The parallel “special master” process spawned by the FBI search of Donald Trump’s Florida estate has slowed the Justice Department’s criminal investigation and exposed simmering tensions between department prosecutors and lawyers for the former president.
The probe into the presence of top-secret government information at Mar-a-Lago continues. But barbed comments in the past week’s court filings have laid bare deep disagreements related to the special master’s work. And the filings have made clear that a process the Trump team initially sought has not been playing to the president’s advantage.
A look at where things stand:
WHO IS THE SPECIAL MASTER AND WHAT IS HIS ROLE?
A federal judge in Florida appointed at the Trump team’s request an independent arbiter to inspect the thousands of documents seized from Mar-a-Lago and to weed out from the investigation any that might be protected by claims of either attorney-client privilege or executive privilege.
That arbiter, formally known as a special master, is Raymond Dearie. He’s a former federal prosecutor who was appointed a U.S. District judge in Brooklyn by then-President Ronald Reagan. He also has served on the Foreign Intelligence Surveillance Court.
However, since his current appointment by U.S. District Judge Aileen Cannon, the scope of his responsibilities has been hemmed in by a federal appeals court. That court last week ruled overwhelmingly in favor of the Justice Department, concluding that it did not have to share with Dearie for his review the roughly 100 documents with classified markings taken during the Aug. 8 search.
That leaves for his evaluation the roughly 11,000 other, unclassified documents — which a Trump lawyer said actually total roughly 200,000 pages — recovered by the FBI.
WHAT HAS HAPPENED SINCE THEN REGARDING CLASSIFIED DOCUMENTS?
The past week or so has revealed stark divisions in how both sides envision the process playing out, as well as the precise role the special master should have.
An early hint surfaced when the Trump team resisted Dearie’s request for any evidence that the documents, as Trump has asserted, had been declassified. A lawyer for Trump, James Trusty, said that inquiry was “premature” and “a little beyond” what Cannon, had had in mind at the time she appointed the special master. Dearie mused aloud that “my view of it is you can’t have your cake and eat it,” by ducking that question.
The following day, in a setback for the Trump team, the U.S. Court of Appeals for the 11th Circuit overruled an order from Cannon that had temporarily halted the Justice Department’s ability to use the classified documents taken from Mar-a-Lago as part of its criminal investigation. Besides restoring the department’s access, the order also lifted Cannon’s mandate that investigators provide the special master with those records.
More conflict followed, this time related to the scanning and processing of non-classified government records taken from Mar-a-Lago.
Government lawyers revealed in a letter Tuesday that none of the five document-review vendors it had recommended for the job was “willing to be engaged” by the Trump team. The Justice Department said it was confident that it would be able to secure the arrangements on its own while noting that it continued to expect the Trump team to pay.
But Trusty responded with his own letter Wednesday attributing the difficulty in securing a vendor to the sheer quantity of documents, which he said totaled roughly 200,000 pages. He said the department’s deadlines for the production of documents was overly “aggressive” — “It would be better to base deadlines on actual data and not wistful claims by the Government” — and scolded the department for what he said were its “antagonistic” comments.
“DOJ continues to mistake itself as having judicial authority. Its comments are not argument, but proclamations designed to steamroll judicial oversight and the Plaintiff’s constitutional rights,” Trusty wrote.
WHAT IS LIKELY TO HAPPEN NEXT?
The FBI’s investigation into the retention of classified records at Mar-a-Lago took a major step forward when the appeals court lifted Cannon’s hold on its ability to use those documents in evaluating whether Trump or anyone else should face criminal charges.
Dearie’s work as special master will continue alongside that probe but there’s little chance any action he takes at this point could substantially alter the outcome of the investigation or affect major decisions that lie ahead.
Even so, there’s a pending request from Dearie that has attracted significant attention — and any answer to it could prove illuminating.
He has given the Trump team until Oct. 7 — the first deadline had been Friday, but has now been pushed back — to raise any objections to the detailed property inventory of documents and items taken by the FBI.
That filing matters because Trump and some of his allies have raised unsupported suggestions that the agents who searched his home may have planted evidence. If his lawyers affirm the inventory’s accuracy, they will be contradicting their own client’s claims and also acknowledging the presence of classified materials in the home.
The Justice Department this week made what it called minor revisions to the inventory, but said it was an otherwise full and accurate accounting of what was taken.
Yet newly disclosed correspondence suggests the Trump team is balking at making its own public assessment of the inventory’s accuracy. Trusty said in a letter Sunday that the directive that it do so goes beyond what Cannon had envisioned when she appointed Dearie and that, besides, the Trump team does not have access to the classified documents it would need for such a review.
The Justice Department, for its part, suggested that the Trump team should not be able to avoid stating its position on the record or following other of Dearie’s directives.
“The Special Master needs to know that he is reviewing all of the materials seized from Mara-Lago on August 8, 2022 — and no additional materials — before he categorizes the seized documents and adjudicates privilege claims,” the department said.
The letter Tuesday ended with this tart reminder to Trump and his lawyers: “Plaintiff brought this civil, equitable proceeding. He bears the burden of proof.”