“What’s the expression — ‘Where’s the beef?’ I need some beef,” Judge Raymond Dearie, the independent arbiter, said during a conference call.
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Judge Raymond J. Dearie complained that an initial log of documents over which former President Donald J. Trump is seeking to claim privilege lacked sufficient information.
WASHINGTON — The special master reviewing materials seized by the F.B.I. from former President Donald J. Trump’s compound in Florida expressed skepticism on Tuesday about early claims by Mr. Trump’s lawyers that certain documents were privileged and thus could be withheld from a Justice Department investigation.
In a phone conference, the special master, Judge Raymond J. Dearie of Federal District Court in Brooklyn, complained that the log of an initial batch of documents over which Mr. Trump is seeking to claim privilege lacked sufficient information to determine whether the arguments were valid.
Judge Dearie encouraged Mr. Trump’s lawyers to give him a better sense of why they believed the documents could be lawfully shielded from the Justice Department’s inquiry into whether Mr. Trump unlawfully kept classified records at his estate and obstructed the government’s repeated efforts to retrieve them.
“It’s a little perplexing as I go through the log,” Judge Dearie said. “What’s the expression — ‘Where’s the beef?’ I need some beef.”
The hearing was the latest step in the review process that began last month when Judge Dearie was named special master by one of Mr. Trump’s appointees, Judge Aileen M. Cannon of the Southern District of Florida.
More on the Trump Documents Inquiry
- Supreme Court Request: Without any noted dissents, the justices rejected a request from former President Donald J. Trump that the court intervene in the litigation over documents seized from Mar-a-Lago, his Florida estate.
- A New Detail: A long-serving aide to Mr. Trump was captured on security camera footage moving boxes out of a storage room at Mar-a-Lago both before and after the Justice Department issued a subpoena demanding the return of all classified documents, according to three people familiar with the matter.
- Documents Still Missing?: A top Justice Department official told Mr. Trump’s lawyers in recent weeks that the agency believed he had not returned all the records he took when he left the White House, according to two people briefed on the matter.
- Christina Bobb: As Mr. Trump’s lawyer, the former Marine and far-right cable TV anchor went out on a limb for him. Now she is under scrutiny in the Justice Department’s criminal investigation.
In August, F.B.I. agents conducted a court-authorized search of Mr. Trump’s Mar-a-Lago estate and hauled away some 11,000 documents and photographs, most of them apparently government property and more than 100 of them marked as classified.
Later that month, the former president’s lawyers filed a lawsuit seeking to temporarily bar the Justice Department from using the materials in its investigation of Mr. Trump and asking for a special master to assess whether any of the records were protected by either attorney-client privilege or executive privilege.
Judge Cannon, surprising legal experts, granted the request, which the Justice Department has appealed.
The conference call on Tuesday centered on a small subset of the seized documents, which the Justice Department had already set aside from the main trove. That process was conducted by a so-called filter team, a group of agents and prosecutors who are walled off from those conducting the investigation.
The disputes about the small batch of records could foreshadow conflicts that might emerge as the rest of the materials come under review.
Judge Dearie seemed doubtful, for instance, about one document that Mr. Trump’s lawyers claimed was his personal property — not a government record — and yet also claimed was protected by executive privilege, a designation that is generally used for presidential records.
“Unless I’m wrong, and I’ve been wrong before, there’s certainly an incongruity there,” Judge Dearie said.
The judge also said he wanted more information to support the former president’s claims that some of the documents were shielded by attorney-client privilege. To that point, he asked for the names of any lawyers connected to such materials and suggested that Mr. Trump’s team had asserted privilege over other records even though a third party was involved, suggesting they were not confidential.
“Where third parties are involved in the document, I need some understanding why the presence of the third party doesn’t defeat the privilege,” he said.
James Trusty, a lawyer for Mr. Trump, responded to Judge Dearie’s invitation to address such matters in a submission by saying that the legal team would “certainly take you up on it.”
As the hearing got underway, Judge Dearie also noted that even though Mr. Trump’s lawyers had at one point said that the 11,000 or so documents amounted to about 200,000 pages, the actual number has turned out to be only 21,792 pages.
The reason for the discrepancy, a Justice Department lawyer said, was that a company hired to scan the documents and upload them onto a database so that they could be shared with Mr. Trump’s legal team had overestimated the page count.
During the conference, Judge Dearie chided both sides for not resolving more issues themselves, including a dispute over whether a certain unsigned legal letter addressed to the Justice Department had been sent to the government.
It remains unclear whether the special master process will play out to its conclusion.
The Justice Department recently asked the 11th Circuit Court of Appeals in Atlanta to overturn Judge Cannon’s original decision to intervene in the case and appoint a special master in the first place. The appeals court has already blocked a portion of Judge Cannon’s order and exempted about 100 documents marked as classified from the review.
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Source: nytimes.com
