(CN) — The Department of Justice may yet challenge the appointment of a special master to review records seized from the former President Donald Trump’s south Florida resort home. But some experts say the department could have already gathered what it needs for potential criminal indictment.
Former federal prosecutor Neama Rahmani told Courthouse News that U.S. District Judge Aileen Cannon’s decision to order the government to stop using the seized materials for its criminal investigation until completion of a review by a neutral third party is surprising, but “it won’t change the ultimate outcome.”
“If the search warrant was just to retrieve the documents because Trump wouldn’t return them voluntarily, or in response to a grand jury subpoena, then the case is over,” Rahmani said.
If the department is looking, however, to indict Trump or others for possible wrongdoing involving the records, Rahmani pointed out that any seized documents determined to be privileged could not be used as evidence — regardless of whether there is a special master or not.
But former Attorney General William Barr, who served under Trump, said during a Fox News interview Tuesday that the fundamental dynamics of the government’s case are already set: classified government documents were taken and not handled appropriately, and the department is looking into whether classified documents requested in a May 11 grand jury subpoena were returned.
“And none of that really relates to the content of documents — it relates to the fact that there were documents there, they were classified, and they were subpoenaed and never delivered,” Barr said on Fox.
“They don’t have to show the content, y’know, the specific advice given in a memo, for example, in order to prevail in this case,” he said, referring to the controversial 2019 Office of Legal Counsel memo he referenced in his decision not to recommend charges against Trump over allegations he obstructed Special Counsel Robert Mueller's probe into Russian meddling in the 2016 presidential election.
According to the search warrant application unsealed last month, the search was related to potential violations of three criminal statutes: willful retention of national defense information, concealment or removal of government records and obstruction of a federal investigation.
As Rahmani suggested, Barr told Fox he does not see the appointment of a special master “fundamentally changing the trajectory” of the government’s plan, likening it to “a rain delay for a couple of innings” in a baseball game.
The Department of Justice requested that Judge Cannon only allow the reviewer access to the “limited set” of materials the department’s privilege-review team already identified as potentially subject to attorney-client privilege.
But Judge Cannon, whom former President Trump appointed to the federal bench in 2020, ruled that the reviewer can access all 20 boxes of documents, including 11 sets of classified materials, that were taken from Mar-a-Lago on Aug. 8.
The Justice Department said it identified personal items, some privileged materials and at least 520 pages of potentially privileged material within the 20 boxes.
Anthony Coley, a spokesman for the department, said in a statement that the government is examining Cannon's opinion and “will consider appropriate next steps in the ongoing litigation.”
If the department appeals, Columbia Law professor Jennifer Rodgers said she does not think it would be as burdensome as allowing the judge’s decision to go unchallenged.
“An appeal would cause a delay but likely not as much as the process for finding and gaining security clearance for a special master, coupled with the time it would take the master to conduct a review and return the documents,” Rodgers wrote in an editorial for CNN.
Judge Cannon acknowledged in her 24-page ruling the government’s argument that a special master review could delay the ongoing national security risk assessment by the Office of the Director of National Intelligence. She said her order does not impact the intelligence review because the court “understands … [the] national security concerns.”
But when it comes to the Department of Justice’s ongoing criminal investigation involving the materials, Judge Cannon said “under the present circumstances” she does not believe a special master review “would cause undue delay.”
She points to a 2019 Fourth Circuit case involving a Baltimore law firm, in which judges found that a federal magistrate approved a filter protocol without conducting adversarial proceedings that would have allowed the defense to advocate for proper safeguards.
Judge Cannon highlighted the circuit’s finding that that government “should have been fully aware that use of a filter team in these circumstances was ripe for substantial legal challenges, and should have anticipated that those challenges could delay its investigations.”
Trump’s counsel also cited the 2019 opinion in their lawsuit, suggesting that, “here, too,” U.S. Magistrate Bruce Reinhart approved the government’s filter protocol “without input from the defense.”
Judge Cannon mentioned the need for the “appearance of fairness” four times in her opinion, and reiterated Trump’s counsel’s argument that “the investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness.”
While Trump “ultimately may not be entitled to return of much of the seized property or to prevail on his anticipated claims of privilege,” Judge Cannon said, “that inquiry remains for another day.”
Judge Cannon resisted determining whether Trump can assert executive privilege over the seized materials — something Debra Steidel Wall, the acting archivist of the United States has also not tackled — which means an 11th Circuit appeal in uncharted legal territory may push the former president’s case up to the Supreme Court.
“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,” Cannon wrote.
She ordered Trump’s attorneys and the Justice Department to file a proposed list of special masters with high-level security clearance by this Friday.
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