Judge Overrules Special Master’s Demands to Trump in Document Review

Author: Yuvi September 30, 2022

Judge Overrules Special Master's Demands to Trump in Document Review

WASHINGTON — A federal judge on Thursday eased several demands a special master had imposed on former President Donald J. Trump’s lawyers in conducting a review of documents the FBI seized from his residence last month, overruling an arbiter she had appointed herself.

In a six-page order, Judge Aileen M. Cannon of the Southern District of Florida set aside requirements the special master, Judge Raymond J. Dearie, put in place in recent days that would have tested excuses Mr. Trump has made in connection with the trove of documents taken from his estate, Mar-a-Lago.

Judge Cannon also rejected a swift timetable Judge Dearie had set to resolve the review of the documents, slowing the matter down.

While the dueling moves and countermoves by the judges were procedural in nature, they reflected a larger struggle over who should control the rules of the review — and whom those rules would favor. In removing the restrictions the special master had sought to impose, Judge Cannon essentially let Mr. Trump and his legal team out of a box that Judge Dearie had tried to put them in.

As the judge who appointed the special master, Judge Cannon has the authority to overrule Judge Dearie. But a federal appeals court in Atlanta has already blocked part of her original order as well, exempting documents with classification markings from the special master’s review and allowing the Justice Department to continue using them in its investigation.

The first provision Judge Cannon set aside was a measure that had asked Mr. Trump’s lawyers to certify by Friday the accuracy of the FBI’s inventory of the property it seized from Mar-a-Lago — and to indicate whether there was anything that agents did not take from the compound.

That had put Mr. Trump and his lawyers in a bind. If they acknowledged that the bureau had found sensitive documents, the admission could be used as evidence against Mr. Trump.

Moreover, in public statements, Mr. Trump has repeatedly accused FBI agents of planting evidence during their search. The certification that Judge Dearie requested would have required Mr. Trump’s lawyers to either disavow those claims or repeat them in court, where they could face professional consequences for lying.

Mr. Trump’s lawyers objected to that requirement, accusing Judge Dearie of going beyond what he had been authorized to do.

In her ruling on Thursday, Judge Cannon, a Trump appointee, sided with the former president, eliminating the stipulation about the inventory. Her initial order, she said, “did not contemplate that obligation.”

“There shall be no separate requirement on plaintiff at this stage, prior to the review of any of the seized materials,” she wrote.

Judge Dearie had also directed Mr. Trump’s legal team to sort any documents over which he intended to assert executive privilege into two categories: privilege that would shield White House information from disclosure to people outside the executive branch, like Congress, and privilege that would purportedly shield such information from review within the executive branch.

By asking Mr. Trump’s lawyers to do so, Judge Dearie was forcing them to confront the weakness many legal experts say lies at the heart of their contention that executive privilege is relevant in this context: namely, that the Justice Department itself is part of the executive branch.

Mr. Trump’s legal team also objected to that requirement, saying Judge Cannon had not given the special master permission to make them engage in such a distinction. On Thursday, Judge Cannon appeared to side with Mr. Trump on that issue, too.

Mr. Trump’s lawyers need only say whether something was subject to executive privilege — and, if so, to include a statement with “a sufficient description of the rationale and scope of the assertion from which to evaluate the merits of the assertion,” she said.

Judge Dearie had set a brisk schedule for the review. He gave Mr. Trump’s team deadlines in October to finish categorizing the materials in tranches, and he apparently envisioned writing interim reports for Judge Cannon about them.

But Mr. Trump’s lawyers have that the review was too fast; Judge Cannon on Thursday slowed down the process, giving Mr. Trump’s lawyers significantly more time to assess the documents.

Under Judge Dearie’s proposal, he could have analyzed the central issue raised by Mr. Trump’s claims of executive privilege as soon as late October. But Judge Cannon’s order could delay his submission of a report and recommendations to her until December.

The decision by Judge Cannon to side with the former president in installing a special master surprised legal experts, who broadly condemned her legal reasoning.

The ruling by the appeals court freeing the Justice Department to resume its criminal investigation into Mr. Trump’s hoarding of sensitive government documents has raised the question of whether a special master’s review, now relegated to assessing unclassified records, has any significant upside for the former president.

Judge Dearie’s requirements had imposed significant disadvantages for Mr. Trump by threatening to swiftly puncture Mr. Trump’s defenses. But Judge Cannon’s intervention on Thursday eased that threat.

30 September, 2022, 5:15 am

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