 |
| Photo Credit: AP. |
WASHINGTON (AP) — The parallel special master process spawned by the FBI search of Donald Trump’s Florida estate has slowed the Justice Department’s criminal investigation and exposed simmering tensions between department prosecutors and lawyers for the former president.
As the probe
into the presence of top-secret information at Mar-a-Lago continues, barbed
comments in recent court filings have laid bare deep disagreements related to
the special master’s work — not just among lawyers but judges, too. And the
filings have made clear that a process the Trump team initially asked for has
not consistently played to the ex-president’s advantage.
A look at
where things stand:
WHO IS THE SPECIAL MASTER AND WHAT IS HIS ROLE?
A federal
judge in Florida appointed at the Trump team’s request an independent arbiter
to inspect the thousands of documents seized from Mar-a-Lago and to weed out
from the investigation any that might be protected by claims of either
attorney-client privilege or executive privilege.
That
arbiter, formally known as a special master, is Raymond Dearie. He’s a former
federal prosecutor who was appointed a U.S. District judge in Brooklyn by
then-President Ronald Reagan. He also has served on the Foreign Intelligence
Surveillance Court.
He was
initially tasked by U.S. District Judge Aileen Cannon, a Trump appointee, with
reviewing all of the records taken from Mar-a-Lago. But a federal appeals court
shrunk the scope of his duties last week, ruling that the Justice Department
did not have to share with him the roughly 100 documents with classified
markings that were taken during the Aug. 8 search. That leaves for his
evaluation the roughly 11,000 other, unclassified documents — which a Trump
lawyer said actually total roughly 200,000 pages — recovered by the FBI.
Cannon,
meanwhile, has also reined in some of Dearie’s work.
WHAT HAS HAPPENED SINCE THEN REGARDING CLASSIFIED DOCUMENTS?
The past
week has revealed stark divisions in how both sides envision the process
playing out, as well as the precise role the special master should have.
An early
hint surfaced when the Trump team resisted Dearie’s request for any information
to support the idea that the documents had been declassified, as Trump has
repeatedly asserted. A lawyer for Trump, James Trusty, said that inquiry was
“premature” and “a little beyond” what Cannon had in mind at the time she
appointed the special master.
The
following day, in a setback for the Trump team, the U.S. Court of Appeals for
the 11th Circuit overruled an order from Cannon that had temporarily halted the
Justice Department’s ability to use the seized classified documents in its
probe. Besides restoring the department’s access, the order also lifted
Cannon’s mandate that investigators give the special master those records.
More
conflict followed, this time related to the scanning and processing of
non-classified government records that were seized.
Government
lawyers revealed in a letter Tuesday that none of the five document-review
vendors they had recommended for the job was “willing to be engaged” by the
Trump team. The Justice Department said it was confident it would be able to
secure the arrangements on its own while noting that it continued to expect the
Trump team to pay.
But Trusty
responded with his own letter Wednesday attributing the difficulty in securing
a vendor to the sheer quantity of documents, which he said totaled roughly
200,000 pages — a number the Justice Department has not itself stated in court
filings.
He said the
department’s deadlines for the production of documents was overly “aggressive”
— “It would be better to base deadlines on actual data and not wistful claims
by the Government,” he noted at one point — and scolded the department for what
he said were “antagonistic” comments.
“DOJ
continues to mistake itself as having judicial authority. Its comments are not
argument, but proclamations designed to steamroll judicial oversight and the
Plaintiff’s constitutional rights,” Trusty wrote.
WHAT IS LIKELY TO HAPPEN NEXT?
The FBI’s
investigation took a major step forward when the appeals court lifted Cannon’s
hold on its ability to scrutinize the seized classified documents as it
evaluates whether Trump or anyone else should face criminal charges.
Dearie’s
work as special master will continue alongside that probe, though there’s
little chance any action he takes at this point could substantially alter the
outcome of the FBI investigation or affect major decisions that lie ahead.
But early
disagreements between Cannon and Dearie over the scope of his duties also bear
watching. For instance, Cannon on Thursday overturned a directive from the
special master that would have required the Trump team to say whether it had
any objections to a detailed FBI property inventory cataloging all of the items
agents removed from the home.
That
response could have been illuminating given that Trump and some of his allies
have raised unsupported suggestions that the agents who searched his home may
have planted evidence. If his lawyers were to affirm the inventory’s accuracy,
they would likely be contradicting their own client’s claims while also
acknowledging the presence of classified materials in the home.
The Justice
Department this week made what it called minor revisions to the inventory, but
said it was an otherwise full and accurate accounting of what was taken.
Yet newly
disclosed correspondence showed the Trump team balking at being forced to
assess the inventory’s accuracy. Trusty said in a letter Sunday that the
directive that it do so goes beyond what
Cannon had
envisioned when she appointed Dearie. Cannon herself agreed, canceling Dearie’s
requirement Thursday and writing that her “appointment order did not
contemplate that obligation.”
The Justice
Department, for its part, had earlier suggested that the Trump team should not
be able to avoid stating its position on the record or following other of
Dearie’s directives.
“The Special
Master needs to know that he is reviewing all of the materials seized from
Mara-Lago on August 8, 2022 — and no additional materials — before he
categorizes the seized documents and adjudicates privilege claims,” the
department said in one filing.
The letter
Tuesday ended with this tart reminder to Trump and his lawyers: “Plaintiff
brought this civil, equitable proceeding. He bears the burden of proof.”
Follow Eric
Tucker on Twitter at http://www.twitter.com/etuckerAP