On Saturday, August 27, Judge Aileen M. Cannon issued a Preliminary Order stating her preliminary intent to appoint a Special Master but giving the government a chance to file opposition to the motion. Although a response was not due until tomorrow, this morning the feds filed a Notice of Receipt of Preliminary Order, which provided, in part (emphasis added):
4. The government also will review the materials obtained pursuant to the search warrant and coordinate with the Case Team and Privilege Review Team 1 to submit, as directed by the Preliminary Order, a sealed supplemental filing containing a “more detailed Receipt for Property” seized pursuant to the search warrant approved on August 5, 2022 (S.D. Fla. Case No. 22-MJ-8332-BER), and executed on August 8, 2022; as well as a “particularized notice indicating the status of [the United States’] 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,” D.E. 29 at 2.5. Although the government will provide the Court more detail in its forthcoming supplemental filing, the government notes that, before the Court issued its Preliminary Order, and in accordance with the judicially authorized search warrant’s provisions, the Privilege Review Team (as described in paragraphs 81-84 of the search warrant affidavit) 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 set forth in paragraph 84 of the search warrant affidavit to address potential privilege disputes, if any. Additionally, the Department of Justice and the Office of the Director of National Intelligence (“ODNI”) are currently facilitating a classification review of materials recovered pursuant to the search. As the Director of National Intelligence advised Congress, ODNI is also leading an intelligence community assessment of the potential risk to national security that would result from the disclosure of these materials.
The referenced paragraph 84 of the Warrant Affidavit provide for a “Privilege Review Team” to identify and review potentially privileged materials, and sets up a procedure.
83. If the Privilege Review Team determines the documents or data are not potentially attorney-client privileged, they will be provided to the law-enforcement personnel assigned to the investigation. If at any point the law-enforcement personnel assigned to the investigation subsequently identify any data or documents that they consider may be potentially attorney-client privileged, they will cease the review of such identified data or documents and refer the materials to the Privilege Review Team for further review by the Privilege Review Team.84. If the Privilege Review Team determines that documents are potentially attorney-client privileged or merit further consideration in that regard, a Privilege Review Team attorney may do any of the following: (a) apply ex parte to the court for a determination whether or not the documents contain attorney-client privileged material; (b) defer seeking court intervention and continue to keep the documents inaccessible to law-enforcement personnel assigned to the investigation; or (c) disclose the documents to the potential p1ivilege holder, request the privilege holder to state whether the potential privilege holder asserts attorney-client privilege as to any documents, including requesting a particularized privilege log, and seek a ruling from the courtregarding any attorney-client privilege claims as to which the P1ivilege Review Team and the privilege-holder cannot reach agreement.
Of course, this gives the government sole determination of what might or might not be privileged in the first instance, and only invokes court review if the government designates a document as potentially privileged. It also does not screen for material beyond the scope of the warrant or extraneous to the alleged potential crimes cited in the warrant. A document containing Trump’s political plans and communications with political advisors on how best to counter the Biden administration would be open to review, unless and until a Special Master is appointed.
This also indicates the governments review is far along. Why make this filing at all? Probably to alert the court that the feds already have done a sustantial, if not complete, review of materials seized before the Judge’s Preliminary Order. While that Order did not contain an injunction, the feds wanted to go on record as to what took place prior to the Order.
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