WEST PALM BEACH, Fla. — A federal judge signaled Thursday that she remained open to granting former President Donald Trump’s request to appoint an independent arbiter to go through documents the FBI seized from him last month but stopped short of making a final decision.
After a nearly two-hour hearing, Judge Aileen Cannon of the U.S. District Court for the Southern District of Florida, reserved judgment on the question of whether to appoint a so-called special master in the case, saying she would issue a written order “in due course.”
Notably, Cannon did not direct the FBI to stop working with the files, which the Justice Department has said have already undergone a preliminary review by law enforcement officials.
Cannon, who was appointed by Trump in 2020, also indicated that she would unseal a more detailed list of the documents the FBI took during its Aug. 8 search of Mar-a-Lago, Trump’s private club and residence in Florida. She had earlier ordered the Justice Department to provide the list to Trump’s legal team at its request. It was not clear when it would become public.
During the hearing, Cannon pressed the government to explain what harm could come from appointing a special master.
Jay Bratt, head of the Justice Department’s counterintelligence section, told her that a special master could slow down an assessment of the risk and damage to national security being conducted by the Office of the Director of National Intelligence — as well as an assessment of whether the seized documents contain the sort of national security secrets whose unauthorized retention is a crime under the Espionage Act.
“We are dealing with over 300 records here” that had classification markings on them, Bratt said. “That process has begun. That process needs to continue.”
But Cannon appeared to suggest that if she did appoint a special master, she would do so in a way that would not hinder the security risk assessment.
She also left unclear whether she would limit the scope of any special master’s work to setting aside a small number of documents that may be subject to attorney-client privilege.
The FBI has said it has already identified and set aside about 60 such documents, suggesting that a special master focused on that topic would not disrupt the Justice Department’s inquiry.
But Trump’s legal team also wants a potential special master to scrutinize the seized materials for any shielded by executive privilege, which protects confidential internal executive branch communications from disclosure.
The Justice Department has said that executive privilege cannot be used to keep a part of the executive branch, like the department itself, from reviewing government files as part of its official responsibilities.
During the hearing, one of Trump’s lawyers, James Trusty, called the appointment of a special master a “really modest idea.”
But one of the Justice Department lawyers, Julie Edelstein, countered that if a special master went beyond setting aside attorney-client privileged files and delved into executive privilege issues, “it would not be modest — it would be unprecedented.”
“There is no role for a special master to play in executive privilege,” Edelstein added.
Cannon appeared less certain, however, telling Edelstein: “I’m not sure it’s as cut and dried” as the government has argued.
At another point, Trusty sought to play down the gravity of the Justice Department’s investigation of Trump, comparing his client’s repeated failures to return government-owned documents to the National Archives or to fully respond to the grand jury subpoena seeking the return of those marked as classified to an “overdue library book.”
Trusty also said the Trump legal team did not concede that the documents were classified. But he did not put forward the claim, which Trump has made on his social media platform and in interviews with conservative news outlets, that he had declassified everything he took with him from the Oval Office.
No meaningful evidence has emerged to support the existence of such an order by Trump, who made the claim after the FBI search. The Justice Department has said Trump’s lawyers did not assert that the documents had been declassified during earlier interactions with the government, including over the subpoena requiring the return of the materials.
That disconnect echoed a pattern from Trump’s unsuccessful efforts to challenge the results of the 2020 election, when he and his lawyers proclaimed wild conspiracy theories to the public but were more cautious in court, where there are professional consequences for lawyers who lie.
Although the appointment of a special master is a not-uncommon procedural step in complex cases, the hearing in front of Cannon followed a battle waged this week in court papers, reflecting the extraordinary nature of the investigation.
The papers filed by both sides often seemed to be as much about courting public opinion as about the underlying legal issues.
In a filing Tuesday night, for instance, prosecutors included a striking photograph, taken to catalog the evidence they had seized, of folders labeled “Top Secret,” which the FBI had taken from Trump’s personal office at Mar-a-Lago and arrayed on a carpet.
The filing also detailed how Trump and his lawyers had repeatedly frustrated the government’s attempts to get the materials back, including evidence that Trump’s circle had concealed some files marked as classified and falsely said that all were turned over in response to a subpoena.
On Wednesday night, Trump’s lawyers shot back with a filing that described the Mar-a-Lago search as “unprecedented, unnecessary and legally unsupported” and suggested that the photo had been staged “for dramatic effect.” They also argued that Trump had done nothing wrong by holding onto White House records because they were “his own presidential records.”
But that characterization clashed with the Presidential Records Act of 1978, which makes clear that the government, not the president or a former president, owns White House files generated during his time in office.