A federal judge in Florida gave notice Saturday of her “preliminary intent” to appoint an independent arbiter, known as a special master, to conduct a review of the highly sensitive documents that were seized by the FBI this month during a search of Mar-a-Lago, former President Donald Trump’s club and residence in Palm Beach, Florida.
In an unusual action that fell short of a formal order, the judge, Aileen M. Cannon of the U.S. District Court for the Southern District of Florida, signaled that she was inclined to agree with the former president and his lawyers that a special master should be appointed to review the seized documents.
But Cannon, who was appointed by Trump in 2020, set a hearing for arguments in the matter for Thursday in the federal courthouse in West Palm Beach — not the one in Fort Pierce, Florida, where she typically works.
On Friday night, only hours after a redacted version of the affidavit used to obtain the warrant for the search of Mar-a-Lago was released, Trump’s lawyers filed court papers to Cannon reiterating their request for a special master to weed out documents taken in the search that could be protected by executive privilege.
Trump’s lawyers had initially asked Cannon on Monday to appoint a special master, but their filing was so confusing and full of bluster that the judge requested clarifications on several basic legal questions. The notice by Cannon on Saturday was seen as something of a victory in Trump’s circle.
A different federal judge, Bruce E. Reinhart, a magistrate judge in West Palm Beach, ordered the unsealing of the warrant affidavit. The document said, among other things, that the Justice Department wanted to search Mar-a-Lago to ensure the return of highly classified documents that Trump had removed from the White House, including some that department officials believed could jeopardize “clandestine human sources” who worked undercover gathering intelligence.
Special masters are not uncommon in criminal investigations that include the seizure by the government of disputed materials that could be protected by attorney-client privilege. A special master was appointed, for example, after the FBI raided the office of Trump’s longtime personal lawyer Michael Cohen in 2018 and took away evidence that Cohen and Trump claimed should have been kept from investigators because of the nature of their professional relationship.
In the case of the search of Mar-a-Lago, Trump’s lawyers have argued that some of the documents taken by the FBI could be shielded not by attorney-client privilege, but rather by executive privilege, a vestige of Trump’s service as president. But legal scholars — and some judges — have expressed skepticism that former presidents can unilaterally assert executive privilege over materials related to their time in office once they leave the White House.
In December, for example, a federal appeals court in Washington ruled that, despite his attempts to invoke executive privilege, Trump had to turn over White House records related to the attack on the Capitol to the House committee investigating the Jan. 6, 2021, riot.
In her notice on Saturday, Cannon gave the Justice Department until Tuesday to file a response to Trump’s request. The judge also instructed prosecutors to send her under seal “a more detailed receipt” specifying the items that were seized by federal agents during the search of Mar-a-Lago on Aug. 8. As part of their initial request, Trump’s lawyers had asked for a complete inventory of what was taken, arguing that the receipt the FBI had given them was insufficient.