Federal Judge Aileen M. Cannon has granted Donald Trump’s Motion for Judicial Oversight of the FBI/DOJ handling of records and other things seized during the Mar-a-Lago Raid.The Order entered today provides, in relevant part (emphasis added):
Pursuant to the Court’s equitable jurisdiction and inherent supervisory authority, and mindful of the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented, Plaintiff’s Motion [ECF No. 1] is GRANTED IN PART. The Court hereby authorizes the appointment of a special master to review the seized property for personal items and documents and potentially privileged material subject to claims of attorneyclient and/or executive privilege. Furthermore, in natural conjunction with that appointment, and consistent with the value and sequence of special master procedures, the Court also temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order. This Order shall not impede the classification review and/or intelligence assessment by the Office of the Director of National Intelligence (“ODNI”) as described in the Government’s Notice of Receipt of Preliminary Order [ECF No. 31 p. 2].
Expect an emergency appeal.
From the Order, Team Trump promptly requested DOJ agree to a Special Master. But as I’ve pointed out before, Team Trump took almost two weeks to file its court motion.
Shortly after the search of the residence, Plaintiff’s counsel spoke with the Government and requested the following: a copy of the affidavit in support of the warrant; the Government’s consent to the appointment of a special master “to protect the integrity of privileged documents”; a detailed list of what was taken from the residence and from where exactly; and an opportunity to inspect the seized property [ECF No. 1 pp. 8–9]. The Government denied those requests [ECF No. 1 p. 9].5
5 The exact date of that conversation is unclear, but all agree that the conversation took place soon after the search. Plaintiff references August 11, 2022, in the Motion, three days after the search (and eleven days prior to the filing of the Motion). The Government does not offer a different view in its Response or otherwise challenge the substance of the rejected requests. Counsel for the Government stated during the hearing that Plaintiff’s request for a special master was rejected on August 9, 2022, the morning after the search.
The leak of information also came up. This part of the oral argument – for which there is no public audio – was not known to me, but is important. How can the government claim secrecy when it’s leaking to the press:
11 When asked about the dissemination to the media of information relative to the contents of the seized records, Government’s counsel stated that he had no knowledge of any leaks stemming from his team but candidly acknowledged the unfortunate existence of leaks to the press.
Here is the context in which leaks were considered by the Judge (emphasis added):
With respect to the first factor, the Court agrees with the Government that, at least based on the record to date, there has not been a compelling showing of callous disregard for Plaintiff’s constitutional rights. This factor cuts against the exercise of equitable jurisdiction.The second factor—whether the movant has an individual interest in and need for the seized property—weighs in favor of entertaining Plaintiff’s requests. According to the Privilege Review Team’s Report, the seized materials include medical documents, correspondence related to taxes, and accounting information [ECF No. 40-2; see also ECF No. 48 p. 18 (conceding that Plaintiff “may have a property interest in his personal effects”)]. The Government also has acknowledged that it seized some “[p]ersonal effects without evidentiary value” and, by its own estimation, upwards of 500 pages of material potentially subject to attorney-client privilege [ECF No. 48 p. 16; ECF No. 40 p. 2]. Thus, based on the volume and nature of the seized material, the Court is satisfied that Plaintiff has an interest in and need for at least a portion of it, even if the underlying subsidiary detail as to each item cannot reasonably be determined at this time based on the information provided by the Government to date.The same reasoning contributes to the Court’s determination that the third factor—risk of irreparable injury—likewise supports the exercise of jurisdiction. In addition to being deprived of potentially significant personal documents, which alone creates a real harm, Plaintiff faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public.11Further, Plaintiff is at risk of suffering injury from the Government’s retention and potential use of privileged materials in the course of a process that, thus far, has been closed off to Plaintiff and that has raised at least some concerns as to its efficacy, even if inadvertently so. See infra Discussion III. Finally, Plaintiff has claimed injury from the threat of future prosecution and the serious, often indelible stigma associated therewith…. As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.
The Judge returned to the issue of leaks in her summary (emphasis added):
Hence, the Court takes into account the undeniably unprecedented nature of the search of a former President’s residence; Plaintiff’s inability to examine the seized materials in formulating his arguments to date; Plaintiff’s stated reliance on the customary cooperation between former and incumbent administrations regarding the ownership and exchange of documents; the power imbalance between the parties; the importance of maintaining institutional trust; and the interest in ensuring the integrity of an orderly process amidst swirling allegations of bias and media leaks.
As to the need for a Special Master, the Court found that the “Privilege Review” team at DOJ was insufficient, and there had been at least two breaches of privilege:
As reflected in the Privilege Review Team’s Report, the Investigative Team already has been exposed to potentially privileged material. Without delving into specifics, the Privilege Review Team’s Report references at least two instances in which members of the Investigative Team were exposed to material that was then delivered to the Privilege Review Team and, following another review, designated as potentially privileged material [ECF No. 40 p. 6]. Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process.13
13 In explaining these incidents at the hearing, counsel from the Privilege Review Team characterized them as examples of the filter process working. The Court is not so sure. These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material. The Government’s other explanation—that these instances were the result of adopting an overinclusive view of potentially privileged material out of an abundance of caution—does not satisfy the Court either. Even accepting the Government’s untested premise, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the Investigative Team. Perhaps most concerning, the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team [see ECF No. 40]. In sum, without drawing inferences, there is a basis on this record to question how materials passed through the screening process, further underscoring the importance of procedural safeguards and an additional layer of review….
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