Judge agrees to name "special master" to review items seized in Trump search

Washington — A federal judge on Monday agreed to appoint a neutral third party known as a special master to review items seized by the FBI during its search at former President Donald Trump's South Florida residence, and blocked the Justice Department from continuing to use the material in its probe while the review is ongoing.

U.S. District Judge Aileen Cannon said in a 24-page order that the special master would be tasked with reviewing the seized property for "potentially privileged material subject to claims of attorney-client and/or executive privilege." In the meantime, the government must "temporarily" stop "reviewing and using the seized materials for investigative purposes pending completion of the special master's review or further Court order."

But Cannon allowed the government to continue reviewing and using the materials seized for "purposes of intelligence classification and national security assessments."

Citing a report from a FBI team tasked with reviewing the documents for those that may be privileged, Cannon wrote the material seized from Mar-a-Lago includes "medical documents, correspondence related to taxes, and accounting information."

In addition to "being deprived of potentially significant personal documents, which alone creates a real harm," Trump faces an "unequitable potential harm by way of improper disclosure of sensitive information to the public," she wrote.

"As a function of plaintiff's former position as president of the United States, the stigma associated with the subject seizure is in a league of its own," Cannon wrote in her order. "A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude."

Anthony Coley, a Justice Department spokesman, said the government "is examining the opinion and will consider appropriate next steps in the ongoing litigation."

Trump's lawyers and Justice Department attorneys have until Sept. 9 to "meaningfully confer" and submit to the court a joint filing that includes a list of proposed candidates to serve as special master along with a proposed description of the mechanics of the review.

Trump's request for a special master came two weeks after the FBI executed the search warrant at his Mar-a-Lago estate on Aug. 8, when agents took 33 items from a storage room on the property and the former president's office. More than 100 documents with classification markings were found in 13 boxes or containers, while three documents with "confidential" and "secret" classification markings were taken from desks in Trump's office at Mar-a-Lago, the Justice Department revealed in a filing last month.

The FBI also found 48 empty folders with "classified" banners alongside newspaper and magazine articles, books and pieces of clothing kept in boxes or containers retrieved from the storage room, according to a detailed list of property taken from Mar-a-Lago made public last week.

The former president argued an independent third party should be appointed in order to protect his constitutional rights and told the court last month that the FBI took "presumptively privileged" documents from his time in office. Trump has also criticized the Justice Department for what he said was an "unprecedented, unnecessary and legally unsupported" search of his property, and claimed the sensitive records he brought with him from the White House to Mar-a-Lago at the end of his presidency are "his own presidential records."

But the Justice Department, which opposed the appointment of a special master, told the court the documents seized by the FBI were not Trump's to keep, but rather belonged to the federal government and should have been returned to the National Archives and Records Administration at the end of the administration.

Federal prosecutors also argued a special master was unnecessary because a FBI filter team — used to sift through and separate documents that may be privileged — had already completed a review of the records that may be covered by attorney-client or executive privileges. 

Investigators are probing Trump's handling of classified material, specifically records he brought from the White House to Mar-a-Lago when he left office in January 2021, as well as possible obstruction of the investigation.

The investigation stemmed from a referral made by the Archives in February, after it retrieved 15 boxes containing presidential records from Mar-a-Lago following efforts to retrieve the documents that spanned months. FBI agents conducted a preliminary review of the boxes in May and found 184 documents bearing classification markings, according to the Justice Department.

In an extraordinary 36-page court filing submitted Aug. 30, federal prosecutors said the government developed evidence that "government records were likely concealed and removed" from the storage room at Mar-a-Lago after the Justice Department obtained and served a grand jury subpoena for any documents in Trump's possession bearing classification markings. They also alleged "efforts were likely taken to obstruct" the Justice Department's investigation.

Cannon held a hearing on Trump's request for a special master last week but declined to issue a decision from the bench. She did, however, order the release of the detailed list of property seized by the FBI during its search at Mar-a-Lago, which was made public Friday, along with the government's description of the status of its reviews.

Jeff Pegues contributed reporting.