The US justice department and the legal team of Donald Trump were due on Friday to jointly file a list of possible candidates to serve as a “special master” to review the records seized by the FBI from the former president’s home.
US district judge Aileen Cannon, a Trump appointee in Florida, granted Trump’s request for a special master earlier in the week. Her order temporarily bars prosecutors from reviewing the seized records as part of their criminal investigation.
On Thursday the department asked Cannon to suspend two main parts of her order: it said it wants to be able to continue reviewing the seized classified materials for its continuing investigation, and it wants to protect them from disclosure to a special master.
It also warned that some classified materials may still be missing, even after an 8 August search of Mar-a-Lago, by the FBI.
The investigation turns on whether Trump improperly removed classified records from the White House and stored them at his home in Palm Beach, and whether he unlawfully tried to obstruct the probe by concealing or removing some of the records when the FBI tried to collect them in June with a grand jury subpoena.
Whoever is tapped as special master will need to weed out anything that should be kept from prosecutors, either due to attorney-client privilege or executive privilege – a legal doctrine that shields some White House communications from disclosure.
The supreme court last year rejected Trump’s bid to keep White House records from the congressional panel that is investigating the Jan 6 riot by his supporters. The US National Archives, after conferring with the Justice Department, also told Trump’s lawyers earlier this year that he cannot assert privilege against the executive branch to shield the records from the FBI.
Cannon’s order has been criticized by Democratic and Republican legal experts. Attorneys have questioned the logic of her decision to include an executive privilege review, because the records are not Trump’s personal property and he is no longer president.
The justice department’s “filter team”, a group of agents who are separate from the investigators, have already reviewed the more than 11,000 seized records. That team identified about 500 documents that could be subject to attorney-client privilege. Meanwhile, there are more than 100 pages recovered by the FBI’s August search bearing classification markings, including some marked “top secret.”
Legal experts have said that finding a special master that both sides can agree on is no easy task.
The person would potentially need to have a top-level security clearance, be an expert on executive privilege and be willing to take on a very public role that would thrust him or her into the political spotlight.
