal norm for Trump to want a special master involved in the review of the evidence seized from his Florida residence.

What is the DOJ's stance on the matter? The department had signaled that it was using an internal filter team to review the seized items, to separate material that could be subject to privilege claims.

The DOJ said in a court filing last month that it had identified "a limited set of materials" from its search of documents taken from Mar-a-Lago that potentially contained material covered by attorney-client privilege and was in the process of addressing privilege disputes.

Justice officials also confirmed that US intelligence officials were reviewing the documents for classified materials.

Investigators had already mentioned the work of a filter team when they returned to Trump private documents that wouldn't be part of the investigation, such as two expired passports and his diplomatic passport.

The Justice Department, in court documents, had said it believed the evidence it collected at Mar-a-Lago would support its criminal investigation into the mishandling of federal records, including national defense material, after Trump's team took boxes of records to Florida when he left office.

The probe is also looking at potential obstruction of justice in the investigation.

CNN's Katelyn Polantz, Kaitlan Collins, Tierney Sneed and Kara Scannell contributed reporting to this post.

Monday's special master decision by Trump-appointed District Judge Aileen Cannon is a significant victory for former President Donald Trump, who has railed against the Biden administration and Justice Department since the search was executed four weeks ago.

Cannon of the Southern District of Florida, was nominated by Trump to the bench in May 2020 and confirmed by the Senate in a 56-21 just days after the presidential election in November 2020.

She previously served as an assistant US attorney in Florida in the Major Crimes Division and as an appellate attorney, according to written answers she gave to the Senate during her confirmation process.

A University of Michigan Law School graduate, Cannon clerked for a federal judge and later practiced law at a firm in Washington, DC, where she handled a range of cases, including some related to "government investigations," she told the Senate.

At her 2020 nomination hearing, Cannon thanked members of her family and shared the impact of their experience on her own life.

"To my loving mother ... who, at the age of 7, had to flee the repressive Castro regime in search of freedom and security, thank you for teaching me about the blessing that is this country and the importance of securing the rule of law for generations to come," she said.

The Justice Department is reviewing the US District Judge’s decision to grant a special master in the Mar-a-Lago investigation, and is considering “next steps,” a spokesperson said Monday. 

The statement did not explicitly reference any appeal, which is a potential next move for prosecutors.

Judge Aileen Cannon cited a Supreme Court ruling on Trump-linked Jan. 6 investigation documents in justifying the ruling to review executive privilege.

In explaining why she was ordering a special master review for material potentially covered by executive privilege, Cannon said that the Justice Department had not convinced the court that those concerns should be "disregarded," as she went on quote from how the Supreme Court described its move in a dispute this year over former President Donald Trump Jan. 6 documents, including a line from Justice Brett Kavanaugh.

"The Supreme Court did not rule out the possibility of a former President overcoming an incumbent President on executive privilege matters," Judge Cannon said.

She quoted from both the 1977 decision Nixon v. Administrator of General Service and from the order released this year by the Supreme Court when it refused to block the Archives' release to House Jan. 6 investigators Trump White House documents.

"Further, just this year, the Supreme Court noted that, at least in connection with a congressional investigation, '[t]he questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege, are unprecedented and raise serious and substantial concerns,'" Cannon wrote, quoting from the court's order in the Jan. 6 document dispute.

Judge Cannon then added a line from a statement Kavanaugh wrote with that Supreme Court order: "A former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim. Concluding otherwise would eviscerate the executive privilege for Presidential communications.”

Jumping off of those quotes from the Supreme Court, Cannon wrote Monday that "even if any assertion of executive privilege by Plaintiff ultimately fails in this context, that possibility, even if likely, does not negate a former President’s ability to raise the privilege as an initial matter."

Following the federal judge's Monday ruling on appointing a "special master" to review materials seized from former President Donald Trump's Mar-a-Lago home, executive privilege is expected to become an issue as the DOJ likely appeals the ruling.

Judge Aileen Cannon, who was appointed by Trump, rejected the DOJ's "narrow view" of executive privilege, CNN's John King noted on Inside Politics, adding that "the Justice Department's view is that Donald Trump is no longer President, he does not have executive privilege."

He said the judge doesn't say "he definitely does," but instead leaves the role of executive privilege as an "open question."

The judge's overall ruling is "legally unjustified," Jennifer Rodgers, a former federal prosecutor, told King.

"There's just never been a case where irreparable harm has been shown by being under criminal investigation. That's one of the key things that the Justice Department does, the executive branch does, is criminally investigate people. So, the notion that that can establish irreparable harm to me still says that this is a legally wrong decision," she said, regarding the special master.

Rodgers added, "On the other hand, this notion that this is so extraordinary and that she's granting it because it's the former President, I think is sort of good news for the Justice Department, because one of the problems with this is it sets a precedent for other defendants down the road who say, 'Hey, wait a minute, you searched my stuff, I want a special master even though it's not my lawyer's office and there's no reason to believe there's a lot of privileges apply," so, I think that piece of it is good."

Rodgers explained that there is a silver lining, "in the sense that I don't think that ultimately there are going to be a lot of attorney/client privileged documents found... very few attorney/client privilege documents and even the executive privilege side, executive privilege would only only pertain if documents were created in the executive branch, really, at the White House, and so many of these documents are going to have been created other places."

"So, while it does delay things and slow it down, which is bad for the DOJ and their case, I think at the end of the day, we're not going to see a lot of special documents pulled by the master," she added.

CNN's Evan Perez noted, "This issue of executive privilege is sort of just a strange one, right? Because it's never been fought over in something like this. So, we don't know where the courts are going to end up with this, John, and certainly, we don't know if this is going to have to go to the Supreme Court before we're even able to move on."

Judge Aileen Cannon released a ruling responding to former President Donald Trump's bid for a special master to review evidence the FBI seized at his Mar-a-Lago resort last month.

Here are some key quotes from the decision, which was written by Cannon:

Page 9: No sign of "callous disregard" for Trump’s constitutional rights

“With respect to the first factor, the Court agrees with the Government that, at least based on the record to date, there has not been a compelling showing of callous disregard for Plaintiff’s constitutional rights. This factor cuts against the exercise of equitable jurisdiction.”

Page 9: Seized property includes documents about taxes

“The second factor—whether the movant has an individual interest in and need for the seized property—weighs in favor of entertaining Plaintiff’s requests… According to the Privilege Review Team’s Report, the seized materials include medical documents, correspondence related to taxes, and accounting information.”

Page 10: Anti-Trump stigma from Mar-a-Lago search “in a league of its own”

“As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.”

Page 11: Mar-a-Lago search was "undeniably unprecedented"

“Hence, the Court takes into account the undeniably unprecedented nature of the search of a former President’s residence; Plaintiff’s inability to examine the seized materials in formulating his arguments to date; Plaintiff’s stated reliance on the customary cooperation between former and incumbent administrations regarding the ownership and exchange of documents; 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.”

Page 12: Special master needed to "safeguards" on the probe

“For now, the circumstances surrounding the seizure in this case and the associated need for adequate procedural safeguards are sufficiently compelling to at least get Plaintiff past the courthouse doors.”

Page 15: Two instances of DOJ investigators seeing privileged docs

“As reflected in the Privilege Review Team’s Report, the Investigative Team already has been exposed to potentially privileged material. 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 [ECF No. 40 p. 6]. Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process.”

Page 23: "Brief pause" is needed in this investigation

“The Court is mindful that restraints on criminal prosecutions are disfavored but finds that these unprecedented circumstances call for a brief pause to allow for neutral, third-party review to ensure a just process with adequate safeguards.”

You can read the judge's full ruling here.

There were at least two instances where members of the FBI’s investigative team were exposed to material from the search of former President Donald Trump’s Mar-a-Lago residence that was later designated as potentially privileged material, District Judge Aileen Cannon wrote in her order Monday as part of her reasoning to grant a special master. 

In a footnote, Cannon said that the DOJ lawyers argued these examples showed the filter process was working, but Cannon said she was “not so sure.”

“These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material,” she wrote. 

More background: According to the redacted FBI affidavit released last month, the federal investigators used a separate team of agents to search Trump’s office, reviewing that material for possible privilege issues before the material was provided to investigators. 

During last week’s hearing, DOJ lawyers argued that the filter team applied “an extremely expansive view of the attorney-client privilege to be over inclusive and err on the side of caution given the circumstances of the search.”

US District Judge Aileen Cannon set a Friday deadline for Trump’s lawyers and Justice Department prosecutors to negotiate the special master’s “duties and limitations” and to submit a list of potential candidates to serve in the role.

Cannon also wants both sides to propose a schedule for the special master’s review, and to spell out how the person will be compensated for their work.

If the two sides don’t agree on the parameters for the soon-to-be appointed special master, they should explain their differences in a court filing. Their submissions are due on Friday.