Now that a special master has been appointed to review the Mar-a-Lago documents


A federal judge in Florida handed the Justice Department another setback Thursday night in its investigation into former President Donald Trump’s handling of White House documents.

U.S. District Judge Aileen Cannon appointed Raymond Dearie, a senior federal judge in Brooklyn, as special master to review the seized materials. In an order setting out the parameters of the review, Trump mostly backed proposals for the form it could take, creating a slower and more extensive process than prosecutors had recommended.

In perhaps the biggest shot at the Justice Department, it also denied his request to exclude classified seized documents from review, maintaining an order barring their use in criminal investigations.

Cannon’s move puts the Justice Department on the fast track to bringing the material case before an appeals court and possibly the Supreme Court in the coming days.

Here’s what happens next:

When the Justice Department asked Cannon to resume the criminal investigation review of classified documents, he told him that if he did not act by Thursday, prosecutors would seek the intervention of an appeals court.

He met the deadline, but not with the answers they wanted. The denial of the request ensures that the department will file an emergency motion with the 11th U.S. Circuit Court of Appeals as soon as Friday.

Although the government has filed a notice of appeal against its previous order granting Trump’s request for a special master, that appeal will be much slower than the expected higher court case over the Mar-a-Lago documents identified as classified.

Trump’s appointees make up six of the 11 active judges in the 11th Circuit, where the case will be heard. If the Justice Department requests expedited access to the circuit court, it will go to a panel of three randomly selected judges from the court. It is worth noting that Cannon, also Trump’s nominee, has shown skepticism about some of the Justice Department’s arguments. That’s outside the norm for many Republican appointees, so a panel with GOP-picked judges doesn’t necessarily mean the Justice Department’s case is doomed.

From the 11th Circuit, the next stop would be the US Supreme Court, which rejected Trump’s arguments why his White House documents should be removed from the House on January 6, 2021, the researchers said.

While the special master’s process is underway, the Justice Department’s criminal investigation will not be able to use the documents it seized at Mar-a-Lago last month. Cannon’s order Thursday made it clear that this meant the seized materials could not be presented to a grand jury or used in witness interviews.

However, it specified that aspects of the criminal investigation that do not rely on the seized documents could continue and that investigators could gather information about how the documents were generally stored and moved.

The special major review, if it continues unabated, will likely stretch through the midterm elections and the holidays.

By September 25, the special master must notify Cannon of deadlines for the DOJ and Trump’s lawyers to work on the documents.

Cannon ordered the special master to finish by November 30. That’s a month and a half longer than the DOJ expected, but a little faster than Trump’s team had suggested.

Trump, however, will have to pay the costs of the entire special master’s examination, Cannon ruled.

Cannon flatly rejected the Justice Department’s arguments that the order blocking the use of classified documents in criminal investigations was impeding the intelligence community’s assessment of the documents – which he said could continue – with the intelligence assessment now on hold.

The Justice Department argued that intelligence community review and criminal investigations cannot be separated.

But, confusingly, Cannon also said the government could take steps like the criminal investigation it prohibited if those steps were necessary and inseparable from the intelligence community’s assessment.

Cannon did not elaborate on the scenarios under which such investigative moves would be acceptable, saying only in a footnote that he was “confident that the Government will faithfully adhere to the proper understanding of the term ‘indefeasible’ and, to the extent possible, minimize the use and disclosure of seized materials, in accordance with the Court’s orders.” according to”.

Lack of clarity could be one of the problems the Justice Department raises for the 11th Circuit if it asks the appeals court to intervene.

Trump’s lawyers will be able to review all documents currently in prosecutors’ possession, including those marked classified.

Those defense attorneys will get to work, classifying the documents as personal or presidential records, and asserting executive privilege for investigators to decide under which category they want to keep them.

Next comes the special master, who has asked the Justice Department to comment on each document. Dearie will take decisions from the DOJ and the Trump team if the two sides disagree, then make his own calls for Cannon to sign on or reject.

Dearie will coordinate what to do with the documents that the Department of Justice has classified because its filtering team must remain private.

The document-by-document approach will include all evidence seized at Mar-a-Lago before it can be used in the DOJ’s criminal investigation. And that can take months.

While the special counsel will aim to complete his report to the court by December, the process could take longer if Cannon has to resolve lingering disputes. Trump’s lawyers and the Justice Department will have the opportunity to challenge Dearie’s decision on each document, potentially putting some decisions on privilege ultimately up to the judge.