Judge Keeps Block on Inquiry Into Mar-a-Lago Files and Appoints Special Master
The Justice Department has threatened to go to an appeals court and seek an emergency stay if she did not agree to its proposal to resume a key part of the investigation.
https://www.nytimes.com/2022/09/15/us/trump-documents-special-master.html
WASHINGTON — A federal judge on Thursday rejected the Justice Department’s request to resume a key part of its inquiry into former President Donald J. Trump’s handling of sensitive government records and appointed an independent arbiter to oversee a review of documents seized from him last month.
The judge, Aileen M. Cannon, appointed a candidate suggested by the Trump legal team and agreed upon by the government to sift through more than 11,000 records. The candidate was Raymond J. Dearie, a semiretired judge from the Federal District Court for the Eastern District of New York.
In a 10-page decision, Judge Cannon, of the Federal District Court for the Southern District of Florida, declined to lift any part of an injunction she issued last week that barred the department from using any of those documents, including about 100 marked as classified, for investigative purposes until the special master had completed a review.
The Justice Department had asked the judge to partly stay that order so it could immediately resume using the 100 or so documents marked as classified in that trove, saying the freeze was endangering national security. It also threatened to go to the U.S. Court of Appeals for the 11th Circuit, in Atlanta, and seek an emergency stay if she did not agree to its proposal by Thursday.
In a concession to that argument, she said Judge Dearie should first look at those documents “and thereafter consider prompt adjustments to the court’s orders as necessary.” That raised the possibility that the special master could quickly clear them and the judge might then permit the F.B.I. to resume using them.
But Judge Cannon, whom Mr. Trump appointed in November 2020, declined to back down on having the special master vet those documents, too — and making the national-security officials wait, at least for now, until he does.
In her order, Judge Cannon said she was unconvinced by the government’s arguments that Mr. Trump “could not possibly have a possessory interest” in the classified materials he took to Mar-a-Lago or that he had “no plausible claim of privilege as to any of these documents.”
She also noted that the government was unlikely to “suffer an irreparable injury” if its investigation into Mr. Trump’s hoarding of the sensitive material was delayed by a special master’s review.
“There has been no actual suggestion by the government of any identifiable emergency or imminent disclosure of classified information arising from” Mr. Trump’s “allegedly unlawful retention of the seized property,” she wrote.
Judge Cannon’s decision was the latest turn in a battle between the Justice Department and lawyers for Mr. Trump over whether a special master should review the documents retrieved from Mr. Trump’s Florida estate, Mar-a-Lago, last month.
Last week, Judge Cannon, siding with Mr. Trump, issued an order announcing that she would appoint a special master to go over the materials and, in an unusual move, prevented prosecutors from using any of the records for any “investigative purpose” in the meantime.
But as part of her order, Judge Cannon permitted the government to continue using the documents for a national-security risk assessment and classification review of the files.
Days later, the
Justice Department asked Judge Cannon to stay parts of her order, requesting that the F.B.I. be allowed to resume investigating matters related to about 100 of the seized files that had been marked as classified. The department argued that the bureau’s criminal investigation of the files was “inextricably linked” to the separate national-security reviews that she had said could continue.
At the same time, the Justice Department filed notice that it was appealing her decision, telling Judge Cannon that if she did not agree to its requests for a stay by Thursday, it would ask the appeals court to intervene.
In effect, the government had sought a compromise, acquiescing to Judge Cannon’s decision to impose a special master and, at least temporarily, to bar F.B.I. agents and prosecutors from working further with the overwhelming majority of the seized documents and other records. In return, the Justice Department asked Judge Cannon to let its investigators continue working with the smaller batch of records marked classified.
The department noted in filings that intelligence agencies are barred from investigative activity on domestic soil and that the F.B.I. is the agency that traditionally gathers facts in similar situations. Prosecutors said that determining what happened to the classified files — and whether any were still missing — was not merely part of their criminal investigation, but also instrumental to the national-security review.
To make their point, lawyers for the Justice Department specifically mentioned nearly
50 empty folders bearing classified banners that were found during the search of Mar-a-Lago. The lawyers said the F.B.I. needed to investigate what happened to the contents of the folders so intelligence officials could determine whether national security had been compromised.
The Office of the Director of National Intelligence has said that, after Judge Cannon’s order, it paused its risk assessment and classification review.
For its part, Mr. Trump’s legal team had urged Judge Cannon not to back down from her initial order. His lawyers have insisted that the government’s claims were “exaggerated” and that only a “brief pause” would be required for the special master’s review to be completed. (They have said they think the review will take three months.)
At the same time, Mr. Trump’s lawyers have said they believe that the order would allow the F.B.I. to take further actions related to the seized documents — including using investigative tools like subpoenas — if their purpose were to assist the intelligence community’s risk assessment, as opposed to assisting the criminal inquiry. That concession did not address whether an action that served both purposes would be permissible.
