DOJ says Trump’s request for special master may be too late
The department said the privilege review — conducted by a « screening team » designed to filter attorney-client information from investigators investigating potential criminal violations related to national security-related documents stored at Trump’s residence in Florida – is over.
The review appears to have sought only to isolate any potential attorney-client secret documents and left unaddressed Trump’s claims that some of the documents are covered by executive privilege.
The details came in a brief filing by prosecutors submitted to U.S. District Court Judge Aileen Cannon, which deals with a motion Trump filed last week asking for a so-called special master to oversee the processing of documents by the government and to segregate and return any Privileged Material. . Trump’s delay in filing the motion — he waited nearly two weeks after his property was searched on August 8 — appears to have given the Justice Department time to complete its review.
Cannon issued an order on Saturday saying it was inclined to grant Trump’s request for an outside review and asking the government to give Trump a more detailed list of the property taken from Mar-a-Lago during the search for the August 8.
But the filing Monday by Justice Department attorney Jay Bratt and South Florida U.S. attorney Juan Antonio Gonzalez suggests that at least some of what Trump was looking for may be moot.
« Prior to the Court issuing its preliminary order, and pursuant to the terms of the court-authorized search warrant, the lien review team (as described in paragraphs 81-84 of the search warrant affidavit) has identified a limited set of documents that may contain attorney-client privileged information, has completed its review of these documents, and is in the process of following the procedures set forth in…the search warrant affidavit to resolve potential conflicts of privilege, if applicable,” prosecutors wrote.
Bratt and Gonzalez noted that the screening team’s procedures were approved in the search warrant, granted Aug. 5 by Magistrate Judge Bruce Reinhart. They referred Cannon to the recently unsealed affidavit underlying the search, which laid out the process.
« [T]The Privilege Review Team will search ‘Office 45’ and conduct a review of documents seized from ‘Office 45’ to identify and segregate documents or data potentially containing privileged information between the attorney and the client,” says the affidavit.
When the privilege team uncovers potential information about an attorney-client, the procedures offer three options: ask Reinhart to make a ruling, withhold documents from the investigative team, or ask Trump to waive privilege to allow investigators to review the documents. The DOJ said those procedures were followed.
Similarly, the procedures allow the filtering team to transmit any file that it deems not privileged to the investigators. It is not known if the team has already done so in this case.
Prosecutors also noted that the intelligence community is conducting a separate review of the files to determine their classification level and to assess the national security concerns implied by the documents. Director of National Intelligence Avril Haines separately told congressional Democrats that her team was making that assessment.
Monday’s filing did not explicitly state whether Justice Department investigators had actually reviewed the records seized on Aug. 8, including those flagged as part of the lien proceeding. A more detailed dossier from the Ministry of Justice is expected by Tuesday evening.
Cannon has scheduled a hearing Thursday in West Palm Beach to respond to Trump’s request for a special master, usually a retired judge, to oversee the process. While Trump has claimed that many documents are covered by executive privilege, legal experts have cast doubt on how that would apply in this context.
Under the Presidential Archives Act, ownership of the official White House archives transfers to the National Archives at the end of a presidency. There are procedures for asserting executive privilege after a president leaves office, but Trump’s power to make such a claim without the support of President Joe Biden is murky.