Before the August 8 search of Donald Trump’s Mar-a-Lago mansion and seizure of “top secret” documents, U.S. Magistrate Judge Bruce Reinhart found probable cause to believe that evidence of three different federal crimes would be found there.
On August 22, Trump filed a motion in the U.S. District Court for the Southern District of Florida requesting the appointment of a “special master” to review the documents seized at Mar-a-Lago. Although the Department of Justice (DOJ)’s Filter Team had already segregated documents that might be protected by the attorney-client privilege or executive privilege, Trump wants a special master (usually a retired judge) to inspect them for privileged or potentially privileged material.
Trump’s motion is pending before Judge Aileen Cannon, a Trump appointee. Judge Cannon indicated she is inclined to agree with Trump and appoint a special master. She held a hearing on September 1, but has not yet issued a ruling. A special master could substantially delay the DOJ’s criminal investigation of Trump and his associates.
DOJ Says Government Records Were “Likely Concealed and Removed” and “Efforts Were Likely Taken to Obstruct” Investigation
The motion for a special master provided the DOJ with an opportunity to present a more detailed — and incriminating — narrative about obstruction by Team Trump. In an August 30 filing, the DOJ wrote that “government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.” This led the DOJ to ask Judge Reinhart for a warrant to search Mar-a-Lago.
In its filing, the DOJ wrote:
The FBI uncovered multiple sources of evidence indicating that the response to the May 11 grand jury subpoena was incomplete and that classified documents remained at the Premises, notwithstanding the sworn certification made to the government on June 3. In particular, the government developed evidence that a search limited to the Storage Room would not have uncovered all the classified documents at the Premises.
Although Trump claimed he was “fully cooperative” with government personnel who came to Mar-a-Lago on June 3 pursuant to the grand jury subpoena, his lawyer “explicitly prohibited” them “from opening or looking inside any of the boxes that remained in the storage room,” according to the DOJ.
Trump made the questionable claim that an FBI agent told him on June 3, “Thank you. You did not need to show us the storage room, but we appreciate it. Now it all makes sense.”
During the August 8 search, FBI agents found 13 boxes or containers holding more than 100 documents with classification markings, more than twice the number provided to them on June 3. The DOJ notes in its filing:
That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the “diligent search” that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter.
“[T]he notion that Presidential records would contain sensitive information should have never been cause for alarm,” Trump’s lawyers flippantly wrote in their August 31 filing.
Trump lawyers M. Evan Corcoran and Christina Bobb may become targets or witnesses in the investigation. They might be charged with obstruction and/or making false statements. On June 3, Bobb signed a statement on Trump’s behalf, saying that “based upon the information that has been provided to me,” all documents called for in the subpoena were being returned following a “diligent” search. Corcoran or Trump could have given Bobb that information. Corcoran allegedly told the government agents that all classified documents had been returned.
If Bobb and/or Corcoran assert the attorney-client privilege to avoid testifying against Trump, the crime-fraud exception would compel their testimony if they assisted Trump in the commission of a crime. A federal judge used the crime-fraud exception to the attorney-client privilege when he ruled in March that the House committee investigating the January 6 insurrection could force attorney John Eastman to testify as he provided Trump with legal arguments to overturn the election. The judge found it “more likely than not” that Trump and Eastman conspired to defraud the United States.
Appointing a Special Master Would Impede the Investigation
Appointing a special master is unnecessary, the DOJ maintains in its filing. It “would impede the government’s ongoing criminal investigation” and the “Intelligence Community from conducting its ongoing review of the national security risk that improper storage of these highly sensitive materials may have caused” and “identifying measures to rectify or mitigate any damage.”
Moreover, the DOJ argues, Trump lacks “standing” to seek a special master or the return of the documents since he does not own them. The Presidential Records Act says that presidential records are the property of the government.
And the DOJ writes that a former president can’t assert executive privilege against the executive branch for its performance of executive functions.
During the nearly two-hour hearing on September 1, Judge Cannon signaled that she might appoint a special master but she did not order the FBI to halt its review of the files. On September 2, she unsealed a more detailed list of documents the FBI seized during its August 8 search.
The newly-released inventory includes 31 documents labeled CONFIDENTIAL, 54 labeled SECRET and 18 labeled TOP SECRET. It lists 48 empty folders labeled CLASSIFIED and 42 empty folders labeled for return to a military aide, with no indication of where the missing documents are located.
This detailed inventory also contains more than 11,000 government documents and photographs without classification markings. Classified documents were commingled in boxes with documents that had no classification labels as well as personal items and media articles.
In an attempt to minimize the severity of the retention of government documents at Mar-a-Lago, Trump’s attorney James Trusty compared Trump’s repeated failures to return the documents to the National Archives or fully honor the grand jury subpoena to having an “overdue library book.”
Although Trump maintains that he issued a blanket declassification order so none of the documents at his home were classified, his attorneys wrote that Trump “agrees that it would be appropriate for the special master to possess a Top Secret/SCI security clearance.” Why would a special master need a security clearance if they would not be reviewing classified documents?
Furthermore, CNN reported that none of the 18 former White House aides and advisers they talked to had heard that Trump issued a blanket declassification order and they believed that claim to be patently false.
Nevertheless, none of the three felonies which Judge Reinhart found to be supported by probable cause requires that the documents be classified.
Trump also wants a copy of the unredacted affidavit which provided the probable cause for the search warrant. Judge Reinhart unsealed a heavily redacted affidavit after the DOJ argued that unsealing the unredacted affidavit could endanger informants and imperil the investigation.
In the unlikely event that Judge Cannon unseals the unredacted affidavit, it will invariably contain more damning evidence against Team Trump.
The evidence seized during the search of Mar-a-Lago strengthens the criminal case against Trump and/or his attorneys and associates.
If Judge Cannon appoints a special master, it would likely delay the investigation. It could also have political ramifications, diverting public attention away from Trump’s wrongful possession of classified documents as the midterm elections approach.