In a rebuke of the U.S. Department of Justice (DOJ), federal District Court Judge Aileen Cannon denied the agency’s request to exclude specific documents seized from the Mar-a-Lago home of former president Donald Trump from the review by a special master and made a formal appointment to begin the process.
Cannon appointed U.S. District Judge Raymond Dearie, a Reagan nominee to the federal bench since 1986, as the special master tasked with reviewing the documents. Dearie was the only candidate that both the DOJ and Trump legal team agreed on during their negotiations.
According to Cornell Law School’s Legal Information Institute, a special master is an individual appointed by a court to carry out some sort of action on its behalf. In this case, Dearie will be reviewing the documents seized from Trump’s Florida residence and making determinations about what may be protected under attorney-client privilege or executive privilege, which is the right of a president to withhold information in the public interest.
The idea behind executive privilege goes all the way back to the nation’s first president, George Washington, when he resisted attempts by Congress to understand the details of a failed military operation against Native Americans.
It was not until President Dwight Eisenhower, however, that this practice of withholding information became formally known as executive privilege when he refused to allow members of his Cabinet to be questioned in the McCarthy hearings.
At the heart of this latest ruling were 100 apparently classified documents that the DOJ had argued Trump had no right to possess. The DOJ asked Cannon to exempt these documents from the special master review so that they could continue their investigation and the possible pursuit of criminal charges against the former president.
In her ruling Cannon wrote, “The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion.”
Cannon also further delayed the DOJ’s ability to use any of the materials seized in a criminal investigation, extending an order she initially laid down on September 5.
Cannon found that the DOJ failed to “establish that pausing the criminal investigative review pending completion of the Special Master’s work actually will impede the intelligence community’s ability to assess ‘the potential risk to national security that would result from disclosure of the seized materials.’”
The DOJ has signaled that they believe that documents seized in the August 8 raid may have been held by the former President in violation of the Espionage Act, which relates to the misuse of classified documents, as well as record-keeping laws governing the transferal of records by an outgoing president to the National Archives.
Federal agents removed 33 boxes containing roughly 11,000 unique documents, which are now the responsibility of Dearie to review.
Cannon gave Dearie until November 30 to complete his review of the materials, weeks after the national elections in early November, which means no charges could be brought against Trump before then.
Cannon ordered that the cost of the review process to be undertaken by Dearie be paid entirely by Donald Trump.
While Dearie’s rate has not yet been set, former U.S. District Court Judge Barbara Jones was recently appointed as a special master in a 2018 case and charged $700 per hour for her time. If Jones’ rate is any indication of Dearie’s, Trump could face a steep bill for his legal team’s insistence on utilizing a special master.
To expedite the process, Cannon also ordered DOJ prosecutors to provide Trump’s legal team with copies of all non-classified documents so that they may identify any personal documents, privileged presidential records, or other presidential records of note.
If the DOJ disagrees with any of these determinations by Trump’s legal team, the documents will be given over to Dearie to be included as part of his review.