This photo that was included in a court filing submitted by the Department of Justice on Tuesday shows a collection of documents seized by the FBI on Aug. 8 during execution of a search warrant on the Mar-a-Lago resort home of former President Donald Trump. The documents, some of which were labeled top secret, were taken from the White House when Trump left office. Photo via Department of Justice/UPI | License Photo
Sept. 5 (UPI) -- U.S. District Judge Aileen Cannon on Monday granted former President Donald Trump's request for an appointment of a "special master" to review materials that the FBI took last month during its raid of his Mar-a-Lago home in Florida.
The Florida-based Cannon, who was appointed by Trump and confirmed a week after his defeat in the 2020 election, said a third-party attorney from outside the federal government will review the materials taken from the home and stop the Justice Department from continuing its probe of examining the materials "pending completion of the special master's review or further court order," said in her 24-page ruling.
"A special master shall be appointed to review the seized property, manage assertions of privilege and make recommendations thereon, and evaluate claims for the return of property," Cannon wrote. "The exact details and mechanics of this review process will be decided expeditiously..."
She gave a Friday deadline for the Justice Department and Trump's attorneys to submit a list of proposed candidates to be named special master, and a proposal to establish the duties and limits of the special master.
Cannon said the government could continue to conduct an ongoing review of classified documents to assess any possible damage on U.S. intelligence by the Office of the Director of National Intelligence.
The search found more than 10,000 government documents, a number of which were highly classified, at Mar-a-Lago in Palm Beach.
On Friday, Cannon released a detailed list of what was seized from a storage room and in Trump's office. They include classified documents with unmarked government records, photographs and even articles of clothing co-mingled. Forty-eight empty folders were marked "classified" and 42 other empty ones labeled to "return to staff secretary/military aide."
In January 2022, National Archives officials confirmed that the agency had recently retrieved 15 boxes of presidential records from Mar-a-Lago Club. In early June, FBI agents seized subpoenaed documents and ater that month a Trumo lawyer said there weren't any more classified documents.
Cannon said there was a need to ensure "the appearance of fairness and integrity under the extraordinary circumstances presented" in her ruling.
While Justice Department discussed last week the possibility of appealing if Cannon decided to grant Trump a special master, DOJ spokesperson Anthony Coley said in a statement: "The United States is examining the opinion and will consider appropriate next steps in the ongoing litigation."
Cannon pushed back on the Justice Department's claims that Trump had no power to assert executive privilege over the documents.
"Even if any assertion of executive privilege by plaintiff ultimately fails in this context, that possibility, even if likely, does not negate a former president's ability to raise the privilege as an initial matter," Cannon said in the ruling.
"Accordingly, because the privilege review team did not screen for material potentially subject to executive privilege, further review is required for that additional purpose."
She also noted: "The Supreme Court did not rule out the possibility of a former President overcoming an incumbent President on executive privilege matters."
The Supreme Court refused to block the Archives' release to House Jan. 6 investigators Trump White House documents. And in 1977, the Supreme Court ruled seizing and examining records related to a former president, Richard Nixon, that are still within the control of the executive branch does not violate the separation of powers.
"There's just never been a case where irreparable harm has been shown by being under criminal investigation," Jennifer Rodgers, a former federal prosecutor, told CNN. "That's one of the key things that the Justice Department does, the executive branch does, is criminally investigate people. So, the notion that that can establish irreparable harm to me still says that this is a legally wrong decision."
Rogers added: "On the other hand, this notion that this is so extraordinary and that she's granting it because it's the former president, I think is sort of good news for the Justice Department, because one of the problems with this is it sets a precedent for other defendants down the road who say, 'Hey, wait a minute, you searched my stuff, I want a special master even though it's not my lawyer's office and there's no reason to believe there's a lot of privileges apply," so, I think that piece of it is good."
In at least two instances, members of the FBI's investigative team were exposed to material from the search that were later designated as potentially privileged material.
The search included the seizure of medical documents, accounting information and correspondence related to taxes, according to the federal judge's ruling.
It was a huge legal victory for Trump, who has been faced with mounting legal challenges even as he ramps up what many expect to be a 2024 run for a return to the White House.