Some of the documents recovered during the FBI's search of former President Donald Trump's Mar-a-Lago resort "potentially contain attorney-client privileged information," Justice Department lawyers said Monday.
The Justice Department acknowledged the find in a submission to U.S. District Judge Aileen Cannon, who's weighing a request from Trump's team to appoint a special master to review some of the documents the FBI seized as part of its national security-related criminal investigation.
In an order Saturday, Cannon instructed the Justice Department to file under seal “a more detailed Receipt for Property specifying all property seized” and said that she wanted to be told “the status of Defendant’s review of the seized property, including any filter review conducted by the privilege review team and any dissemination of materials beyond the privilege review team.”
The judge said over the weekend that her “preliminary intent” is to grant Trump’s request for a special master, but that she would not rule until she hears the government’s arguments at a hearing in West Palm Beach on Thursday.
If Cannon grants Trump’s request, the special master would be in charge of reviewing documents for issues of privilege, not the highly sensitive records at the heart of the government’s investigation.
Trump’s legal filing also sought protection for documents covered by executive privilege that applies to presidents, but since he’s no longer in the White House that legal protection does not automatically apply to these records.
In its filing Monday, the Justice Department said that prior to the judge's order, a privilege review team had "identified a limited set of materials that potentially contain attorney-client privileged information, completed its review of those materials, and is in the process of following the procedures" laid out in the search warrant affidavit "to address potential privilege disputes, if any."
Those procedures include asking a judge for a ruling on whether the documents are privileged or disclosing the documents to "the potential privilege holder" — Trump — to see if they're claiming privilege.
In a court filing last week, lawyers for Trump argued that the FBI has "declined to provide even the most basic information about what was taken, or why" during its extraordinary Aug. 8 search of Trump's property.
A document attached to the search warrant that was later unsealed by a different judge said the agents were searching for “All physical documents and records constituting evidence, contraband, fruits of crime and other items illegally possessed in violation of” three laws, including one involving national security information.
A property receipt that was also unsealed showed agents removed 11 sets of classified documents, including some that were labeled secret and top secret.
The Justice Department said Monday it would comply with Cannon's order and submit "a sealed supplemental filing containing a 'more detailed Receipt for Property'" this week, as well as a public response to Trump's request for a special master.
The filing also confirmed that the Justice Department and the Office of the Director of National Intelligence have started a classification review of the materials seized during the search and confirmed that the ODNI is leading an intelligence community risk assessment.
