The special master appointed to review documents federal agents seized at former President Donald Trump's Florida estate appeared doubtful Tuesday about Trump's contention that he had declassified the various top secret and other highly sensitive documents found there.
The special master, Senior U.S. District Judge Raymond J. Dearie of New York, had asked Trump's attorneys for more information about which of the over 100 sensitive documents federal agents found at his Mar-a-Lago estate in Palm Beach might have been declassified. Trump's attorneys had told the judge in a letter Monday night that they didn't want to disclose the information yet because it could force them to prematurely "disclose a defense to the merits of any subsequent indictment."
At a hearing in federal court in Brooklyn, Dearie noted that the case is a civil dispute, not a criminal one, but said he was taking the government's concerns about national security seriously.
"Let's not belittle the fact that we are dealing with at least potentially legitimately classified information. The government has a very strong obligation, as do all of us, to see to it that that information doesn't get in the wrong hands," said Dearie, a former judge on the Foreign Intelligence Surveillance Court whom President Ronald Reagan appointed to the New York federal court."
While Trump's filing claimed neither side had provided a showing that the documents are classified, Dearie said the government had presented "prima facie evidence" that the documents are, because they bear classification markings.
"As far as I'm concerned, that's the end of it," Dearie said, unless Trump's team has some evidence to the contrary.
Trump has claimed on social media that he declassified all the records he had, but his lawyers have yet to formally make that argument in any sworn court filings.
Trump attorney James Trusty maintained that "we should not be in a position to have to disclose declarations" and witness statements about the classification issue. Dearie suggested their not doing so could be problematic for their case.
"My view is you can’t have your cake and eat it," Dearie said.
Justice Department lawyer Julie Edelstein noted that some of the documents "are so sensitive that even members of the team that is investigating possible offenses here have not yet been provided the clearances to see these documents." She said that while Trusty has a top-secret clearance, even that "would not be sufficient to see a number of the documents at issue in this case."
Trusty called Edelstein's argument "kind of astounding." "It's kind of an amazing juncture to be dismissive of even one attorney having access to the documents that form the justification for their raid," he said.
Dearie told Trump's lawyer: "It is a matter of need to know. And if you need to know, you will know.” He also suggested he would try to avoid reviewing some of the most sensitive documents — and that he would keep Trump's lawyers from seeing them, too.
"I don't want to see the material — it's presumably sensitive material," he said, adding that if he can make his recommendations to the judge who asked him for them "without exposing myself or to you to that material, I will do it."
"On the other hand, if I can't, we have to take another alternative," he said.
Dearie said he would issue a scheduling order later Tuesday and noted that "there are 11,000 documents" at issue, saying "we have a short period of time" to review them for privilege issues.
Trusty urged Dearie not to move too quickly. He said Trump's team is “starting from scratch" and would benefit from having "the time to look at all the documents."
U.S. District Judge Aileen Cannon, a Trump-nominated judge in Florida, granted the former president's request to appoint a special master to review the evidence this month and ordered the Justice Department to halt the criminal investigation into the recovered documents while the review is pending. Cannon said a damage assessment into any mishandling of the documents could proceed, but the Justice Department said the criminal investigation is a necessary part of the assessment, and it appealed her order.
In a court filing Tuesday, lawyers for Trump argued that the 11th U.S. Circuit Court of Appeals should reject the government's request to stay Cannon's ruling, calling the probe "both unprecedented and misguided" and characterizing it as "a document storage dispute that has spiraled out of control."
Trump's bid was backed in a filing to the appeals court by a coalition of 11 Republican attorneys general, who suggested the "ransacking" of Trump's home was politically motivated and argued that Cannon's order should be left as is because of the Biden administration's "gamesmanship." Most had backed a lawsuit challenging the 2020 election results that was dismissed by the Supreme Court.