WASHINGTON — As president, Donald Trump has used a consistent and largely successful strategy to fend off congressional surveillance investigations: stonewalling until the fight reaches the courts. Even if judges ultimately reject his legal claims, he could use the slow pace of court proceedings to run out the clock.
Facing a criminal investigation into the failure to return government documents — which the National Archives had repeatedly requested of him since May 2021 and the Justice Department had subpoenaed last May — the former president is now raising another possible reason for the delay.
He asked a judge to appoint an outside arbitrator, known as a special master, to review all records seized by the FBI in its Aug. 8 search of his Mar-a-Lago estate and identify anyone deemed covered by executive privilege. . Those showing confidential conversations with aides about his official actions would then be held by the FBI.
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The appointment of a special master could block the government from continued access to the records until the special master goes through them and potentially open the way for lengthy litigation that could bog down the investigation.
In essence, the request is puzzling. Trump’s lawyers got it too late, so the FBI has already seemingly looked into everything. Indeed, on Monday, the Justice Department said it had reviewed the documents seized in the investigation and had set aside those potentially covered by attorney-client privilege — a different issue than the one Trump had raised.
“They’ve already looked into it,” said Barbara L. McQuade, a University of Michigan law professor who was U.S. attorney for the Eastern District of Michigan from 2010 to 2017. “The horse is out of the barn.”
Additionally, Trump already tried to assert executive privilege to prevent the FBI from examining boxes of files the National Archives had earlier recovered from Mar-a-Lago. That claim failed after President Joe Biden did not support it and the Justice Department advised the agency that the needs of a criminal investigation might exceed the privilege.
But the Trump appointee overseeing the former president’s request, Judge Aileen M. Cannon of the U.S. District Court for the Southern District of Florida, had already signaled her intention to appoint a special master before even asking the Justice Department to respond .
A hearing is scheduled for Thursday in West Palm Beach, Florida. Cannon may change her mind after the Justice Department presents its arguments.
The government seems to have a lot to say. His three-page filing on Monday said he would soon provide “further details in his forthcoming supplemental filing.” Hours later, she asked for permission to file a response that would go beyond the court’s usual boundaries — and it was granted.
Any order preventing the government from continuing to access the records while a special master, either a judge or a former official with a high-level security clearance, could cause difficulties.
While the FBI already had weeks to evaluate the documents for fairly simple investigative purposes — to determine whether they were government records or contained national security secrets — the government is also looking at them for another, far more complicated purpose.
The Office of the Director of National Intelligence has begun assessing potential national security risks if they were compromised by their insecure storage at Trump’s club.
The bureau and the Justice Department are also conducting a deeper “classification review” of the records, the filing also revealed. That effort could bring clarity to Trump’s disputed claims that he had declassified everything he moved to his Florida residence.
Both of those efforts, along with the criminal investigation into Trump’s retention of sensitive government materials, would also be disrupted if the judge ordered the government to stop reviewing the files while an expert conducted an audit.
Stephen I. Vladeck, a University of Texas law professor who specializes in national security and the federal courts, said the Justice Department would immediately appeal any order.
Such an appeal could work not only because of its legal merit, but also because of how quickly the judges moved before issuing a decision that would be subject to further appeal. (Seven of the 11 judges on the appeals court that will hear the case are Republican appointees, including six chosen by Trump.)
The appointment of a special master would also raise other new legal issues, increasing the possibility of time-consuming litigation to resolve them.
For example, if a special master determines that the government did not have a legal right to seize certain property in an investigation, the special master usually recommends that the judge order the return of that property.
But Trump does not own the documents. When their role in the case is resolved, they will have to be sent to the National Archives, meaning the government will still have them.
One question raised by this scenario is whether Cannon could order the government not to present a document to a grand jury or use it as evidence in any future criminal case. Such an order would have little precedent.
Given those possibilities, Samuel Buell, a criminal law professor at Duke University and a former federal prosecutor, called the prospect of a special teacher at this stage “strange.”
“I think we might be taking this a little too seriously in terms of trying to actually deal with it,” he said. “The more you think about it, the more it doesn’t fit normal procedures. So it could just be throwing dust in the air.”
Another source of confusion is what kind of privileged materials matter: are those subject to attorney-client privilege, meaning they show confidential communications with attorneys about legal matters, or executive privilege?
The FBI anticipated that material potentially subject to attorney-client privilege would require special handling. The affidavit said it created a “privilege review team” to identify any such material and keep it from the investigative team.
But Trump’s request for a special master did not mention the attorney-client privilege. Instead, filings filed by his attorneys only mention executive privilege.
This focus has raised eyebrows. McQuade noted that the privilege is generally a tool to keep internal executive branch matters secret from people outside the executive branch, such as Congress. But the Justice Department is part of the executive branch, and the current president, Biden, has already demonstrated that he will not support Trump’s invocation.
“I think this issue of executive privilege is lost,” he said. “Even if this judge rules in their favor, they can appeal and it seems very likely that the government will prevail.”
Trump’s effort to obtain a special master has been stymied by improper legal filings and unusual procedures. His request was filed separately from the legal battle to unseal records related to the Mar-a-Lago search warrant.
Last week, after receiving an initial request from Trump’s lawyers, Cannon asked them to clarify key questions, such as what they were seeking and why she should handle the case rather than Judge Bruce E. Reinhart, who handled the warrant.
Trump’s legal team filings did not indicate that he has already tried and failed to block the FBI from examining an earlier set of 15 boxes of government records he kept at Mar-a-Lago that he allowed the National Archives to retrieve in January — about eight months after his asked for the first time to return the missing files.
After the National Archives told Trump they intended to show the boxes — which contained highly classified files — to the FBI, he told the agency not to and cited executive privilege, according to a May letter from Debra Steidel Wall. head of the National Archives, to Trump’s lawyers.
The Supreme Court has ruled that former presidents have some residual powers of executive privilege in the records of their own administration, but that they will view it with less deference if the current president disagrees. In this case, Biden transferred his authority to Wall.
Wall moved quickly, consulting with the Justice Department’s Office of Legal Counsel and then rejecting Trump’s invocation of the privilege, her letter showed. But if Cannon appoints a special master and blocks the government from using the records, the ensuing fight would play out in a court system that Trump knows how to navigate slowly.
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