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DOJ Response Raises Doubts on Trump ‘Special Master’ Request

·5 min read

(Bloomberg) -- The US Department of Justice said it already screened documents seized from Donald Trump’s Florida home for attorney-client privilege, potentially casting doubt on the former president’s lawsuit seeking third-party review of the records.

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Trump claims a so-called special master is necessary to determine if some of the documents were privileged, and a federal judge suggested over the weekend that she was inclined to grant the request. But in a Monday court filing that was its first reaction to the suit, the Justice Department suggested that it had already addressed those concerns.

A privilege review team identified a “limited set” of materials that potentially contain attorney-client privileged information and has now completed its review of those materials, the government said in its filing in federal court in West Palm Beach, Florida. The Justice Department said it would file a more substantive response on Tuesday. US District Judge Aileen Cannon has set a Sept. 1 hearing on the matter.

Though the government hasn’t yet said if it’s opposed the appointment of a special master, legal experts said the work of the privilege team may have obviated the need for a third-party review.

“There may be little need for a special master, especially if the filter team acted properly,” said Carl Tobias, a University of Richmond law professor.

Trump’s lawyer in the case, James Trusty, didn’t immediately respond to a message seeking comment.

Similar Playbook

The dispute over privileged material is separate from whether Trump broke any laws by taking hundreds of classified documents -- some of them marked top secret -- from the White House after leaving office. But in calling for a special master, Trump followed a similar playbook as two of his former lawyers who were subject to Federal Bureau of Investigation searches.

A retired federal judge was appointed in both instances to review whether any material seized from Rudy Giuliani and Michael Cohen was subject to attorney-client privilege. In a Friday filing to Cannon, Trump’s lawyers repeatedly cited the case of Rudy Giuliani, who is under investigation for illegal foreign lobbying but has not been charged, as precedent for the appointment of a special master.

But both those men were lawyers themselves, and federal agents seized from them hard drives and electronic devices containing thousands of documents. Even then, the special master found only a handful of documents she deemed protected by attorney-client privilege.

Kevin O’Brien, a former federal prosecutor, said he didn’t think the privileged documents the Justice Department found at Mar-a-Lago would prove significant.

“It would not be surprising if some privileged materials are found, since we know Trump has been represented by counsel during the process of his negotiations with the government over the return of the materials,” said Kevin O’Brien, a former federal prosecutor who’s now a white-collar criminal defense attorney. DOJ’s use of a privilege team is “standard operating procedure.”

That FBI affidavit backing the Aug. 8 search, which was released Friday in heavily redacted form, sets our procedures for handling any attorney-client privileged material. According to the affidavit, the government can seek a court order to determine privilege, keep privileged documents away from criminal investigators or ask Trump to assert privilege in detail.

Former federal prosecutor Brandon Fox said a key question is whether the documents have already been shared beyond the Justice Department’s privilege review team.

“If the investigators already have access to documents seized, the bigger fight may not be about whether there should be a special master,” Fox said. “Instead, the issue is going to be whether the investigators have been tainted by documents that Mr. Trump claims are privileged.”

Attorney-client privilege covers many communications between a lawyer and client, but there are important exceptions, including for communications that are made in furtherance of a crime. Such privilege also only applies to legal advice.

The Mar-a-Lago situation is further complicated by the fact that Trump’s suit not only asserted attorney-client privilege but executive privilege as well. The Justice Department’s filing on Monday doesn’t include a reference to any such material, and many legal experts doubt that an ex-president can assert that privilege.

In the Giuliani case, the special master was appointed by the same judge who issued the warrants to search the former New York mayor’s home and office. Trump, on the other hand, bypassed the warrant case being heard by US Magistrate Judge Bruce Reinhart and filed a separate suit that ended up in front of Cannon, whom he appointed to the bench.

In his Aug. 22 suit, Trump complained that Reinhart approved the Justice Department’s filter protocol “without input from the defense.”

“The result is a protocol that is plainly ineffective -- it simply does not ensure that prosecution team members will not access or become aware of privileged materials particularly as the filter team’s leader is a deputy to the lead prosecutor in this matter,” according to Trump’ suit.

National Security Assessment

In her Saturday order, Cannon further directed the Justice Department to file under seal a more detailed list of property seized from Trump’s home and explain the status of the government’s own review of the material. The sealed document must describe “any filter review conducted by the privilege review team and any dissemination of materials beyond the privilege review team,” she said.

The Justice Department in its Monday filing said it was currently undertaking a review of the material along with the Office of the Director of National Intelligence, which was also undertaking a separate assessment of whether the documents compromised national security.

Trump has denied wrongdoing and offered a variety of explanations for the presence of classified documents at his home, including that he had a “standing order” to declassify records he took and that FBI agents may have planted evidence during the search.

The case is Trump v. United States of America, 22-cv-81294, US District Court, Southern District of Florida (West Palm Beach).

(Updates with additional expert comment.)

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