Lawyers for Donald Trump and the Department of Justice went head to head on Thursday in front of a federal judge in Florida as they fought over whether to appoint a “special master” to review the documents seized by the FBI at Mar-a-Lago earlier this month.
Thursday’s hearing at a federal courthouse in West Palm Beach was the latest stage in the dispute that erupted after Trump’s resort and residence was searched on 8 August. It ended in the afternoon with no immediate ruling. Judge Aileen Cannon said she would issue a ruling written at some point, according to the Associated Press.
The FBI action, conducted in an active criminal investigation about the alleged harboring of secret documents at Trump’s premises, was the first time a former president has been subject to such an indignity in US history.
Cannon, of the federal district court for the southern district of Florida, was appointed to the bench by Trump himself in 2020. She has indicated that she is inclined to side with the former president and appoint a special master – an outside person, usually a lawyer, who would review the documents to see whether any were covered by privilege and should be returned to Trump.
In a filing to the judge on Wednesday, Trump’s legal team called for independent oversight of the justice department’s actions. “The court should task the special master with conducting a review of all of the seized materials … to identify documents subject to attorney-client and/or executive privilege.”
Trump has claimed that because the documents were generated while he was president he has executive privilege over them. He has also claimed that he declassified the documents while he was still in office – though there is no evidence of that being the case.
Prosecutors remain skeptical that the push for a special master is designed to obfuscate and delay the criminal investigation into whether Trump illegally removed highly sensitive material from the White House when his presidency ended in January 2021. The tactics have been frequently deployed by him in other contexts. , including his real estate dealings.
The Department of Justice has set out its opposition to a special master in two separate filings this week. In the first, on Monday, it said it had completed its review of the documents to filter out any that Trump was entitled to be returned and found “a limited set of materials that potentially contain attorney-client privileged information”.
A more detailed filing on Tuesday gave extensive detail about why Trump’s wish for outside review of the DoJ’s actions should be resisted. It bluntly stated that Trump has no claim to executive privilege over the documents because “those records do not belong to him”.
It added that the Presidential Records Act (PRA), a 1970s measure to protect official papers after Richard Nixon tried to destroy Watergate files, granted “complete ownership, possession, and control” of anything produced in the course of presidential business to the US government .
The DoJ is pursuing a criminal investigation of how documents were taken out of the White House by Trump on his departure and relocated to Mar-a-Lago in violation of the PRA. It says that some of the papers are restricted to the highest level of classification, and could put US undercover agents in danger.
At least 320 classified documents have been recovered from Mar-a-Lago since January. Of those, more than 100 were seized in the August search.
As an attachment to its latest filing, the DoJ released a photograph of several document folders marked “Secret” and “Top secret” scattered over a carpet in Mar-a-Lago. Some of the documents were stamped “NOFORN”, indicating they should not be seen by any non-US citizen without permission.
The director of national intelligence is in the process of reviewing the documents retrieved from Mar-a-Lago to see what possible damage they could do to national security were any to have fallen into the wrong hands.