The Justice Department and the former president’s legal team will square off in federal court in Florida over a request for an independent review of materials seized from Mar-a-Lago.
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The appointment of an independent arbiter is unlikely to derail the Justice Department’s inquiry into whether former President Donald J. Trump illegally held onto national security papers at his beachfront property.
When a federal judge in Florida convenes a hearing on Thursday afternoon to decide whether to appoint an independent arbiter to review the sensitive documents that were seized last month by the F.B.I. during a search of Mar-a-Lago, former President Donald J. Trump’s Florida residence, there are likely to be complicated legal arguments and sweeping characterizations of the extraordinary law enforcement action.
But while the underlying investigation has immense legal and political consequences, the issue being debated at the proceeding is a fairly procedural one.
The appointment of an independent arbiter — known as a special master — could potentially delay the process of reviewing the trove of materials that investigators carted away from Mar-a-Lago on Aug. 8. But it would be unlikely to derail the Justice Department’s inquiry into whether Mr. Trump illegally held onto national security papers at his beachfront property or obstructed attempts by federal prosecutors to examine and retrieve them.
The hearing, in Federal District Court in West Palm Beach, Fla., will be overseen by Judge Aileen M. Cannon, who was appointed by Mr. Trump. In an unusual move this weekend, Judge Cannon signaled her “preliminary intent” to appoint a special master before she had solicited opinions from the government.
Special masters are typically called in to evaluate seized documents that are protected by attorney-client privilege. Although in this case, Mr. Trump’s lawyers have asked for the arbiter to review the materials taken from Mar-a-Lago to see if any might be shielded by executive privilege.
One of the chief questions Judge Cannon will have to answer is whether executive privilege can even be asserted by a former president over records from his service in the White House.
In court papers filed this week, the Justice Department said Mr. Trump cannot assert executive privilege over the documents, especially given that federal prosecutors — who are current members of the executive branch — obtained them with a court-ordered search warrant.
Mr. Trump’s lawyers responded with their own papers, claiming that he could invoke executive privilege because the documents in question were “his own presidential records.”
But that characterization clashed with the Presidential Records Act of 1978, which makes clear that the government, not a president or a former president, owns White House files generated during his time in office.
If Judge Cannon opts to appoint a special master, she will also have to rule on a related request by Mr. Trump’s lawyers, who have asked her to freeze the government’s review of the seized materials while the master works. But the Justice Department has said that it already completed its review and set aside a trove of documents that it believes could be protected by attorney-client privilege.
The hearing will be the first time that lawyers for Mr. Trump will appear in court for a proceeding related to the Mar-a-Lago search. His legal team chose to remain on the sidelines last month, when lawyers for several news organizations sought to unseal the affidavit used to obtain the search warrant for Mar-a-Lago, a move that the Justice Department opposed.
While the hearing will be nominally focused on the special master question, it is possible that prosecutors and Mr. Trump’s lawyers will offer Judge Cannon their broader opinions on the F.B.I.’s search.
In court papers filed on Wednesday night, Mr. Trump’s lawyers called the search “unprecedented, unnecessary and legally unsupported.”
In papers filed on Tuesday, prosecutors revealed a striking evidence photograph of folders labeled “secret” and “top secret” arrayed on the floor of Mar-a-Lago and also set forth a detailed timeline of how Mr. Trump and his lawyers repeatedly sought to stymie the government’s attempts to retrieve the materials.
Source: nytimes.com
