By Francisco Alvarado and Sarah N. Lynch
WEST PALM BEACH, Fla. (Reuters) – Former President Donald Trump’s legal team will square off with the U.S. Justice Department in federal court on Thursday in an attempt to convince a judge to appoint a special master to review the materials he seized the FBI Trump’s estate in Florida.
The hearing comes less than two days after prosecutors unveiled new details about their ongoing criminal investigation into whether Trump illegally kept government records and tried to obstruct the government’s investigation by withholding some of them from the FBI.
Trump’s lawyers in a filing late Wednesday played down the administration’s concerns about the discovery of classified material inside his home and accused the Justice Department of escalating the situation even after turning over boxes of documents to the National Archives and allowing FBI agents to June to “Come to his house and give safety advice.”
“Simply put, the idea that the presidential archives would contain sensitive information should never have existed
cause for alarm,” his lawyers wrote.
A special master is an independent third party who is sometimes appointed by a court in sensitive cases to review materials potentially covered by the attorney-client privilege to ensure that investigators are not looking at them properly.
In Trump’s original request to the court, his lawyers argued that the former president wanted to protect materials subject to a legal doctrine known as executive privilege, which can shield certain presidential communications.
Trump’s legal team later narrowed its request by asking for a review of the privileges without specifically citing executive privilege — after many legal experts criticized the argument as absurd.
The Justice Department on Tuesday also echoed those sentiments.
Trump “has no property interest in any presidential records (including classified records) seized from the facility,” prosecutors told the court Tuesday, noting that a former president cannot assert executive privilege against the executive branch itself.
Prosecutors also said the department’s filter team, a group of agents not involved in the investigation, had already reviewed the materials and found that only a limited number could be covered by attorney-client privilege.
U.S. District Judge Elaine Cannon, a Trump appointee for the Southern District of Florida, will preside over Thursday’s hearing.
He previously said he was leaning toward appointing a special master, but that position could potentially change after the Justice Department presented its evidence and arguments late Tuesday.
In their filing, prosecutors revealed that the custodian of Trump’s records, whom they did not name, falsely certified that a thorough investigation had been conducted and that all government records had been returned to the government.
The certification came June 3, when three FBI agents and a top Justice Department official traveled to Mar-a-Lago after a grand jury subpoena was issued to retrieve all remaining records.
During that visit, prosecutors said Trump’s lawyers never claimed he had declassified any of the material and handed over 38 pages marked classified inside a double-taped envelope.
But his lawyer at the same time also barred government investigators from opening or looking inside some of the boxes Trump kept in one of his warehouses, they said.
The department ultimately decided to seek court approval for a search warrant after the FBI developed evidence of possible obstruction.
“The government developed evidence that a search limited to the warehouse would not have uncovered all the classified documents at the facility,” prosecutors said.
“The government also developed evidence that government records were likely hidden and removed from storage and that efforts were likely made to obstruct the government’s investigation.”
The FBI finally searched Trump’s home on August 8 and found more than 33 boxes and other items, including more than 100 pages marked as classified.
Some of the evidence is so sensitive, prosecutors said Tuesday, that some FBI and department officials needed additional clearances before they could review the materials.
They also revealed that FBI agents during their investigation found some classified documents in Trump’s desk drawers, along with his passports.
“The location of the passports is relevant evidence in an investigation into the unauthorized retention and mismanagement of national defense information,” the ministry said.
While the Justice Department’s filing Tuesday contained the most details yet of its investigation, it also separately filed other records under seal at Cannon’s request — including a more detailed list of property seized by the FBI from Trump’s home.
The media on Wednesday filed a motion asking the judge to unseal those records as well.
(Reporting by Francisco Alvarado in West Palm Beach, Fla., and Sarah N. Lynch in Washington; Editing by Matthew Lewis)