by MARGOT CLEVELAND
The federal judge’s 24-page order further calls into question the DOJ’s targeting of Trump.
A federal judge on Monday granted former President Donald Trump’s request for the appointment of a special master to review the documents seized by the FBI during a raid on his Mar-a-Lago home last month. Presiding Judge Aileen Cannon, a Trump appointee, further held that the Department of Justice cannot review or use for criminal investigative purposes any material seized pending the review process.
Besides handing Trump a victory in his battle for some oversight of the Biden administration’s digging into his documents, Cannon highlighted several significant facts over the course of her 24-page order that further call into question the DOJ’s targeting of Trump.
Here are the seven top-line takeaways:
1. President Biden Was Directly Involved
In the order granting Trump’s request for the appointment of a special master, Cannon began by providing a summary of the backdrop that led to the search. Throughout 2021, Trump and the National Archives and Records Administration (“NARA”), “engaged in conversations concerning records from [Trump’s] time in office,” the court noted. Those discussions resulted in Trump in January 2022 transferring 15 boxes from Mar-a-Lago to NARA. NARA subsequently informed the Department of Justice that some items in the boxes contained markings of “classified national security information.”
Following the archive’s outreach to the Justice Department, NARA notified Trump on April 12, 2022, that it intended to provide the 15 boxes to the Federal Bureau of Investigation. Trump’s attorneys sought a delay in the transfer to assess whether any documents contained privileged material. But then, as Cannon wrote, after obtaining a short delay, on May 10, 2022, NARA informed Trump it would proceed with “provid[ing] the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022.”
In including this quote in her order, Cannon cited the letter the NARA’s acting archivist sent to Trump’s lawyer. That letter explained that Biden had decided to defer to the archivist’s “determination, in consultation with the Assistant Attorney General for the Office of Legal Counsel, regarding whether or not [the archivist] should uphold the former President’s purported ‘protective assertion of executive privilege.’” Acting Archivist Debra Steidel Wall then explained in the letter that based on her consultation with the assistant attorney general for the Office of Legal Counsel, she had decided not to honor Trump’s claim of privilege.
While the media has previously highlighted those aspects of the letter, Monday’s order highlighted a key sentence in that same letter that went less noticed by the press: “NARA will provide the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022” (emphasis added).
This language indicates that Biden did not merely defer to the NARA but asked the NARA to give the documents to the FBI. Of course, deferring to the NARA’s judgment equated to Biden authorizing the hand-off to the FBI, but this passage suggests a more direct connection between Biden and the investigation into Trump.
2. Timeline of the Trump Targeting Is Suspect
A second significant detail revealed by Monday’s order concerns the timeline of events, which the court exposed by providing a clear chronology. On May 10, 2022, the archivist informed Trump’s lawyers that the “NARA will provide the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022.” And on May 11, 2022, before the DOJ received possession of the 15 boxes from NARA, the DOJ “obtained a grand jury subpoena,” for “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.”
But why would the DOJ seek a grand jury subpoena for any and all documents in Trump’s possession bearing classification markings before reviewing the material provided by the NARA? And given that the DOJ obtained the subpoena the day after the NARA told Trump’s lawyer “the incumbent President” had requested the archive provide the documents to the FBI, one must ask: Did Biden direct the DOJ to obtain the grand jury subpoena?
3. Not So Fast Joe — Trump’s Executive Privilege Can’t Be So Quickly Sidestepped
Another important detail from Monday’s order concerned the court’s handling of Trump’s request for a review of the seized material to address issues of “executive privilege.” In opposing Trump’s request for a special master, the Biden administration argued that Trump lacked the right to assert “executive privilege” against the current executive branch. The court concluded that the Biden administration’s “position arguably overstates the law,” noting that the Supreme Court has not “rule[d] out the possibility of a former President overcoming an incumbent President on executive privilege matters.”
“Further, just this year,” Cannon continued, “the Supreme Court noted that, at least in connection with a congressional investigation, ‘[t]he questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege, are unprecedented and raise serious and substantial concerns.’” To protect former President Trump’s ability to raise a question of executive privilege, then, a special master should review the documents and make an initial assessment, the court concluded.
This analysis tees up the possibility that Trump will later assert executive privilege, prompting a showdown with the Biden administration.
4. Members of the Investigative Team Saw Confidential Attorney-Client Documents
While the Biden administration had not reviewed the seized documents to assess any potential executive privilege concerns, a Privilege Review Team had screened the material to determine if it is protected by attorney-client privilege. Because it had already screened the material, the government objected to the appointment of a special master to conduct “another round of screening,” arguing in essence, that such screening would be “unnecessary.”
“The Court takes a different view on this record,” Cannon explained in rejecting the government’s argument. The court then stressed that the evidence suggests the Privilege Review Team’s initial screening for potentially privileged material was faulty.
“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,” Cannon noted. “Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process.”
The federal judge further expressed concern about the fact that “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,” with the “tainted members” being the ones who had seen the material presumed protected by attorney-client privilege.
While a special master cannot address the issue of the “tainted members” on the investigative team, the court’s highlighting of the problem will likely push the DOJ to keep those agents away from any related part of the investigation. But what the special master can do is review the documents and determine if others were protected by attorney-client privilege. If so, the DOJ will have bigger problems.
5. DOJ Seized a Lot of Personal Material
Another revelation from Monday’s order concerned the amount of personal material the FBI seized. “The Government’s inventory reflects a seizure of approximately 11,000 documents and 1,800 other items from Plaintiff’s residence,” the court wrote. Of the material seized, the court said approximately 100 documents contained classification markings. But the FBI also seized some 500 pages of material potentially protected by attorney-client privilege, medical documents, correspondence related to taxes, and accounting information.
Further, as the court noted, “the Government also has acknowledged that it seized some “[p]ersonal effects without evidentiary value.” And “some of the seized items (e.g., articles of clothing)” were “readily identifiable as personal property.” The FBI had also seized three of Trump’s passports, but those items have already been returned to the former president.
That the FBI seized Trump’s passports, articles of clothing, medical records, and accounting and tax documents during the raid of Mar-a-Lago highlights both the breadth (and lack of particularity) of the search warrant and the potential for the Biden administration to use the search as a fishing expedition.
6. FBI Suggested Trump Committed a Crime by Returning a Torn-Up Document to the NARA
The sixth revelation came not directly from the court’s opinion but from the government filings referenced in Monday’s order and specifically the DOJ’s response brief in opposition to Trump’s request for the appointment of a special master.
In its response brief, the government wrote that on February 9, 2022, the special agent in charge of NARA’s Office of the Inspector General made a referral of Trump to the DOJ. The government further explained that “the NARA Referral was made on two bases: evidence that classified records had been stored at the Premises until mid-January 2022, and evidence that certain pages of Presidential records had been torn up. Related to the second concern, the NARA Referral included a citation to 18 U.S.C. § 2071.”
This passage proves intriguing for two reasons. First, it appears the special agent in charge made a criminal referral of the former president because documents Trump had returned to the archivist had been torn up at some point. This reference screams “witch hunt,” which leads to the second point: The unredacted portions of the search warrant affidavit omit any reference to the torn documents.
The charade is over. The judge enjoined and rebuked the DOJ
Gosh, a judge citing the Constitution in relation to a decision about the persecution of Trump. No wonder the left is wild with rage. They like judges to ignore the Constitution and all laws and make purely political rulings.
What? she referred to the Constitution? Even a thought toward that or using it is FORBIDDEN(add creepy echo) We know the word democracy appears no where not one time in the founding documents, these socialists keep using the word repeatedly, but not the nations or the peoples democracy its nearly always referred to as “our” democracy. Much like some weird satanic religion or insiders super secret cult or club. ( the password is get trump)
The left goes nuts whenever the Constitution and laws and other shit they don’t like gets in the way of one of their pogroms.
09/06/22 – Highly classified documents held at Mar-a-Lago contained foreign nuclear secrets that only a Cabinet level official or higher could authorize others to know, report says: Some documents were so secret that just a few DOZEN people knew of their existence
Incompetence might be Trump’s last legal defense.
Comrade Greggie, are you running out of US media lies and now you have to resort to the British trash?
You are such scum.
There’s no conceivable justification for Trump having such material at Mar-a-Lago, or anywhere else. He can stall a month with a Special Master, but it won’t change a thing. Most likely the DoJ won’t even challenge the order. They don’t care about the material that might be filtered out. That’s not what the were concerned about.
Yeah, there is. He was not only the President of the United States, but one of the best. Far more then that lying, racist, America-hating socialist Obama, Trump deserves to have in his possession anything he deems important to him.
Once again, though, we catch you leftists trashing the Constitution and personal rights and lying your asses off about it. Seems to be a trend.
There’s no conceivable justification for Trump having such material at Mar-a-Lago, or anywhere else.
Yes there is. The justification has already been given. Trump has dirt on the Russia Collusion Hoax, so they are creating a “Classified Material Hoax” because the walls are closing in…for the deep state.
Bet your ass he made copies and it’s in the hands of those who will charge and prosecute these fools ones we restore the rule of law.
Foreign nations’ nuclear secrets were found by the FBI agents that raided Donald Trump’s home at the Mar-a-Lago country club in August.
Uh huh. After they created the Steele Dossier, what qualifications, and credibility, does the FBI have as this point???
None.
Only a village idiot would believe that real TS documents would be leaked by the Justice Department. That is a violation of as bad as you are blaming Trump! You believe this rubbish only because you lack the intelligence to understand what and why these leaks have been made.
Another failed media source, not credible, dismissed yet again.
@Greg
Remember when the FBI chased everyone off and went through Mar a Lago and collected God-knows-what from Trump’s home? Then, without anyone being able to know what they took, scurried back to Quantico with their bounty? So, who is it, besides the credibility-challenged (thanks to Democrats) FBI that says there actually are such documents among Trump’s and that they were with them when they left Mar a Lago?
Why are leaks so important and critical to the FBI?
Comrade Greggie; how the hell do you know what the DOJ will do? Do you, or one of your Chinese handlers, have a direct hot line to Merrick Garland? Or maybe you are relying on Peter Strzok, FBI roll model?
You have no idea what was at Mar-A-Lago, being guarded by Secret Service. You are just another nitwit who suffers from mass formation psychosis. How sad that you show up every afternoon with b/s you have gleened from the radical left wing thinking you are making a difference. The only thing you are making is manure.
The DoJ will chose the logical course. Appealing the Special Master order would only give Trump more of the delay he wants, moving the matter toward a higher legal venue where Trump appointed multiple judges. It could also risk setting an unwanted precedent. So, there’s nothing to be gained by appealing it.
The review process, on the other hand, will be relatively quick, and won’t remove any highly classified documents from consideration. Those are the ones that matter.
Was that so difficult? Nobody needed to speed-dial Merrick Garland or Peter Strzok.
@Greg
And indeed they have. Democrats have no possible chance of beating Trump in a fair election, so they have to destroy Trump. Logically, they use the DOJ to stage a raid on Trump’s home, take documents, then leak false stories about what has been found. It’s a logical conclusion Democrats have drawn in numerous political races they are doomed to lose.
Ever heard the story of Chicken Little? It’s a parable. You could benefit from reading it.
Almost like clockwork, 3pm or later to begin his 12-hour shift. His pattern at times will take him into the early morning hours of eastern standard time.
greg is a chinese paid troll and not a good one at that
No, they do not matter. Under the Presidential Records Act, possession of documents classified or otherwise is not a violation of any law, period.
In this case all documents were unclassified.
While this distraction is glowing
have you seen what the proxy war costing us billions is doing?
Jail time in Switzerland for turning the thermostat above 66 this winter
European natural gas prices jumping 20x
European electricity prices doubling YTD
Metals industry in EU likely to collapse
European farmers being forced to use less fertilizer
Dutch farmers cant raise meat.
People in Russia paying less for food.
I would like to know what they didn’t take? Baron’s stuffed animals?
They left their honor behind, that’s for sure.
That death ray he’s been working on.
Geoffrey Berman’s book Holding the Line, going public tomorrow, is going to be a serious bombshell.
@Greg
Oh, another one? How exciting.
How about Hunter’s laptop? Now, THAT’S a bombshell.