A federal judge said Thursday she would make public a more detailed list of what the FBI seized from former President Donald Trump's Mar-a-Lago estate as lawyers for Trump and the Justice Department faced off in a federal courtroom in Florida on Thursday for the first time in a case involving the unprecedented search of his home.
U.S. District Judge Aileen Cannon did not immediately rule, however, on the Trump lawyers' request to appoint a special master to review all of the evidence seized in the Aug. 8 search to determine whether any of it includes potential attorney-client or executive privilege issues.
Trump's lawyers had requested a more detailed inventory of what investigators seized, contending the version they got from the government was too vague. They asked for a detailed account of "exactly what was seized, and where it was located when seized.”
Trump’s team also said they want a third-party special master to share all of the evidence with them, including the affidavit laying out the government’s case that was used to get the search warrant in the first place.
The Justice Department was ready for the possibility the judge would order that the more detailed list be unsealed, saying in a court filing earlier this week that “the government is prepared, given the extraordinary circumstances, to unseal the more detailed receipt and provide it immediately to Plaintiff.” It's unclear when the document will be released.
While the government characterized the case in grave terms related to national security and classified documents, Trump lawyer Jim Trusty compared it to something more mundane. “We’ve characterized it at times as an overdue-library-book scenario where there’s a dispute — not even a dispute — but ongoing negotiations with [the National Archives] that has suddenly been transformed into a criminal investigation,” he said, sidestepping that the Justice Department had issued a subpoena for the documents this year.
Trump lawyer Chris Kise told NBC News the “controversy needs to be placed in the proper context. We’re talking about presidential records of the 45th president of the United States at a location that he utilized frequently when he was president to conduct the official business of the United States. This is not some Department of Defense staffer stuffing national security secrets into a paper bag and sneaking out the backdoor.”
Throughout the hearing, Cannon, a Trump appointee, had more questions for the government than for the former president's team and repeatedly asked why she shouldn’t appoint a special master.
Justice Department attorneys argued a special master was either superfluous or unwarranted when it came to Trump’s claims about executive privilege. Pointing to a 1977 case, Nixon v. GSA, a government attorney told the court that Trump couldn’t invoke the privilege because he was no longer the executive.
“I don’t know if that’s right,” Cannon said. “It seems to me like you’re potentially over-reading Nixon, and to say now that there’s absolutely no room for a former executive to raise a claim of executive privilege at least for some period of time, it’s not entirely decided in the law. So I’m not sure if it’s cut and dried as you suggest.”
Jay Bratt, a top counterintelligence official at the Justice Department, argued that the bottom line was that Trump had a stash of documents that don’t belong to him.
“He is no longer the president. And because he’s no longer the president, he had no right to those documents. ... That ends the analysis,” Bratt said.
The Justice Department also contended a special master wasn't necessary because its filter team had already found 64 sets of materials totaling over 500 pages that have been deemed potentially privileged.
Trump's lawyers have argued otherwise, suggesting the documents are Trump's property and the FBI was engaging in an "unjustified pursuit of criminalizing a former President’s possession of personal and Presidential records in a secure setting.”
“The government should provide to the special master and to movant a copy of the seized materials, a copy of the search warrant, and an unredacted copy of the underlying application materials,” Trump’s lawyers said in a court filing Wednesday, suggesting the special master could rein in supposedly out-of-control investigators. “Left unchecked, the DOJ will impugn, leak, and publicize selective aspects of their investigation with no recourse for movant but to somehow trust the self-restraint of currently unchecked investigators,” their filing said.
A magistrate judge last week ordered the release of a heavily redacted version of the affidavit, which showed that investigators had found a trove of highly classified documents in boxes that Trump returned to the National Archives and Records Administration, or NARA, in January after he'd been out of office for over a year. Twenty-five of those documents were marked top secret, while many more were labeled secret or confidential, the filing said.
The parts of the affidavit that remain redacted explain how and why the FBI came to believe Trump still had a large number of documents at his Florida club.
In their own filing Tuesday, Justice Department officials said adding a special master into the mix “is unnecessary and would significantly harm important governmental interests, including national security interests.”
While federal agents have finished their review of the evidence collected in the search, intelligence officials are conducting their own damage assessment, the filing noted. A special master review of the more than 100 classified documents found in the search “would impede the Intelligence Community from conducting its ongoing review of the national security risk that improper storage of these highly sensitive materials may have caused and from identifying measures to rectify or mitigate any damage that improper storage caused,” the Justice Department document says.
In a separate filing Monday, the Justice Department said it was being mindful of attorney-client privilege concerns. It said 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.”
Trump's attorneys downplayed the large numbers of classified documents in their filing while belittling the investigators' allegation that they had failed to turn over sensitive documents even after they were served a subpoena for them and after one of Trump's lawyers said in a sworn statement in June that all the sought-after documents had been returned.
"A search warrant has been executed at the home of a president. It was conducted in the midst of the standard give-and-take between former presidents and NARA regarding presidential library contents," their filing said.
"The purported justification for the initiation of this criminal probe was the alleged discovery of sensitive information contained within the 15 boxes of presidential records. But this 'discovery' was to be fully anticipated given the very nature of presidential records. Simply put, the notion that presidential records would contain sensitive information should have never been cause for alarm," they wrote.
Cannon said in a ruling over the weekend that she had a "preliminary intent" to appoint a special master to review some of the documents but that she would until after Thursday's hearing to decide how to proceed.