A federal judge in Florida declined to rule from the bench Thursday after hearing arguments on former President Donald Trump’s request for a neutral third party to review documents seized from his home by FBI agents seeking classified records.
U.S. District Judge Aileen Cannon said she would issue an order later as the hearing in West Palm Beach wrapped up. Trump started the hearing with the upper hand after Cannon issued a preliminary order over the weekend saying she was leaning toward granting his request.
Cannon, a Trump appointee, also said she would unseal a more detailed list of items seized from Mar-a-Lago after neither side objected. A cursory list of such items was made public earlier, revealing the highly sensitive nature of some of the material Trump held at his home.
The Justice Department argued Trump has no right to a special-master review, and that allowing one now would be unprecedented because the seized documents — many of them highly classified — do not belong to him.
“He is no longer the president,” Jay Bratt, the Justice Department’s counterintelligence chief, told the judge at the hearing. “And because he is no longer the president, he did not have the right to take those documents. He was unlawfully in possession of them.”
Trump’s new criminal defense attorney, Christopher Kise, the former Florida solicitor general, accused the government of exaggerating the threat posed by Trump and his possession of the documents.
“What we’re talking about are presidential records in the hands of the former president of the United States,” Kise said in opening remarks to the judge. “This is not a case about some Department of Defense staffer stuffing papers in a bag and sneaking out in the middle of the night.”
Trump’s lawyers also downplayed the significance of the documents, hinting that they may not be classified at all and comparing the whole dispute to an “overdue library book scenario” that was blown out of proportion by the National Archives.
Benjamin Hawk, a DOJ lawyer who is part of the filter review team that scanned the documents for any potentially covered by attorney client privilege, told the judge they had set aside 64 sets of materials covering about 520 pages, though they think most of them won’t be privileged in the end.
“There is not a high volume,” he said.
The records were taken by Trump from the White House after he lost the 2020 election to President Joe Biden. But the search of the former president’s home has roiled U.S. politics two months before the midterm elections and amid speculation Trump will run for a second term in office in 2024.
During the hearing, Cannon asked the lawyers about their views on a hypothetical order that would appoint a special master while also allowing the DOJ’s national security review of the documents to continue. Her questions also signaled that such an order might temporarily prevent the documents from being used by prosecutors to develop any criminal case. Neither side signaled happiness with such an order.
Lawyers for both sides used the hearing to reiterate arguments made in their filings with the court, with the government saying a special master will delay a crucial investigation and Trump’s lawyers saying a neutral review will restore faith in the Justice Department.
Trump asked for the appointment of a special master after FBI agents seized roughly 20 boxes of documents from his Mar-a-Lago resort and home on Aug. 8. The stash included 11 sets of classified documents, including some labeled with the highest top-secret rating, the DOJ has said.
The case is rooted in Trump’s voluntarily return of 15 boxes of records in January after months of negotiations with the National Archives. The Archives found highly classified documents in the trove and referred the matter to the Justice Department, which began a probe to determine if Trump had more such materials in his possession.
The court unsealed the search warrant in the case as well as part of the FBI affidavit that was used to secure it. But the redactions have so far prevented the public from learning how the DOJ was able to determine that Trump wasn’t handing over all the classified records in his possession. The case involves numerous civilian witnesses, according to the DOJ.
Another Trump lawyer, James Trusty, criticized the government for allowing the search warrant for the former president’s home to be unsealed, even though Trump’s lawyers didn’t object to the unsealing at the time and Trump and his allies were calling for the document to be made public. The warrant revealed the DOJ was investigating significant potential crimes that implicated national security. Trusty said the unsealing was an “extraordinary moment” and referred to it as “completely unfettered conduct” by the DOJ.
Trump’s lawyers signaled a broad potential challenge to the search itself — not just documents that might be covered by any kind of privilege. “They should not have the benefit of this information to try to build a criminal case when they were never entitled to walk through the door and seize any of these documents,” another Trump lawyer, Evan Corcoran, said.
Bratt argued that it was too early for Trump to challenge the records that were seized because he hasn’t been charged with anything. Were that to happen, Bratt said, Trump would be able to move to suppress evidence on the grounds that it was seized improperly and attempt to prove that in court.
