WEST PALM BEACH, Fla. — A federal judge indicated Thursday that she’s seriously considering temporarily barring Justice Department investigators from reviewing material seized from Donald Trump’s Mar-a-Lago estate.
U.S. District Court Judge Aileen Cannon suggested that she’s mulling imposing that restriction, while potentially allowing an exception for the intelligence community to continue reviewing national security risks from the potential exposure of the seized documents.
Justice Department attorneys pushed back sharply against that outcome, warning against any disruption to their ongoing criminal investigation of Trump’s handling of classified documents. Cannon, who previously said she’s inclined to appoint an outside review of the materials seized form Trump’s estate, appeared undeterred during a 90-minute hearing that featured arguments from DOJ counterintelligence officials and Trump’s legal team.
Justice Department attorneys repeatedly pleaded with Cannon not to interrupt their ongoing criminal probe, emphasizing that the search warrant executed on Aug. 8 was clearly valid and authorized to obtain “evidence of three significant federal crimes.”
“He is no longer the president and because he is no longer the president he did not have the right to take those documents,” said Jay Bratt, the chief of the Justice Department’s counterintelligence division. “He was unlawfully in possession of them…This plaintiff does not have an interest in the classified and other presidential records.”
Cannon, a Trump appointee, said she was concerned about a couple of instances in which the investigative team had flagged potentially privileged material that was not screened out during the initial review of records by the DOJ “filter team” assigned to prevent such occurrences. She also indicated she might support a special master with broad purview to screen documents for any potentially subject to executive privilege claims by Trump — despite DOJ’s argument that no such claim could ever be upheld.
“It would be unprecedented for the executive to be able to successfully assert privilege against the executive branch,” said Julie Edelstein, Bratt’s deputy.
If Cannon ultimately issues an order that embraces these positions, it could cause significant disruption to DOJ’s investigation. Although DOJ warned that such a disruption would also harm the intelligence community’s review of the seized records for risks to national security, Cannon said she envisioned a potential carveout to allow that review to continue, even while DOJ would lack access.
Bratt said that if Cannon opted to deploy a wide-ranging special master and prevent DOJ from accessing the materials during the review, she should issue a formal injunction. The Justice Department would be allowed to appeal such an order.
Cannon didn’t press Trump’s team about the former president’s claim to have declassified many of the materials seized during the search, but she did pause to correct Bratt when he called the documents classified rather than “marked as classified.”
“We treat them as ‘presumptively classified,’ “ Bratt replied. “We would not turn them over to somebody who does not have the appropriate clearances.”
Trump’s team, however, said they were requesting access to all of the seized materials to lodge potential privilege claims.
Trump’s attorneys repeatedly underscored the historic nature of the investigation into Trump, not a run of the mill case about mishandled classified records.
“This is not a case about some Department of Defense staffer stuffing military secrets into a bag and sneaking them out in the middle of the night,” said James Trusty, one of three Trump attorneys handling the arguments.
Trusty argued that the government’s posture toward Trump misconstrues the role of the Presidential Records Act, which contemplates a give-and-take negotiation between a former president and the National Archives over retention of some records — and includes no criminal enforcement mechanism.
“They’re trying to criminalize … the judicially unenforceable presidential records act, “Trusty said.
Trump’s legal team is seeking the appointment of a so-called special master, who would review documents the FBI seized from his Mar-a-Lago estate last month after a federal magistrate judge here issued a search warrant for evidence of highly classified documents and obstruction of justice.
Cannon, a Trump appointee confirmed about a week after his defeat in the 2020 presidential election, indicated last week that she was inclined to grant Trump’s request although she stopped short of approving it at that time.
Prosecutors also made clear that if Cannon does appoint a special master, that person’s authority should be confined to doing a fresh look only for potential attorney-client communications and not extend to other information Trump has argued should be kept from investigators, like records subject to executive privilege.
The court session Thursday also drew unusual attention for reasons beyond the potential special master appointment after the Justice Department used a filing in the case on Tuesday to air claims that Trump lawyers falsely asserted all documents marked classified were turned over in response to a grand jury subpoena issued in May.
That representation now appears to have been false: Prosecutors included a photograph from the Aug. 8 search showing a slew of documents with classification markings found discovered in Trump’s Mar-a-Lago office. Trump seemed to acknowledge Wednesday that he was aware of the presence of classified documents in his office, criticizing agents for splaying the records on the floor rather than keeping them in the “cartons” he said they had been stored in.
Trump’s lawyers faced the challenging task Thursday of trying to convince the judge to appoint a special master with a broad mandate, while trying to avoid locking Trump into factual claims that could undermine potential defense if he is ultimately charged.
Thursday’s hearing was the first public court session Cannon has conducted on the matter since Trump filed a motion almost two weeks ago seeking outside oversight for the Justice Department probe.
Cannon usually sits at a federal courthouse in Fort Pierce, Fla., about an hour’s drive north of here. However, she elected to hold Thursday’s hearing at the older courthouse in West Palm Beach, about 3 miles from Trump’s Florida home which also doubles as a private club.
It also marked the first public appearance by Christopher Kise, a veteran Florida litigator, in connection with the case since he was added to Trump’s legal team in recent days.
Kise, a former Florida solicitor general who has argued before the Supreme Court, has been a longtime adviser to Republican officeholders in the state, including Gov. Ron DeSantis and former Govs. Rick Scott and Charlie Crist.
Kise told reporters “it went well” as he left the courthouse Thursday and flashed a thumbs up to a Trump supporter who predicted the former president would prevail. Trusty didn’t comment to reporters. Evan Corcoran, one of Trump’s other lawyers in the suit, dodged questions about whether he had hired an attorney of his own, a reference to reports that he played a role in a false certification given to the Justice Department on June 3 about the presence of documents marked classified at Mar-a-Lago.
Trump on a Thursday radio show continued to insist he “declassified” documents, an assertion his lawyers did not make in their Wednesday filing.
CORRECTION: A previous version of this report misstated the length of a
hearing that featured arguments from DOJ counterintelligence officials
and former President Donald Trump’s legal team. It was 90 minutes.