Judge Aileen M. Cannon told Donald Trump’s lawyers Thursday that they did not need to comply with an order from special master Raymond J. Dearie and state in a court filing whether they believe FBI agents lied about documents seized from the former president’s Florida residence.
Thursday’s ruling was the first clash between Cannon, a Trump appointee who has generally shown the former president deference in litigation over the Mar-a-Lago investigation, and Dearie, a federal judge she appointed as an outside expert in the case, who appears to be far more skeptical of Trump.
After Trump’s lawyers requested a special master, Cannon chose Dearie to review approximately 11,000 documents seized Aug. 8 from Trump’s Mar-a-Lago Club and residence and determine whether any should be shielded from investigators because of attorney-client or executive privilege.
An appeals court separately overruled Cannon’s decision that about 100 additional documents that the government says are classified — some of them top-secret — should be part of Dearie’s review.
Dearie last week told the former president’s legal team that it couldn’t suggest in court filings that the government’s description of the seized documents — including whether they were classified — was inaccurate without providing any evidence. He ordered them to submit to the court by Oct. 7 any specific inaccuracies they saw in the government’s inventory list of seized items.
It would have been a key test of Trump’s legal strategy, as his lawyers decided whether to back up Trump’s controversial public claims that the FBI planted items at his residence and that he had declassified all the classified documents before leaving office — or whether they would take a more conciliatory approach.
But according to Cannon, who has the authority to overrule Dearie’s orders, such a decision is not required right now.
“There shall be no separate requirement on Plaintiff at this stage, prior to the review of any of the Seized Materials, to lodge ex ante final objections to the accuracy of Defendant’s Inventory, its descriptions, or its content,” Cannon wrote.
The Justice Department could appeal.
Trump’s legal team has argued that answering questions about the inventory list and whether the documents are classified could put them at a disadvantage in the face of a possible future criminal prosecution, or a future legal fight over getting the seized documents returned to Trump.
When Trump defense attorney James M. Trusty told Dearie earlier this month that he should not be forced to disclose declarations and witness statements yet, Dearie replied: “My view is you can’t have your cake and eat it.”
Cannon also addressed ongoing disputes Thursday over deadlines set by Dearie as part of his review, siding with Trump’s team and extending the special master review deadline to Dec. 16. She had originally said Dearie could have until around Thanksgiving to settle any disagreements the two parties had over privilege issues.
Dearie had suggested he could work on a more expedited schedule and told the parties they would need to finish their portions of the review by Oct. 21. Trump’s team had pushed back against that deadline, saying it was too fast and that they couldn’t find a vendor to scan the documents that was willing to work on that timeline.
“This modest enlargement is necessary to permit adequate time for the Special Master’s review and recommendations given the circumstances as they have evolved since entry of the Appointment Order,” Cannon wrote in her order.
When Cannon decided to appoint a special master, she said the review should include the seized classified documents. She also barred the Justice Department from accessing the classified documents for its criminal probe until they were reviewed.
But the Justice Department successfully appealed that part of the decision, with the U.S. Court of Appeals for the 11th Circuit ruling last week that the classified material should not be part of the special master review and that the FBI could use it right away.
Trump’s lawyers argued in court filings against the Justice Department’s appeal, saying that the government “has not yet proven” that the documents in the case are classified.
The Washington Post has reported that among the classified materials the FBI retrieved from Mar-a-Lago was a document describing a foreign government’s military defenses, including its nuclear capabilities, according to people familiar with the search, who spoke on the condition of anonymity to describe sensitive details of an ongoing investigation.
Some of the documents were so highly restricted that only the president, some members of his Cabinet or a near-Cabinet-level official could authorize other government officials to know details of them, the people said. One government filing noted that counterintelligence FBI agents and prosecutors investigating the Mar-a-Lago documents were not authorized at first to review some of the material seized.