Judge Overrules Special Master’s Demands to Trump in Document Review

 

Judge Overrules Special Master’s Demands to Trump in Document Review

 

The dueling moves by Judge Aileen M. Cannon and a special master she appointed reflected a larger struggle over who should control the rules of the review — and whom those rules would favor.

 

By Charlie Savage and Alan Feuer

Sept. 29, 2022

https://www.nytimes.com/2022/09/29/us/trump-special-master-documents.html

 

WASHINGTON — A federal judge on Thursday set aside a measure imposed by a special master asking former President Donald J. Trump to certify the accuracy of the F.B.I.’s inventory of the property it had seized from his Florida estate last month, overruling an arbiter she had appointed herself.

 

The decision, included in a six-page order issued by Judge Aileen M. Cannon, was among several to ease demands by the special master, Judge Raymond J. Dearie. Under requirements he put in place in recent days, Mr. Trump’s lawyers would have been forced to test excuses they have made in connection with the trove of documents taken from his estate, Mar-a-Lago.

 

Judge Cannon also rejected a swift timetable Judge Dearie had set to resolve the review of the documents, slowing the matter down.

 

Judge Dearie’s request that Mr. Trump’s lawyers certify by Friday the accuracy of the F.B.I.’s inventory — and indicate whether there was anything in it that agents had not taken from Mar-a-Lago — had put Mr. Trump and his lawyers in a bind. If they acknowledged that the bureau had found sensitive documents, the admission could be used as evidence against Mr. Trump.

 

Moreover, in public statements, Mr. Trump has repeatedly accused F.B.I. agents of planting evidence during their search. The certification that Judge Dearie requested would have required Mr. Trump’s lawyers to either disavow those claims or repeat them in court, where they could face professional consequences for lying.

 

In her ruling on Thursday, Judge Cannon, a Trump appointee, sided with the former president, eliminating the stipulation about the inventory. Her initial order, she said, “did not contemplate that obligation.”

 

“There shall be no separate requirement on plaintiff at this stage, prior to the review of any of the seized materials,” she wrote.

 

As the judge who appointed the special master, Judge Cannon has the authority to overrule Judge Dearie. But she herself has partly been overruled as well: A federal appeals court in Atlanta exempted documents with classification markings from the special master’s review and allowed the Justice Department to continue using them in its investigation, blocking part of her original order.

 

Judge Dearie had also directed Mr. Trump’s legal team to sort any documents over which he intended to assert executive privilege into two categories: privilege that would shield White House information from disclosure to people outside the executive branch, like Congress, and privilege that would purportedly shield such information from review within the executive branch.

 

By asking Mr. Trump’s lawyers to do so, Judge Dearie was forcing them to confront the weakness many legal experts say lies at the heart of their contention that executive privilege is relevant in this context: namely, that the Justice Department is itself part of the executive branch.

 

Mr. Trump’s legal team also objected to that requirement, saying Judge Cannon had not given the special master permission to make them engage in such a distinction. On Thursday, Judge Cannon appeared to side with Mr. Trump on that issue, too.

 

Mr. Trump’s lawyers need only say whether something was subject to executive privilege — and, if so, to include a statement with “a sufficient description of the rationale and scope of the assertion from which to evaluate the merits of the assertion,” she said.

 

Judge Dearie had set a brisk schedule for the review. He gave Mr. Trump’s team deadlines in October to finish categorizing the materials in tranches, and he apparently envisioned writing interim reports for Judge Cannon about them.

 

But Mr. Trump’s lawyers have complained that the review was too fast; Judge Cannon on Thursday slowed down the process, giving Mr. Trump’s lawyers significantly more time to assess the documents.

 

Under Judge Dearie’s proposal, he could have analyzed the central issue raised by Mr. Trump’s claims of executive privilege as soon as late October. But Judge Cannon’s order could delay his submission of a report and recommendations to her until December.

 

The decision by Judge Cannon to side with the former president in installing a special master surprised legal experts, who broadly condemned her legal reasoning.

 

The ruling by the appeals court freeing the Justice Department to resume its criminal investigation into Mr. Trump’s hoarding of sensitive government documents has raised the question of whether a special master’s review, now relegated to assessing unclassified records, has any significant upside for the former president.

 

Judge Dearie’s requirements had imposed significant disadvantages for Mr. Trump by threatening to swiftly puncture Mr. Trump’s defenses. But Judge Cannon’s intervention on Thursday eased that threat.

 

Charlie Savage is a Washington-based national security and legal policy correspondent. A recipient of the Pulitzer Prize, he previously worked at The Boston Globe and The Miami Herald. His most recent book is “Power Wars: The Relentless Rise of Presidential Authority and Secrecy.” @charlie_savage • Facebook

 

Alan Feuer covers extremism and political violence. He joined The Times in 1999. @alanfe