More legal maneuverings on the Mar a Lago documents

U.S. District Judge Aileen Cannon in the Southern District of Florida issued a preliminary order on Saturday giving notice of the judge’s intention to appoint a special master to review the documents seized by the FBI from Mar a Lago on August 8.  A special master is a lawyer appointed by the court to review evidence with an eye toward identifying anything that may come under the attorney-client privilege which protects communications between a person and the lawyer he or she hired in a criminal matter, although a special master can be appointed to review documents in a civil lawsuit as well. 

The judge ordered the Department of Justice to file under seal a “more detailed Receipt of Property” seized on August 8, along with a notice to the court of the status of the Privilege Review Team appointed by the DOJ to go through the documents. 

The DOJ responded to the judge’s order this morning, agreeing to file a more detailed Receipt of Property, and noted that its own Privilege Review Team had found what it called a “limited set of materials that potentially contain attorney-client privileged information.”  The DOJ filing also noted that the department is “in the process of following the procedures set forth in paragraph 84 of the search warrant affidavit to address potential privilege disputes, if any.”

That last little part of the filing is interesting because the DOJ is putting the judge on notice that its procedures in dealing with the privilege issue are in accordance with a search warrant issued by a different federal judge, and those procedures may conflict with what this federal judge eventually rules on concerning the privileged materials.

It was noted at the time Trump filed his motion asking for a special master that he apparently went “judge shopping” looking for a federal judge Trump himself appointed who might be more amenable to Trump’s wishes concerning what to do about the documents seized at Mar a Lago.  Trump has been quoted several times as telling associates that the documents are “mine,” and it may be that his filing for the appointment of a special master is the first shot he is firing in what could become a battle to take back possession of the documents from the Department of Justice.

To which most legal experts have essentially responded, “good luck with that.”

The DOJ also put Judge Cannon on notice that it is working with the Director of National Intelligence on a classification review of the documents, and that the Director of National Intelligence is “leading an intelligence community assessment of potential risk to national security that would result from disclosure of the materials.”

This sentence in the filing is significant for a number of reasons.  The judge in Florida is being told that the documents seized at Mar a Lago have already been reviewed by the DOJ and are considered significant enough that the department has reached across the federal government to the Director of National Intelligence for help in determining just how important are the secret documents – the “classification review” that is already underway – and how dangerous it would be if any of the secret or top secret documents were disclosed.

There is no indication in Trump’s filing requesting the appointment of a special master that he intends to disclose the documents.  Therefore, any potential or actual “disclosure” the DOJ refers to could only come from its review of the documents themselves and evidence the department may have gathered that Trump has already disclosed the secret and top-secret documents to someone known or unknown to the DOJ.

The DOJ previously subpoenaed tapes from surveillance cameras at Mar A Lago.  Trump did not contest the subpoena and so the DOJ is now in possession of those tapes.  Based on what it observed on the tapes in its possession, the DOJ issued a new subpoena for more surveillance tapes.  But the tapes they already have show who entered the areas of Mar a Lao where Trump kept the classified documents he removed from the White House.  The tapes are said to reveal people moving the boxes of classified documents around Mar a Lago from one location to another.  The DOJ has already asserted in its application for a search warrant that there are no areas of Mar a Lago currently authorized for the storage of classified materials, and the “SCIF” which was installed during Trump’s presidency was removed not long after he left office.

So in the gentle language of legalese, the DOJ is very strongly indicating to Judge Cannon that she can order whatever attorney-client privilege review she wants, but the department has already determined that potential crimes involving the sharing or disclosure of classified information may have already been committed, and that has caused the DOJ to involve not only the Director of National Intelligence, but the “intelligence community” at large in assessing what damage might have been done to national security.  The “intelligence community” encompasses all the agencies whose secrets may have been compromised, including but not limited to the Central Intelligence Agency, the National Security Agency, the Defense Intelligence Agency, and the FBI itself.

So, the filings by Trump and the orders of a federal judge in Florida and the responses by the Department of Justice may look like a ping-pong match of legal maneuvering, but beneath the surface of the legal-speak is some serious drama.  The DOJ has not yet issued what is called a “target letter” to Trump through his attorneys, but the filing in Florida today indicated strongly to the federal judge that she is dealing with a situation that is much larger than she may think, and it involves not only matters of national security, but potential legal jeopardy for the former president of the United States.

Reading between the lines of its filing, the DOJ came as close as it dared to implying that Trump is a target and that criminal charges involving the Espionage Act and obstruction of justice, not to mention the Presidential Record Act are already in the works.

Watch this space.